(A)   Purpose and authority. The Crystal Airport Joint Airport Zoning Board, created and established by joint action of the Metropolitan Airports Commission and the Cities of Crystal, Brooklyn Park, Brooklyn Center, Minneapolis, New Hope, and Robbinsdale, pursuant to the provisions and authority of M.S. § 360.063, hereby finds and declares that:

      (1)   An airport hazard endangers the lives and property of users of the airport and property or occupants of land in its vicinity, and also may reduce the size of the area available for the landing, takeoff, and maneuvering of aircraft, thus tending to destroy or impair the utility of the airport and the public investment therein.

         (a)   The creation or establishment of an airport hazard is a public nuisance and an injury to the region served by the airport.

   (C)   Definitions and rules of construction.

      (1)   Definitions. As used in this section, unless otherwise expressly stated, or unless the context clearly indicates a different meaning, the words and phrases in the following list of definitions shall have the meanings indicated. All words and phrases not defined shall have their common meaning.

         AIRPORT. The Crystal Airport located in Hennepin County, Minnesota.

         AIRPORT BOUNDARY. The boundary shown on Figure 152.800.1 Airport Boundary, attached hereto and made a part hereof.

         AIRPORT HAZARD. Any structure, tree, or use of land that obstructs the airspace required for, or is otherwise hazardous to, the flight of aircraft in landing or taking off at the airport; and, any use of land that is hazardous to persons or property because of its proximity to the airport.

         AIRPORT ZONING PERMIT. Zoning permits as required under division (H) below.

         AIRSPACE SURFACES. The surfaces established in division (D)(1).

         AIRSPACE ZONES. The land use zones established in division (D)(1).

         BOARD OF ADJUSTMENT. The body established in division (M).

         COMMISSIONER. The Commissioner of the Minnesota Department of Transportation or, if either the position of Commissioner or the Minnesota Department of Transportation shall no longer exist or serve its present functions, such successor state official or officials or entity or entities as shall either singularly or collectively perform or serve such functions.

         CRYSTAL AIRPORT ZONING MAP. The Crystal Airport Zoning Map as defined in division (F)(3).

         EFFECTIVE DATE. The effective date set forth in division (R).

         EXISTING. The current layout of the airport environment, including alignment, location, and length of each runway at Crystal Airport at the time of this section’s on the effective date.

         FAA. The Federal Aviation Administration or, if the Federal Aviation Administration shall no longer exist or serve its present functions, such successor federal entity or entities as shall either singularly or collectively perform or serve such functions.

         FAA 7460 OBSTRUCTION EVALUATION. Established FAA process for conducting aeronautical studies conducted under the provisions of Title 14 CFR, Part 77 (for proposed construction or alteration) or Federal Aviation Act of 1958 (for existing structures), or any successor to this process.

         LOT. A designated parcel, tract, or area of land established by plat or subdivision, or otherwise permitted by law.

         NON-CONFORMING STRUCTURE. Any structure in existence in any airspace zone or land use zone but not conforming to the provisions of this section on the effective date.

         NON-CONFORMING USE. Any use of land in existence in any airspace zone or land use zone but not conforming to the provisions of this section on the effective date.

         PERSON. Any individual, firm, partnership, corporation, company, association, joint stock association, or body politic, and includes a trustee, receiver, assignee, administrator, executor, guardian, or other representative.

         RUNWAY. Any existing surface of the airport which is specifically designated and used to be used for the landing and/or taking off of aircraft. The individual runways at the airport are defined in this section based on the compass heading of landing and departing aircraft.

         RUNWAY 14-32. The existing 3,750-foot non-precision primary runway. The Runway 14 end is within the City of Brooklyn Park, and the Runway 32 end is within the City of Crystal.

         RUNWAY 6L-24R. The existing 2,500-foot visual crosswind runway. Both the Runway 6L and 24R ends are within the City of Crystal.

         RUNWAY 6R-24L. The existing 1,669-foot visual crosswind runway. Both the Runway 6R and 24L ends are within the City of Crystal.

         RUNWAY PROTECTION ZONE. A zone mandated by FAA regulations that is longitudinally centered on the extended centerline at each end of Runways 14-32, 6L-24R and 6R-24L, whose inner edge is at the same width and elevation as, and coincides with, the end of the primary surfaces for Runway 14-32 (500 feet), Runway 6L-24R (250 feet), and Runway 6R-24L (250 feet). The Runway 14-32 protection zone extends outward a horizontal distance of 1,000 feet, expanding uniformly to a width of 700 feet. Runways 6L-24R and 6R-24L have protection zones extending outward a horizontal distance of 1,000 feet, expanding uniformly to a width of 450 feet.

         LAND USE ZONES. The land use zones established in division (E)(1).

         SCHOOL. Any private or public educational institution for people in kindergarten through grade 12 and any private or public day care or pre-school facility that enrolls more than 50 children.

         SLOPE. An incline from the horizontal expressed in an arithmetic ratio of horizontal magnitude to vertical magnitude.

         STRUCTURE. Anything anchored, attached, built, constructed, erected, gathered, located, placed, or piled on the ground or in or over a water body, whether temporary or permanent, moveable or immovable, including antennae, buildings, canopies, cranes, decks, derricks, docks, edifices, equipment, fences, overhead transmission lines, patios, piers, piles, ponds, posts, roadways, signs, smokestacks, towers, utility poles, wires, and anything attached to any of the foregoing either temporarily or permanently.

         TREE. Any object of natural growth.

         ZONING ADMINISTRATOR. The public official in each affected municipality as set forth in division (K)(2).

      (2)   Rules of construction. In the construction of this section, the following rules shall be observed and applied, except where the context clearly indicates otherwise.

         (a)   Computing time. In computing the period of time within which an act may or must be done, the first calendar day from which the designated period of time begins to run shall not be included. The last day of the period shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which case the period shall run until the end of the next day which is not a Saturday, Sunday, or legal holiday.

         (b)   Conflicts between ordinance provisions. If a provision of this section conflicts with any other provision of this section, the more restrictive provision shall prevail.

         (c)   Height. Height shall be expressed as elevation in feet above mean sea level, North American Vertical Datum, 1988 Adjustment, except in reference to maximum construction height without an airport zoning permit when it shall be expressed as distance in feet above ground shown on the maximum construction heights without permit plates in the Crystal Airport Zoning Map.

         (d)   Including, not limited to. The word "including" means including but not limited to.

         (e)   Land to include water surfaces and bodies. The word "land" shall include water bodies and surfaces for the purpose of establishing airspace zones and land use zones.

         (f)   May, permissive. The word "may" is permissive.

         (g)   Shall, mandatory. The word "shall" is mandatory and not discretionary.

         (h)   Singular and plural. The singular shall include the plural, and the plural the singular.

         (i)   Tense. The present tense shall include the future.

   (D)   Airspace obstruction zoning.

      (1)   Airspace surfaces and zones. In order to carry out the purpose of this section as set forth in division (A), the following airspace surfaces and airspace zones are hereby established, subject to the airspace zoning limits in division (F)(1).

         (a)   Primary surface. An imaginary surface longitudinally centered on each Runway extending 200 feet beyond each end of Runways 14-32, 6L-24R, and 6R-24L. Runway 14-32 has uniform width of 500 feet, while Runways 6L-24R and 6R-24L have a uniform width of 250 feet. The elevation of any point on the primary surface is the same as the elevation of the nearest point on the runway centerline.

         (b)   Primary zone. All that land which lies directly under a primary surface.

         (c)   Horizontal surface. An imaginary surface that is 1,019.3 feet above mean sea level, the perimeter of which is constructed by swinging arcs of specified radii from the center of each end of the primary surface of each runway and connecting the adjacent arcs by lines tangent to those arcs. The radius of each arc is 5,000 feet for runways 14-32, 6L-24R, and 6R-24L.

         (d)   Horizontal zone. All that land which lies directly under the horizontal surface.

         (e)   Conical surface. An imaginary surface extending upward and outward from the periphery of the horizontal surface at a slope of 20:1 for a horizontal distance of 4,000 feet as measured radially outward from the periphery of the horizontal surface.

         (f)   Conical zone. All that land which lies directly under the conical surface.

         (g)   Approach surface. An imaginary surface longitudinally centered on the extended centerline at each end of Runways 14-32, 6L-24R, and 6R-24L. The inner edge of this surface is at the same width and elevation as, and coincides with, the end of the primary surface. For Runways 14-32, 6L-24R, and 6R-24L, this surface inclines upward and outward at a slope of 20:1 for a horizontal distance of 5,000. For Runway 14-32, the outer width of this surface is 2,000 feet. For both Runways 6L-24R and 6R-24L, the outer width of this surface is 1,250 feet.

         (h)   Approach zone. All that land which lies directly under an approach surface.

         (i)   Transitional surface. An imaginary surface extending upward and outward at right angles to the centerline and extended centerline of Runways 14-32. 6L-24R, and 6R-24L at a slope of 7:1 from both sides of each primary surface and from both sides of each approach surface of Runway 14-32, 6L-24R, and 6R-24L until it intersects the horizontal surface or the conical surface.

         (j)   Transitional zone. All that land which lies directly under a transitional surface.

      (2)   Height restrictions. Except as otherwise provided in this section, and except as necessary and incidental to airport operations, the following height restrictions shall apply. Where a lot is beneath more than one airspace surface, the height of the more restrictive (lower) airspace surface shall control.

         (a)   Structures. No new structure shall be constructed or established; and no existing structure shall be altered, changed, rebuilt, repaired, or replaced in any airspace zone so as to project above any airspace surface. Nor shall any equipment used to accomplish any of the foregoing activities be allowed to project above any airspace surface.

         (b)   Trees. No tree shall be allowed to grow or be altered, repaired, replaced, or replanted in any airspace zone so as to project above any airspace surface. Nor shall any equipment used to accomplish any of the foregoing activities be allowed to project above any airspace surface.

            1.   Public nuisance; order. If the whole or any part of any tree shall be determined to be an airport hazard by the FAA, or any successor entity, after proper investigation, the Zoning Administrator may issue an order in writing for the owner or owners, agent or occupant of the property upon which such hazardous tree is located, to forthwith cause such hazardous tree, or portion thereof if the removal of a portion will remove the hazard, to be taken down and removed.

            2.   Notice. Said order is to be mailed to the last known address of the owner, agent or occupant and shall be accompanied by a notice setting forth the authority to remove such hazardous tree at such owner's, agent's or occupant's expense in the event such owner, agent or occupant fails to comply with or file a notice of appeal from said order within ten days of mailing. The notice shall include instructions for filing a notice of appeal from said order.

            3.   Removal. If within ten days after said order has been mailed, as above provided for, the owner or owners, agent or occupant of the property upon which such hazardous tree is located neglects or refuses to comply with said order, or has failed to file a notice of appeal from said order with the Zoning Administrator, then the Administrator or its designee(s) may enter upon said premises and take down or remove said tree or portion thereof declared to be hazardous, and to do any and all things which in his opinion may be necessary for the protection of life, limb or property.

            4.   Assessment of expense. If, after the notice hereinbefore provided for has been given, the owner, agent or occupant has failed to remove such hazardous tree or portion thereof, and it becomes necessary for the Zoning Administrator to remove same, the Zoning Administrator or its designee shall mail a statement of the expense of such removal to the owner, agent or occupant of the property from which such tree or portion thereof has been removed, and if within 30 days therefrom the owner, agent or occupant has not remitted to the Zoning Administrator for the expense incurred by the Zoning Administrator in said removal, the Zoning Administrator or its designee may forthwith recover the amount of such expense from the owner or owners of said property in any civil court of competent jurisdiction, in the manner provided by law.

      (3)   FAA 7460 obstruction evaluation. All construction of new structures or alteration of existing structures in an airspace zone shall comply with the requirements for filing notice to the FAA under the FAA 7460 obstruction evaluation process.

   (E)   Land use zoning.

      (1)   Land use zones. In order to carry out the purpose of this section, as set forth in division (A), the following land use zones are hereby established, subject to the land use zoning limits in division (F)(2).

         (a)   Land Use Zone 1. Designated land, the extents of which are shown in Figure 152.800.2. Land Use Zone 1 overlies the runway protection zones.

         (b)   Land Use Zone 2. All land enclosed within the perimeter of the Horizontal Zone, as shown in Figure 152.800.3, except that land within Land Use Zone 1.

      (2)   Land use restrictions.

         (a)   General restrictions. Subject at all times to the height restrictions set forth in division (D)(2) and the FAA 7460 obstruction evaluation process, no use shall be made of any land in any of the land use zones that creates or causes interference with the operations of radio or electronic facilities at the airport or with radio or electronic communications between airport and aircraft, makes it difficult for pilots to distinguish between airport lights and other lights, results in glare in the eyes of pilots using the airport, impairs visibility in the vicinity of the airport, is deemed a "hazard" to air navigation by FAA or MNDOT as part of an FAA 7460 obstruction evaluation, or otherwise endangers the landing, taking off, or maneuvering of aircraft.

         (b)   Land Use Zone 1 restrictions. Subject at all times to the height restrictions set forth in division (D)(2) and to the general restrictions contained in division E(2)(a), areas designated as Land Use Zone 1 for each end of Runways 14-32, 6L-24R, and 6R-24L shall contain no buildings, exposed high-voltage transmission lines, or other similar land use structural hazards, and shall be restricted to those uses which will not create, attract, or bring together a dense, confined assembly of persons thereon. Permitted uses may include, but are not limited to, such uses as agriculture (seasonal crops), horticulture, animal husbandry, wildlife habitat, light outdoor recreation, cemeteries, roadways and vehicle parking, railroads, and other approved aeronautical uses. Where Land Use Zone 1 overlies the Runway Protection Zone, land uses and structures within the Runway Protection Zone will be governed by federal laws and regulations or by FAA advisory circulars, orders, or guidance.

         (c)   Land Use Zone 2 restrictions. No land use in Land Use Zone 2 shall violate the height restrictions set forth in division (D)(2) or the general restrictions contained in division (E)(2)(a).

   (F)   Airport zoning limits and Crystal Airport Zoning Map.

      (1)   Airspace zoning limits. Figure 152.800.4 Airport Boundary and Airspace Zoning Limits and Figure 152.800.5 Airport Boundary and Airspace Contours, attached hereto and made a part hereof, show these limits.

      (2)   Land use zoning limits. Figure 152.800.6 Airport Boundary and Land Use Zoning Limits, attached hereto and made a part hereof, shows these limits.

      (3)   Crystal Airport Zoning Map. The locations and boundaries of the airspace surfaces, airspace zones, land use zones, and the maximum construction heights without an airport zoning permit established by this section are set forth on the Crystal Airport Zoning Map consisting of 102 Plates- Airspace Zones, Plates A-A2 to A-F6; Maximum Construction Heights Without Permit, Plates MCH-A2 to MCH-F6; and Land Use Zones, Plates SZ-A2 to SZ-F6 prepared by the Metropolitan Airports Commission, attached hereto and made a part hereof. These plates, together with such amendments thereto as may from time to time be made, and all notations, references, elevations, heights, data, surface and zone boundaries, and other information thereon, shall be and the same are hereby adopted as part of this section.

   (G)   Non-conforming uses. The provisions of this section shall not be construed to require the removal, lowering, other change, or alteration of any non-conforming structure or tree, or otherwise interfere with the continuance of any non-conforming use. Non-conforming structures and non-conforming uses are permitted under this section, subject to the provisions in divisions (H) and (I). Nothing herein contained shall require any change in the construction, alteration, or intended use of any structure, the construction or alteration of which was begun prior to the effective date, and was diligently prosecuted and completed within two years of the effective date.

   (H)   Airport zoning permits.

      (1)   Permit required. The following activities shall not take place on a lot in any airspace zone or land use zone unless an airport zoning permit shall have been granted therefore by the Zoning Administrator for the jurisdiction in which the lot is located.

         (a)   Existing structures. Except as specifically provided in division (H)(2), no existing structure shall be altered, changed, rebuilt, repaired, or replaced.

         (b)   New structures. Except as specifically provided in division (H)(2), no structure shall be newly constructed or otherwise established.

         (c)   Non-conforming structures. No non-conforming structure shall be replaced, substantially altered or repaired, or rebuilt.

      (2)   Exception to permit requirement.

         (a)   Maximum construction height without a permit. No airport zoning permit shall be required for an existing structure to be altered, changed, rebuilt, repaired, or replaced on a lot, or for a new structure to be constructed or otherwise established on a lot, if the highest point on the structure or on any equipment used to accomplish any of the foregoing activities, whichever is higher (measured in feet from curb level or from natural grade at a point ten feet away from the front center of the structure, whichever is lower) does not exceed the maximum construction height above ground without an airport zoning permit shown for the lot on the applicable Maximum Construction Heights Without Permit Plate in the Crystal Airport Zoning Map.

         (b)   No violation of height or land use restriction permitted. Nothing in this shall be construed as permitting or intending to permit a violation or a greater violation of any provision of this section.

      (3)   Permit application. An airport zoning permit application for activities on a lot shall be made in the manner and on the form established by the Zoning Administrator of the jurisdiction in which the lot is located as designated in division (K)(2).

      (4)   Permit standard. An airport zoning permit shall be granted unless the Zoning Administrator determines that granting the permit (1) would allow a conforming structure or use to violate any provision of this section or (2) would permit a non-conforming structure or a non-conforming use to become a greater violation of any provision of this section. Any airport zoning permit may be granted subject to any reasonable conditions that the Zoning Administrator may deem necessary to effectuate the purpose of this section. In making any determination, the Zoning Administrator need not give public notice of, or hold a public hearing on, the airport zoning permit application or the determination.

      (5)   Abandoned or deteriorated non-conforming uses. Whenever a Zoning Administrator determines that a non-conforming structure, non-conforming use, or tree has been abandoned or more than 80% torn down, deteriorated, or decayed, no airport zoning permit shall be granted that would allow such non-conforming structure, non-conforming use, or tree to exceed the height restrictions of division (D)(2) or otherwise violate any provision of this section. Whether application is made for an airport zoning permit or not, a Zoning Administrator may order the owner of the abandoned, torn down, deteriorated, or decayed non-conforming structure, non-conforming use, or tree at the owner's expense, to lower, remove, reconstruct, or equip the same in the manner necessary to conform to the provisions of this section. In the event the owner shall neglect or refuse to comply with such order for ten days after receipt of written notice of such order, the Zoning Administrator may, by appropriate legal action, proceed to have the non- conforming structure, non-conforming use, or tree lowered, removed, reconstructed, or equipped and assess the cost and expense thereof against the land on which the non-conforming structure, non-conforming use, or tree is, or was, located. Unless such an assessment is paid within 90 days from the service of notice thereof on the owner of the land, the sum shall bear interest at the rate of 8% per annum from the date the cost and expense is incurred until paid, and shall be collected in the same manner as are general taxes, all as authorized by M.S. § 360.067.

   (I)   Variances.

      (1)   Variance application. Any person desiring to use his or her property in violation of any provision of this section, whether to construct or establish a new structure; to alter, change, rebuild, repair, or replace an existing structure; to allow a tree to grow higher; to alter, repair, replace, or replant a tree; or to otherwise use his or her property in violation of any provision of this section, may apply to the Board of Adjustment for a variance from such provision. A variance application shall be made by sending the application on the form provided by the Board of Adjustment by certified United States Mail to (1) the members of the Board of Adjustment and (2) the Board of Adjustment at the mailing address specified in division (L)(3). The applicant shall also mail a copy of the application by regular United States Mail to the Zoning Administrator of the jurisdiction in which the structure or property is located, as designated in division (K)(2). The Board of Adjustment may charge a fee for processing the application.

      (2)   Failure of Board to act. If the Board of Adjustment fails to grant or deny the variance within four months after the last Board member receives the variance application, the variance shall be deemed to be granted by the Board of Adjustment, but not yet effective. When the variance is granted by reason of the failure of the Board of Adjustment to act on the variance, the person receiving the variance shall send notice that the variance has been granted by certified United States Mail to (1) the Board of Adjustment at the mailing address specified in division (L)(3) and (2) the Commissioner. The applicant shall include a copy of the original application for the variance with the notice to the Commissioner. The variance shall be effective 60 days after this notice is received by the Commissioner, subject to any action taken by the Commissioner pursuant to M.S. § 360.063, Subd. 6.a.

      (3)   Variance standard. A variance shall be granted where it is found that a literal application or enforcement of the provisions of this section would result in practical difficulty or unnecessary hardship and relief granted would not be contrary to the public interest but do substantial justice and be in accordance with the spirit of this section and M.S. Chapter 360. Any variance granted may be granted subject to any reasonable conditions that the Board of Adjustment, or the Commissioner acting under division (I)(2), may deem necessary to effectuate the purpose of this section or M.S. Chapter 360.

   (J)   Hazard marking and lighting.

      (1)   Non-conforming structure. The Metropolitan Airports Commission may require the owner of any non-conforming structure to permit the installation, operation, and maintenance thereon of such markers and lights as shall be deemed necessary by the Metropolitan Airports Commission to indicate the presence of the structure to the operators of aircraft in the vicinity of the airport. Such markers and lights shall be installed, operated, and maintained at the expense of the Metropolitan Airports Commission.

      (2)   Permits and variances. Any airport zoning permit or variance granted by a Zoning Administrator or the Board of Adjustment may, if such action is deemed advisable to effectuate the purpose of this section and be reasonable in the circumstances, be granted subject to a condition that the owner of the structure in question permit the Metropolitan Airports Commission, at its expense, to install, operate, and maintain thereon such markers and lights as may be necessary to indicate to pilots the presence of an airport hazard.

   (K)   Zoning Administrator.

      (1)   Duties. It shall be the duty of each Zoning Administrator to administer and enforce the provisions of this section. Applications for airport zoning permits shall be made to a Zoning Administrator as provided herein. A Zoning Administrator may charge a fee for processing the application. Airport zoning permit applications shall be considered and acted upon by the Zoning Administrator in accordance with the provisions of this section and within the timelines established by M.S. § 15.99, as it may be amended. The Zoning Administrator shall remind each applicant that it is the responsibility of the applicant to record any conditions of an airport zoning permit, if required by law.

      (2)   Designated Zoning Administrators. For the purpose of this section, the Zoning Administrator shall be the official entitled as follows: the Crystal Zoning Administrator for lands located in the City of Crystal; the Brooklyn Park Zoning Administrator for lands located in the City of Brooklyn Park; the Brooklyn Center Zoning Administrator for lands located in Brooklyn Center; the Minneapolis Zoning Administrator for lands located in Minneapolis; the New Hope Zoning Administrator for lands located in New Hope; and the Robbinsdale Zoning Administrator for lands located in Robbinsdale. In the event that one or more of the above-described Zoning Administrators fails to administer or enforce this section as provided by law, the Crystal Airport Joint Airport Zoning Board hereby appoints the Metropolitan Airports Commission to administer or enforce this section in the municipality or municipalities. If any official position designated above as a Zoning Administrator ceases to exist or to perform or serve its present function, the successor position as designated by the applicable entity shall become the Zoning Administrator for that entity and shall perform or serve such functions.

   (L)   Board of Adjustment.

      (1)   Establishment of Board and selection of Chair. There is hereby established a Board of Adjustment that shall consist of five members appointed by the Metropolitan Airports Commission, and each shall serve for a term of three years and until a successor is duly appointed and qualified. Of the members first appointed, one shall be appointed for a term of one year, two for a term of two years, and two for a term of three years. Upon their appointment, the members shall select a chair to act at the pleasure of the Board of Adjustment. Members shall be removable by the Metropolitan Airports Commission for cause, upon written charges, after a public hearing.

      (2)   Board powers. The Board of Adjustment shall have the power to hear and decide appeals from any order, requirement, decision, or determination made by any Zoning Administrator or the Metropolitan Airports Commission in the enforcement of this section and to hear and grant or deny variances.

      (3)   Board procedures.

         (a)   Rules, meetings, and records. The Board of Adjustment shall adopt rules for its governance and procedure in harmony with the provisions of this section. Meetings of the Board of Adjustment shall be held at the call of the chair and at such other times as the Board of Adjustment may determine. The chair, or in his or her absence the acting chair, may administer oaths and compel the attendance of witnesses. All hearings of the Board of Adjustment shall be public. The Board of Adjustment shall keep minutes of its proceedings showing the vote of each member upon each question or, if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall immediately be filed in the offices of the Metropolitan Airports Commission and the Zoning Administrator of the jurisdiction in which the affected structure or lot is located, and shall be a public record.

         (b)   Written findings and conclusions. The Board of Adjustment shall make written findings of fact and conclusions of law giving the facts upon which it acted and its legal conclusions from such facts in affirming, modifying, or reversing an order, requirement, decision, or determination of a Zoning Administrator or the Metropolitan Airports Commission and in granting or denying a variance.

         (c)   Majority vote required. The concurring vote of a majority of the members of the Board of Adjustment shall be sufficient to affirm, modify, or reverse an order, requirement, decision, or determination of a Zoning Administrator or the Metropolitan Airports Commission, to decide to grant or deny a variance, or to act on any other matter upon which the Board of Adjustment is required to pass under this section.

         (d)   Mailing address. The mailing address for the Board of Adjustment is:

   (M)   Appeals.

      (1)   Who may appeal. Any person aggrieved, or any taxpayer affected by any order, requirement, decision, or determination of a Zoning Administrator made in administration of this section may appeal to the Board of Adjustment. Such appeals may also be made by any governing body of a municipality or county, or any joint airport zoning board, which is of the opinion that an order, requirement, decision, or determination of a Zoning Administrator is an improper application of this section as it concerns such governing body or board.

      (2)   Commencement of appeals. All appeals hereunder must be commenced within 30 days of a Zoning Administrator's decision by filing with the Zoning Administrator a notice of appeal specifying the grounds thereof. The Zoning Administrator shall forthwith transmit to the Board of Adjustment the notice of appeal and all papers constituting the record upon which the order, requirement, decision, or determination appealed from was taken.

      (3)   Stay of proceedings. An appeal shall stay all proceedings in furtherance of the order, requirement, decision, or determination appealed from, unless the Zoning Administrator certifies to the Board of Adjustment, after the notice of appeal has been filed with it, that by reason of the facts stated in the certificate a stay would, in the Zoning Administrator's opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed except by order of the Board of Adjustment on notice to the Zoning Administrator and on due cause shown.

      (4)   Appeal procedures. The Board of Adjustment shall fix a reasonable time for hearing an appeal, give public notice and due notice to the parties in interest, and decide the same within a reasonable time. At the hearing, any party may appear in person, by agent, or by attorney.

      (5)   Decision. The Board of Adjustment may, in conformity with the provisions of M.S. Chapter 360 and this section, affirm or reverse, in whole or in part, or modify the order, requirement, decision, or determination appealed from and may make such order, requirement, decision, or determination, as may be appropriate under the circumstances and, to that end, shall have all the powers of a Zoning Administrator.

   (N)   Judicial review. Any person aggrieved, or any taxpayer affected, by any decision of the Board of Adjustment or any action of the Commissioner taken under M.S. § 360.063, Subd. 6 or 6.a., or any governing body of a municipality or county, or any joint airport zoning board, which is of the opinion that an order, requirement, decision, or determination of the Board of Adjustment or action of the Commissioner is illegal, may seek judicial review as provided in M.S. § 360.072. The petitioner must exhaust the remedies provided in this section before availing himself or herself of the right to seek judicial review as provided by this section.

   (O)   Penalties and other remedies. Every person who violates any provision of this section, any zoning approval granted hereunder, any condition of any zoning approval granted hereunder, or any order, requirement, decision, or determination of a Zoning Administrator or the Board of Adjustment shall be guilty of a misdemeanor and shall be punished by a fine, imprisonment, or both of not more than the fine and imprisonment established for misdemeanors by state law. Each day a violation continues to exist shall constitute a separate offense for the purpose of the penalties and remedies specified in this section. This section may also be enforced through such proceedings for injunctive relief and other relief as may be proper under M.S. § 360.073, as it may be amended, and other applicable law.

(Ord. 2024-1304, passed 7-29-24)

   The legislature of the State of Minnesota has, in M.S. Ch. 103F and 462 delegated the responsibility to local government units to adopt regulations designed to minimize flood losses. The intent of the designation on a property is to protect and preserve areas and investments on properties that are subject to periodic inundation by flood waters. This designation includes Floodway (FW), Flood Fringe (FF) and General Flood Plain (FP). The Official Zoning Map together with all materials attached thereto is hereby adopted by reference and declared to be part of this chapter. The attached material includes the Flood Insurance Study for Hennepin County, Minnesota, and Incorporated Areas, dated November 4, 2016, and the Flood Insurance Rate Map panels enumerated as follows: 27053C0069F, 27053C0088F, 27053C0089F, 27053C0093F, 27053C0182F, 27053C0184F, 27053C0201F, 27053C0202F, 27053C0203F, 27053C0204F, 27053C0206F, 27053C0207F, 27053C0208F, 27053C0209F, dated November 4, 2016, all prepared by the Federal Emergency Management Agency. These materials are on file in the office of the City Clerk.

   (A)   Purpose. The purpose of these overlays includes:

      (1)   To protect areas with environmental sensitivity;

      (2)   To promote the public health, safety, and general welfare of the city;

      (3)   To minimize losses of life, property, health and safety hazards, disruption of commerce and governmental services, public expenditures for flood protection and relief, and impairment of the tax base due to periodic inundation;

      (4)   To comply with the rules and regulations of the National Flood Insurance Program codified as 44 CFR Parts 59 - 78, as amended, to maintain the community's eligibility in the National Flood Insurance Program; and

      (5)   To preserve the natural characteristics and functions of watercourses and flood plains in order to moderate flood and stormwater impacts, improve water quality, reduce soil erosion, protect aquatic and riparian habitat, provide recreational opportunities, provide aesthetic benefits and enhance community and economic development.

   (B)   General provisions.

      (1)   This subchapter adopts the flood plain maps applicable to the city and includes three flood plain districts: Floodway, Flood Fringe, and General Flood Plain.

         (a)   Where Floodway and Flood Fringe Districts are delineated on the flood plain maps, the standards in divisions (D)(3) or (D)(4) will apply, depending on the location of a property.

         (b)   Locations where Floodway and Flood Fringe Districts are not delineated on the flood plain maps are considered to fall within the General Flood Plain District. Within the General Flood Plain District, the Floodway District standards in division (D)(3) apply unless the floodway boundary is determined, according to the process outlined in division (D)(5). Once the floodway boundary is determined, the Flood Fringe District standards in division (D)(4) may apply outside the floodway.

      (2)   Lands to which subchapter applies. This subchapter applies to all lands within the jurisdiction of the city shown on the official zoning map or the attachments to the map as being located within the boundaries of the Floodway, Flood Fringe, or General Flood Plain Districts.

         (a)   The Floodway, Flood Fringe and General Flood Plain Districts are overlay districts that are superimposed on all existing zoning districts. The standards imposed in the overlay districts are in addition to any other requirements in this subchapter. In case of a conflict, the more restrictive standards will apply.

      (3)   Interpretation. The boundaries of the zoning districts are determined by scaling distances on the flood insurance rate map.

         (a)   Where a conflict exists between the flood plain limits illustrated on the official zoning map and actual field conditions, the flood elevations shall be the governing factor. The Zoning Administrator must interpret the boundary location based on the ground elevations that existed on the site on the date of the first National Flood Insurance Program map showing the area within the regulatory flood plain, and other available technical data.

         (b)   Persons contesting the location of the district boundaries will be given a reasonable opportunity to present their case to the Planning Commission and to submit technical evidence.

      (4)   Abrogation and greater restrictions. It is not intended by this subchapter to repeal, abrogate, or impair any existing easements, covenants, or other private agreements. However, where this subchapter imposes greater restrictions, the provisions of this subchapter prevail. All other ordinances inconsistent with this subchapter are hereby repealed to the extent of the inconsistency only.

      (5)   This subchapter does not imply that areas outside a flood hazard area will be free from flooding or flood damages. This subchapter does not create liability on the part of the city or any officer or employee for any flood damages that result from reliance on this section, or any administrative decision lawfully made based on regulations in this section.

      (6)   Severability. If any section, clause, provision, or portion of this subchapter is adjudged unconstitutional or invalid by a court of law, the remainder of this subchapter shall not be affected and shall remain in full force.

      (7)   Annexations. The flood insurance rate map panels adopted by reference into this section above may include flood plain areas that lie outside of the corporate boundaries of the city at the time of adoption of this subchapter. If any of these flood plain land areas are annexed into the city after the date of adoption of this subchapter, the newly annexed flood plain lands will be subject to the provisions of this subchapter immediately upon the date of annexation.

      (8)   Detachments. The flood insurance rate map panels adopted by reference into this section will include flood plain areas that lie inside the city at the time of adoption of this subchapter. If any of these flood plain land areas are detached from the city and come under the jurisdiction of another city after the date of adoption of this subchapter, the newly detached flood plain lands will no longer be subject to the provisions of this subchapter as of the date of detachment.

   (C)   Amendments and administration. All amendments to this subchapter must follow the procedures as defined in § 152.302.

      (1)   Designations shown on the zoning overlay map may not be removed unless an applicant provides evidence that the designation is in error or that the area has been filled to or above the elevation of the regulatory flood protection elevation and is contiguous to lands outside the flood hazard area. Special exceptions to this rule may be permitted by the Commissioner of Natural Resources determined that, through other measures, lands are adequately protected for the intended use.

      (2)   All amendments, either to the text of this section or the zoning overlay map must be submitted to and approved by the Commissioner of Natural Resources prior to adoption. Changes in the boundaries for flood hazard area must meet the Federal Emergency Management Agency's (FEMA) Technical Conditions and Criteria and must receive prior FEMA approval before adoption. The Commissioner of Natural Resources must be given ten days written notice of all hearings to consider an amendment to this section and said notice must include a draft of the amendment or technical study under consideration.

      (3)   Zoning Administrator. A Zoning Administrator or other official designated by the city shall administer and enforce this chapter. If the Zoning Administrator finds a violation of the provisions of this chapter the Zoning Administrator shall notify the person responsible for such violation in accordance with the procedures stated in division (H).

      (4)   Permit requirements.

         (a)   Permit required. For that portion of the property or structures in the flood plain, a permit issued by the Zoning Administrator in conformity with the provisions of this subchapter shall be secured prior to the erection, addition, modification, rehabilitation (including normal maintenance and repair over $500), or alteration of any building, structure, or portion thereof; prior to the use or change of use of a building, structure, or land; prior to the construction of a dam, fence, or on-site septic system; prior to the change or extension of a non-conforming use; prior to the repair of a structure that has been damaged by flood, fire, tornado, or any other source, and prior to the placement of fill, excavation of materials, or the storage of materials or equipment within the flood plain; relocation or alteration of a watercourse (including new or replacement culverts and bridges), unless a public waters work permit has been applied for; any other type of development as defined in this subchapter. Exceptions to this requirement include dog houses, non-habitable structures such as storage units less than 36 square fee in size, normal household storage, such as lawn furniture or equipment storage, such as a canoe, all of which may easily be moved if necessary and normal landscaping and maintenance, provided no fill is placed within the Flood Hazard Overlay.

         (b)   Notifications for watercourse alterations. The Zoning Administrator shall notify, in riverine situations, adjacent communities and the Commissioner of the Department of Natural Resources prior to the community authorizing any alteration or relocation of a watercourse. If the applicant has applied for a permit to work in the beds of public waters pursuant to M.S. Chapter 103G, this shall suffice as adequate notice to the Commissioner of Natural Resources. A copy of said notification shall also be submitted to the Chicago Regional Office of the Federal Emergency Management Agency (FEMA).

         (c)   Notification to FEMA when physical changes increase or decrease the 100-year flood elevation. As soon as is practicable, but not later than six months after the date such supporting information becomes available, the Zoning Administrator shall notify the Chicago Regional Office of FEMA of the changes by submitting a copy of said technical or scientific data.

      (5)   The Flood Plain District regulations adopted by this subchapter will be amended to incorporate any revisions by the Federal Emergency Management Agency to the flood plain maps adopted by this section.

   (D)   Floodway, Flood Fringe, and General Flood Plain performance standards and uses.

      (1)   Districts.

         (a)   Floodway District. The Floodway District includes those areas within Zones AE that have a floodway delineated as shown on the flood insurance rate map adopted in this section. For lakes, wetlands and other basins within Zones AE that do not have a floodway delineated, the Floodway District also includes those areas that are at or below the ordinary high water level as defined in M.S. § 103G.005, Subd. 14.

         (b)   Flood Fringe District. The Flood Fringe District includes areas within Zones AE that have a floodway delineated on the flood insurance rate map adopted in this section but are located outside of the floodway. For lakes, wetlands and other basins within Zones AE that do not have a floodway delineated, the Flood Fringe District also includes those areas below the 1% annual chance (100-year) flood elevation but above the ordinary high water level as defined in M.S. § 103G.005, Subd. 14.

         (c)   General Flood Plain District. The General Flood Plain District includes those areas within Zones A, AE, or AH that do not have a delineated floodway as shown on the flood insurance rate map adopted in this section.

      (2)   Applicability. Within the Flood Plain Districts established in this subchapter, the use, size, type and location of development must comply with the terms of this subchapter and other applicable regulations. In no cases shall flood plain development adversely affect the efficiency or unduly restrict the capacity of the channels or floodways of any tributaries to the main stream, drainage ditches, or any other drainage facilities or systems. All uses not listed as permitted uses or conditional uses in divisions (D)(3) through (5) below are prohibited. In addition, critical facilities, as defined in § 152.105, are prohibited in all Flood Plain Districts.

      (3)   Floodway District (FW).

         (a)   Permitted uses. The following uses, subject to the standards set forth in division (C)(2) and (E), are permitted uses if otherwise allowed in the underlying zoning district or any applicable overlay district:

            1.   General farming, pasture, grazing, outdoor plant nurseries, horticulture, truck farming, forestry, sod farming, and wild crop harvesting.

            2.   Industrial-commercial loading areas, parking areas, and airport landing strips.

            3.   Open space uses, including but not limited to private and public golf courses, tennis courts, driving ranges, archery ranges, picnic grounds, boat launching ramps, swimming areas, parks, wildlife and nature preserves, game farms, fish hatcheries, shooting preserves, hunting and fishing areas, and single or multiple purpose recreational trails.

            4.   Residential lawns, gardens, parking areas, and play areas.

            5.   Railroads, streets, bridges, utility transmission lines and pipelines, provided that the Department of Natural Resources Area Hydrologist is notified at least ten days prior to issuance of any permit.

         (b)   Standards for Floodway permitted uses.

            1.   The use must have a low flood damage potential.

            2.   The use must not obstruct flood flows or cause any increase in flood elevations and must not involve structures, obstructions, or storage of materials or equipment.

            3.   Any facility that will be used by employees or the general public must be designed with a flood warning system that provides adequate time for evacuation if the area is inundated to a depth and velocity such that the depth (in feet) multiplied by the velocity (in feet per second) would exceed a product of four upon occurrence of the regional (1% chance) flood.

            4.   No on-site sewage treatment, holding tanks or water supply systems are permitted in the floodway.

         (c)   Conditional uses. The following uses may be allowed as conditional uses following the standards and procedures set forth in division (K) and further subject to the standards set forth in division (C)(4), if otherwise allowed in the underlying zoning district or any applicable overlay district.

            1.   Structures accessory to the uses listed in divisions (C)(1)(a) through (c) and the uses listed in divisions (C)(3)(b) and (c).

            2.   Extraction and storage of sand, gravel, and other materials.

            3.   Marinas, boat rentals, docks, piers, wharves, and water control structures.

            4.   Storage yards for equipment, machinery, or materials.

            5.   Placement of fill or construction of fences that obstruct flood flows. Farm fencing, as defined in M.S. § 344.02, Subd. 1(a) - (d), is permitted as it relates to this section.

            6.   Travel-ready recreational vehicles meeting the exception standards in § 152.801(E).

            7.   Levees or dikes intended to protect agricultural crops for a frequency flood event equal to or less than the ten-year frequency flood event.

         (d)   Standards for Floodway conditional uses.

            1.   All uses. A conditional use must not cause any increase in the stage of the 1% chance or regional flood or cause an increase in flood damages in the reach or reaches affected.

            2.   Fill; storage of materials and equipment:

               a.   The storage or processing of materials that are, in time of flooding, flammable, explosive, or potentially injurious to human, animal, or plant life is prohibited.

               b.   Fill, dredge spoil, and other similar materials deposited or stored in the flood plain must be protected from erosion by vegetative cover, mulching, riprap or other acceptable method. Permanent sand and gravel operations and similar uses must be covered by a long-term site development plan.

               c.   Temporary placement of fill, other materials, or equipment which would cause an increase to the stage of the 1% chance or regional flood may only be allowed if the City Council has approved a plan that ensures removal of the materials from the floodway based upon the flood warning time available.

            3.   Accessory structures. Accessory structures, as identified in division (C)(3)(a) above, may be permitted, provided that:

               a.   Structures are not intended for human habitation;

               b.   Structures will have a low flood damage potential;

               c.   Structures will be constructed and placed so as to offer a minimal obstruction to the flow of flood waters;

               d.   Service utilities, such as electrical and heating equipment, within these structures must be elevated to or above the regulatory flood protection elevation or properly floodproofed;

               e.   Structures must be elevated on fill or structurally dry floodproofed in accordance with the FP1 or FP2 floodproofing classifications in the State Building Code. All floodproofed structures must be adequately anchored to prevent flotation, collapse or lateral movement and designed to equalize hydrostatic flood forces on exterior walls.

               f.   As an alternative, an accessory structure may be internally wet floodproofed to the FP3 or FP4 floodproofing classifications in the State Building Code, provided the accessory structure constitutes a minimal investment and does not exceed 576 square feet in size. Designs for meeting this requirement must either be certified by a registered professional engineer or meet or exceed the following criteria: to allow for the equalization of hydrostatic pressure, there must be a minimum of two "automatic" openings in the outside walls of the structure, with a total net area of not less than one square inch for every square foot of enclosed area subject to flooding; and there must be openings on at least two sides of the structure and the bottom of all openings must be no higher than one foot above the lowest adjacent grade to the structure. Using human intervention to open a garage door prior to flooding will not satisfy this requirement for automatic openings.

            4.   Accessory structures in the Flood Hazard Area Overlay.

               a.   Accessory structures shall not be designed for human habitation.

               b.   Accessory structures shall be constructed and placed on the building site so as to offer the minimum obstruction to the flow of flood waters:

            5.   Whenever possible, structures shall be constructed with the longitudinal axis parallel to the direction of flood flow: and

            6.   So far as practicable, structures shall be placed approximately on the same flood flow lines as those of adjoining structures.

               a.   Accessory structures shall be elevated on fill or structurally dry floodproofed to the regulatory flood protection elevation in accordance with the State Building Code. As an alternative, an accessory structure may be wet floodproofed to the floodproofing classification in the State Building Code provided the accessory structure constitutes a minimal investment and does not exceed 500 square feet in size. All floodproofed accessory structures must meet the following additional standards:

                  i.   The structure must be adequately anchored to prevent flotation, collapse or lateral movement of the structure and shall be designed to equalize hydrostatic flood forces on exterior walls;

                  ii.   Any mechanical and utility equipment in a structure must be elevated to or above the regulatory flood protection elevation or properly floodproofed; and

                  iii.   To allow for the equalization of hydrostatic pressure, there must be a minimum of two "automatic" openings in the outside walls of the structure having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding. There must be openings on at least two sides of the structure and the bottom of all openings must be no higher than one foot above the lowest adjacent grade to the structure. Using human intervention to open a door prior to flooding will not satisfy this requirement for automatic openings.

            7.   Structural works for flood control that will change the course, current or cross section of protected wetlands or public waters are subject to the provisions of M.S. § 103G.245.

            8.   A levee, dike or floodwall constructed in the floodway must not cause an increase to the 1% chance or regional flood. The technical analysis must assume equal conveyance or storage loss on both sides of a stream.

            9.   Floodway developments must not adversely affect the hydraulic capacity of the channel and adjoining flood plain of any tributary watercourse or drainage system.

      (4)   Flood Fringe District (FF).

         (a)   Permitted uses. Permitted uses are those uses of land or structures allowed in the underlying zoning district(s) that comply with the standards in division (4)(b) below. If no pre-existing, underlying zoning districts exist, then any residential or nonresidential structure or use of a structure or land is a permitted use provided it does not constitute a public nuisance.

         (b)   Standards for Flood Fringe permitted uses.

            1.   Except for the structures mentioned in division (E)(4) only non-habitable accessory structures constructed with less than 120 square feet, fences, or docks for the personal use of the resident(s) of the principal structure that are constructed with flood resistant material to the regulatory flood protection elevation in accordance with the floodproofing classification of the State Building Code may be permitted in the flood fringe, if permitted in the underlying district. No accessory structure may be constructed on the property that will increase flood elevations. All structures, including accessory structures, must be elevated on fill so that the lowest floor, as defined, is at or above the regulatory flood protection elevation. The finished fill elevation for structures must be no lower than one foot below the regulatory flood protection elevation and the fill must extend at the same elevation at least 15 feet beyond the outside limits of the structure.

            2.   Accessory structures. As an alternative to the fill requirements of division (4)(b)(i) above, structures accessory to the uses identified in division (4)(a) above may be permitted to be internally/wet floodproofed to the FP3 or FP4 floodproofing classifications in the State Building Code, provided that:

               a.   The accessory structure constitutes a minimal investment, does not exceed 576 square feet in size, and is only used for parking and storage.

               b.   All portions of floodproofed accessory structures below the regulatory flood protection elevation must be:

                  i.   Adequately anchored to prevent flotation, collapse or lateral movement and designed to equalize hydrostatic flood forces on exterior walls;

                  ii.   Be constructed with materials resistant to flood damage; and

                  iii.   Must have all service utilities be water-tight or elevated to above the regulatory flood protection elevation.

               c.   Designs for meeting this requirement must either be certified by a registered professional engineer or meet or exceed the following criteria: to allow for the equalization of hydrostatic pressure, there must be a minimum of two "automatic" openings in the outside walls of the structure, with a total net area of not less than one square inch for every square foot of enclosed area subject to flooding; and there must be openings on at least two sides of the structure and the bottom of all openings must be no higher than one foot above the lowest adjacent grade to the structure. Using human intervention to open a garage door prior to flooding will not satisfy this requirement for automatic openings.

               d.   The cumulative placement of fill or similar material on a parcel must not exceed 1,000 cubic yards, unless the fill is specifically intended to elevate a structure in accordance with division (D)(2)(a) above, or if allowed as a conditional use under division (D)(3)(c) below.

               e.   The storage of any materials or equipment must be elevated on fill to the regulatory flood protection elevation.

               f.   All service utilities, including ductwork, must be elevated or water-tight to prevent infiltration of floodwaters.

               g.   The storage or processing of materials that are, in time of flooding, flammable, explosive, or potentially injurious to human, animal, or plant life is prohibited.

               h.   All fill must be properly compacted and the slopes must be properly protected by the use of riprap, vegetative cover or other acceptable method.

               i.   All new principal structures must have vehicular access at or above an elevation not more than two feet below the regulatory flood protection elevation, or must have a flood warning or emergency evacuation plan acceptable to the City Council.

               j.   i.   Accessory uses such as yards, railroad tracks, and parking lots may be at an elevation lower than the regulatory flood protection elevation. However, any facilities used by employees or the general public must be designed with a flood warning system that provides adequate time for evacuation if the area is inundated to a depth and velocity such that the depth (in feet) multiplied by the velocity (in feet per second) would exceed a product of four upon occurrence of the regional (1% chance) flood.

                  ii.   Interference with normal manufacturing/industrial plant operations must be minimized, especially along streams having protracted flood durations. In considering permit applications, due consideration must be given to the needs of industries with operations that require a flood plain location.

               k.   Manufactured homes must meet the standards of division (E)(5) and recreational vehicles must meet the standards of divsion (E)(6).

         (c)   Conditional uses. The following uses and activities may be allowed as conditional uses, if allowed in the underlying zoning district(s) or any applicable overlay district, following the procedures in division (K).

            1.   Any structure that is not elevated on fill or floodproofed in accordance with division (D)(2)(a) and (b) above.

            2.   Storage of any material or equipment below the regulatory flood protection elevation.

            3.   The cumulative placement of more than 1,000 cubic yards of fill when the fill is not being used to elevate a structure in accordance with division (D)(2)(a) above.

         (d)   Standards for Flood Fringe conditional uses.

            1.   The standards listed in divisions (D)(2)(c) - (j) apply to all conditional uses.

            2.   Basements, as defined by § 152.105, are subject to the following:

               a.   Residential basement construction is not allowed below the regulatory flood protection elevation.

               b.   Non-residential basements may be allowed below the regulatory flood protection elevation provided the basement is structurally dry floodproofed in accordance with division (D)(4)(c) below.

            3.   All areas of nonresidential structures, including basements, to be placed below the regulatory flood protection elevation must be floodproofed in accordance with the structurally dry floodproofing classifications in the State Building Code. Structurally dry floodproofing must meet the FP1 or FP2 floodproofing classification in the State Building Code, which requires making the structure watertight with the walls substantially impermeable to the passage of water and with structural components capable of resisting hydrostatic and hydrodynamic loads and the effects of buoyancy.

            4.   The placement of more than 1,000 cubic yards of fill or other similar material on a parcel (other than for the purpose of elevating a structure to the regulatory flood protection elevation) must comply with an approved erosion/sedimentation control plan.

               a.   The plan must clearly specify methods to be used to stabilize the fill on site for a flood event at a minimum of the regional (1% chance) flood event.

               b.   The plan must be prepared and certified by a registered professional engineer or other qualified individual acceptable to the City Council.

               c.   The plan may incorporate alternative procedures for removal of the material from the flood plain if adequate flood warning time exists.

            5.   Storage of materials and equipment below the regulatory flood protection elevation must comply with an approved emergency plan providing for removal of such materials within the time available after a flood warning.

      (5)   General Flood Plain District (GF).

         (a)   Permitted uses.

            1.   The uses listed in division (C)(1) above, Floodway District permitted uses, are permitted uses.

            2.   All other uses are subject to the floodway/flood fringe evaluation criteria specified in division (E)(2) below. Division (C) above applies if the proposed use is determined to be in the Floodway District. Division (D) above applies if the proposed use is determined to be in the Flood Fringe District.

         (b)   Procedures for Floodway and Flood Fringe determinations.

            1.   Upon receipt of an application for a permit or other approval within the General Flood Plain District, the Zoning Administrator must obtain, review and reasonably utilize any regional flood elevation and floodway data available from a federal, state, or other source.

            2.   If regional flood elevation and floodway data are not readily available, the applicant must furnish additional information, as needed, to determine the regulatory flood protection elevation and whether the proposed use would fall within the Floodway or Flood Fringe District. Information must be consistent with accepted hydrological and hydraulic engineering standards and the standards in division (E)(2)(c).

            3.   The determination of floodway and flood fringe must include the following components, as applicable:

               a.   Estimate the peak discharge of the regional (1% chance) flood.

               b.   Calculate the water surface profile of the regional flood based upon a hydraulic analysis of the stream channel and overbank areas.

               c.   Compute the floodway necessary to convey or store the regional flood without increasing flood stages more than one-half foot. A lesser stage increase than a half foot is required if, as a result of the stage increase, increased flood damages would result. An equal degree of encroachment on both sides of the stream within the reach must be assumed in computing floodway boundaries.

            4.   The Zoning Administrator will review the submitted information and assess the technical evaluation and the recommended Floodway and/or Flood Fringe District boundary. The assessment must include the cumulative effects of previous floodway encroachments. The Zoning Administrator may seek technical assistance from a designated engineer or other expert person or agency, including the Department of Natural Resources. Based on this assessment, the Zoning Administrator may approve or deny the application.

            5.   After the Floodway and Flood Fringe District boundaries have been determined, the Zoning Administrator must process the permit application consistent with the applicable provisions of divisions (C) and (D) above.

   (E)   Standards for all Flood Plain Districts.

      (1)   Public utilities. All public utilities and facilities such as gas, electrical, sewer, and water supply systems to be located in the flood plain must be floodproofed in accordance with the State Building Code or elevated to the regulatory flood protection elevation.

      (2)   Public transportation facilities. Railroad tracks, roads, and bridges to be located within the flood plain must comply with § 152.801(D). These transportation facilities must be elevated to the regulatory flood protection elevation where failure or interruption of these facilities would result in danger to the public health or safety or where such facilities are essential to the orderly functioning of the area. Minor or auxiliary roads or railroads may be constructed at a lower elevation where failure or interruption of transportation services would not endanger the public health or safety. None of these uses shall increase flood elevations.

      (3)   Non-habitable park shelters and other community assembly structures when accessory to park uses shall be permitted, but shall be constructed using floodproofing measures to the regulatory flood protection elevation, in accordance with the State Building Code, and shall not increase flood elevations. Buildings over 500 square feet must be dry floodproofed to the floodproofing standards in the State Building Code.

      (4)   On-site water supply and sewage treatment systems. Where public utilities are not provided:

         (a)   On-site water supply systems must be designed to minimize or eliminate infiltration of flood waters into the systems and are subject to the provisions in Minn. Rules Chapter 4725.4350, as amended; and

         (b)   New or replacement on-site sewage treatment systems must be designed to minimize or eliminate infiltration of flood waters into the systems and discharges from the systems into flood waters, they must not be subject to impairment or contamination during times of flooding, and are subject to the provisions in Minn. Rules Chapter 7080.2270, as amended.

      (5)   Manufactured homes. New manufactured home parks and expansions to existing manufactured home parks are prohibited in any Flood Plain District. For existing manufactured home parks or lots of record, the following requirements apply:

         (a)   Placement or replacement of manufactured home units is prohibited in the Floodway District.

         (b)   If allowed in the Flood Fringe District, placement or replacement of manufactured home units is subject to the requirements of § 152.801(D) and the following standards:

            1.   New and replacement manufactured homes must be elevated in compliance with § 152.801(D) and must be securely anchored to an adequately anchored foundation system that resists flotation, collapse and lateral movement. Methods of anchoring may include, but are not limited to, use of over-the-top or frame ties to ground anchors. This requirement is in addition to applicable state or local anchoring requirements for resisting wind forces.

            2.   New or replacement manufactured homes in existing manufactured home parks must meet the vehicular access requirements for subdivisions in § 152.801(I).

      (6)   Recreational vehicles. New recreational vehicle parks or campgrounds and expansions to existing recreational vehicle parks or campgrounds are prohibited in any Flood Plain District. Storage of recreational vehicles and equipment shall be in conformance with the regulations of the city, less than 400 square feet in size and equipment may be temporarily stored (for a maximum period of 180 days) if permitted in the underlying district and in compliance with all other sections of the city code. Placement of recreational vehicles in existing recreational vehicle parks or campgrounds or as storage in the flood plain must meet the exemption criteria below or be treated as new structures meeting the requirements of this subchapter.

         (a)   Recreational vehicles are exempt from the provisions of this subchapter if they are placed in any of the following areas and meet the criteria listed in division (F)(2) below:

            1.   Individual lots or parcels of record;

            2.   Existing commercial recreational vehicle parks or campgrounds; or

            3.   Existing condominium-type associations.

         (b)   Criteria for exempt recreational vehicles:

            1.   The vehicle must have a current license required for highway use;

            2.   The vehicle must be highway ready, meaning on wheels or the internal jacking system, attached to the site only by quick disconnect type utilities commonly used in campgrounds and recreational vehicle parks;

            3.   No permanent structural type additions may be attached to the vehicle;

            4.   The vehicle and associated use must be permissible in any pre-existing, underlying zoning district;

            5.   Accessory structures are not permitted within the Floodway District. Any accessory structure in the Flood Fringe District must be constructed of flood-resistant materials and be securely anchored, meeting the requirements applicable to manufactured homes in division (E)(2) above; and

            6.   An accessory structure must constitute only a minimal investment.

         (c)   Recreational vehicles that are exempt in division (F)(2) lose this exemption when development occurs on the site that exceeds a minimal investment for an accessory structure such as a garage or storage building. The recreational vehicle and all accessory structures will then be treated as new structures subject to the elevation and floodproofing requirements of § 152.801(D). No development or improvement on the parcel or attachment to the recreational vehicle is allowed that would hinder the removal of the vehicle should flooding occur.

      (7)   Building sites. If a proposed building site is in a flood prone area, all new construction and substantial improvements (including the placement of manufactured homes) must be:

         (a)   Designed (or modified) and adequately anchored to prevent floatation, collapse, or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy;

         (b)   Constructed with materials and utility equipment resistant to flood damage;

         (c)   Constructed by methods and practices that minimize flood damage; and

         (d)   Constructed with electrical, heating, ventilation, plumbing, and air conditioning equipment and other service facilities that are designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding.

   (F)   Procedures for submission of technical data for boundary.

      (1)   Upon receipt of an application for a development for a use within a Flood Hazard Overlay, the applicant is required to furnish as is applicable to the application as determined by the City Manager for the determination of the regulatory flood protection elevation and whether the proposed use is within the floodway or flood fringe. If the proposed use is located within the floodway, § 152.801(D) of this chapter applies. If the proposed use is located in the flood fringe, § 152.801(E) of this chapter applies.

         (a)   A typical valley cross-section showing the channel of the stream, elevation of land areas adjoining each side of the channel, cross-sectional areas to be occupied by the proposed development, and high water information.

         (b)   Plan (surface view) showing the following:

            1.   Elevations or contours of the ground;

            2.   Pertinent structure, fill, or storage elevations;

            3.   The size, location, and spatial arrangement of all proposed and existing structures on the site;

            4.   Location and spatial arrangement of all proposed and existing structures on the site;

            5.   The location and elevations of streets;

            6.   Photographs showing existing land uses and vegetation upstream and downstream; and

            7.   The soil type(s).

         (c)   Profile showing the slope of the bottom of the channel or flow line of the stream for at least 500 feet in either direction from the proposed development.

      (2)   The applicant must be responsible to submit a copy of the above information to a designated engineer or other expert person or agency for technical assistance in determining whether the proposed use is in the floodway or flood fringe and to determine the regulatory flood protection elevation. Procedures consistent with Minn. Rules parts 6120.5000 - 6120.6200 must be followed in this expert evaluation. The designated engineer or expert is strongly encouraged to discuss the proposed technical evaluation methodology with the respective Department of Natural Resources' Area Hydrologist prior to commencing the analysis. The designated engineer or expert must:

         (a)   Estimate the peak discharge of the regional flood;

         (b)   Calculate the water surface profile of the regional flood based upon a hydraulic analysis of the stream channel and overbank areas; and

         (c)   Compute the floodway necessary to convey or store the regional flood without increasing flood stages and providing compensation storage volumes on a 1:1 basis below the 100-year flood elevation. An equal degree of encroachment on both sides of a stream within the reach must be assumed in computing floodway boundaries.

   (G)   The City Manager must present the technical evaluation and findings of the designated engineer or expert to the Board of Adjustment and Appeals. The Board may formally accept the technical evaluation and the recommended floodway and flood fringe delineations for the Flood Hazard Overlay Area or deny the permit. The Board, prior to official action, must submit the application and all supporting data and analyses to the Federal Emergency Management Agency and Department of Natural Resources for review and comment. Once the flood way and flood fringe boundaries have been determined, the Board will refer the matter back to the City Manager who will process the permit application consistent with the applicable provisions of §§ 152.300 through 152.312 of this chapter.

   (H)   Procedures for submission of technical data for all development within a Flood Hazard Overlay. In addition to the requirements of §§ 152.300 through 152.312, the following additional requirements apply to an application for development within all Flood Hazard Overlays.

      (1)   Upon receipt of an application for a development for a use within a Flood Hazard Overlay, the applicant is required to furnish the following as is applicable to the application as determined by the City Manager for the determination of the flood hazard area boundary and the adequacy of the proposed use for the particular site:

         (a)   Plans drawn to scale showing the following information:

            1.   The nature, location, dimensions, and elevation of the lot;

            2.   The existing or proposed structures, fill, or storage of materials;

            3.   Floodproofing measures, and the relationship of the above to the location of the stream channel; and

            4.   The relationship of the above to the location of the stream channel.

         (b)   Specifications for building construction and materials, floodproofing, filling, dredging, grading, channel improvement, storage of materials, water supply and sanitary facilities.

         (c)   The applicant is required to submit certification by a registered engineer or surveyor licensed by the State of Minnesota that the floodproofing, finished fill and building elevations were accomplished in compliance with the provisions of this section.

      (2)   One copy of the plans and specifications defined above must be given to a designated engineer or other expert person or agency for technical assistance, where necessary, in evaluating the proposed project in relation to flood heights and velocities, the seriousness of flood damage to the use, the adequacy of the plans for protection, and other technical matters. Based upon the technical evaluation of the designated engineer or expert, the City Manager shall determine the specific flood hazard at the site and evaluate the suitability of the proposed use in relation to the flood hazard.

      (3)   Review standards. In addition to the review standards listed in §§ 152.300 through 152.312. The City Council must also consider the following in its review of any application in the Flood Hazard Overlay. These standards include:

         (a)   The danger to life and property due to increased flood heights or velocities caused by encroachment;

         (b)   The danger that materials may be swept onto other lands or downstream to the injury of others or they may block bridges, culverts or other hydraulic structures;

         (c)   The proposed water supply and sanitation systems and the ability of these systems to prevent disease, contamination, and unsanitary conditions;

         (d)   The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner;

         (e)   The importance of the services provided by the proposed facility to the community;

         (f)   The requirements of the facility for a waterfront location;

         (g)   The availability of alternative locations not subject to flooding for the proposed use;

         (h)   The compatibility of the proposed use with existing development and development anticipated in the foreseeable future;

         (i)   The relationship of the proposed use to the Comprehensive Plan and flood plain management programs for the area;

         (j)   The safety of access to the property in times of flood for ordinance and emergency vehicles;

         (k)   The expected heights, velocity, duration rate of rise, and sediment transport of the flood waters expected at the site; and

         (l)   Such other factors which are relevant to the purposes of this chapter.

      (4)   Reasonable conditions. The City Council shall attach any reasonable conditions as it deems necessary to fulfill the purposes of this chapter. Such conditions may include, but are not limited to, the following:

         (a)   Modification of waste treatment and water supply facilities;

         (b)   Limitations on period of use, occupancy or operation;

         (c)   Imposition of operational controls, sureties, and deed restrictions;

         (d)   Requirements for construction of channel modifications, compensatory storage, dikes, levees, and other protective measures; or

         (e)   Floodproofing measures, in accordance with the State Building Code and this chapter. The applicant must submit a plan or documentation certified by a registered professional engineer or architect that the floodproofing measures are consistent with the regulatory flood protection elevation and associated flood factors for the particular area.

      (5)   State and federal permits. Prior to granting approval for any application for development, the City Manager shall determine that the applicant has obtained all necessary state and federal permits.

   (I)   Subdivision review criteria.

      (1)   In general. Recognizing that flood prone areas may exist outside of the designated Flood Plain Districts, the requirements of this section apply to all land within the city.

      (2)   No land shall be subdivided which is unsuitable for the reason of flooding, inadequate drainage, water supply or sewage treatment facilities. Manufactured home parks and recreational vehicle parks or campgrounds are considered subdivisions for purposes of this subchapter. All lots within Flood Plain Districts shall be able to contain a building site outside of the Flood Plain Districts. All subdivisions must have water and sewage treatment facilities that comply with the provisions of this chapter and have road access both to the subdivision and to the individual building sites no lower than two feet below the regulatory flood protection elevation. For all subdivisions in the Flood Plain, the Floodway and Flood Fringe District boundaries, the regulatory flood protection elevation and the required elevation of all access roads must be clearly labeled on all required elevations of all access roads and must be clearly labeled on all required subdivision drawings and platting documents.

      (3)   In the General Flood Plain Overlay, applicants must provide the information required in § 152.801(H) of this chapter to determine the 100-year flood elevation, the Floodway and Flood Fringe District boundaries and the regulatory flood protection elevation for the subdivision site.

      (4)   Removal of special flood hazard area designation. The Federal Emergency Management Agency (FEMA) has established criteria for removing the special flood hazard area designation for certain structures properly elevated on fill above the 100-year flood elevation. FEMA's requirements incorporate specific fill compaction and side slope protection standards for multi-structure or multi-lot developments. These standards should be investigated prior to the initiation of site preparation if a change of special flood hazard area designation will be requested.

      (5)   If a subdivision proposal or other proposed new development is in a flood prone area, any such proposal must be reviewed to assure that:

         (a)   All such proposals are consistent with the need to minimize flood damage within the flood prone area;

         (b)   All public utilities and facilities, such as sewer, gas, electrical, and water systems are located and constructed to minimize or eliminate flood damage; and

         (c)   Adequate drainage is provided to reduce exposure of flood hazard.

   (J)   Conditions for a variance to the Flood Hazard Overlay performance standards.

      (1)   Applications for variance will be reviewed in accordance with the procedures in § 152.302.

      (2)   Any projects granted a variance to high water mark must submit an erosion and sedimentation control plan prepared by a registered engineer licensed by the State of Minnesota in accordance with the guidelines of the West Mississippi Watershed District. This plan must be approved by the city prior to issuance of a permit.

      (3)   Proposals for variance must be the minimum necessary to allow for the reasonable use of the property.

      (4)   Proposals must meet the requirements defined in division (E) for development in the Flood Hazard Overlay.

      (5)   All habitable structures applying for a variance and proposed in the Flood Hazard Overlay must be constructed in accordance with the flood plain management standards for the State of Minnesota as found in Minn. Rules parts 6120.5000 - 6120.6200 and 44 CFR 60.3(a) - (d).

      (6)   No variance shall have the effect of allowing in any district uses prohibited in that district, permit a lower degree of flood protection than the regulatory flood protection elevation for the particular area or permit standards lower than those required by state law.

      (7)   The City Manager must submit hearing notices for proposed variances to the DNR sufficiently in advance to provide at least ten days notice of the hearing. The notice may be sent by electronic mail or U.S. Mail to the respective DNR area hydrologist.

      (8)   Required notification. The City Manager must notify the applicant for a variance of the impacts of the action and must maintain a record of such notification. The city must maintain a record of all variance actions, including justification for their issuance, and report such variances issued in its annual or biennial report submitted to the Administrator of the National Flood Insurance Program. The impacts necessitating notification include:

         (a)   The issuance of a variance to construct a structure below the base flood level will result in increased premium rates for flood insurance.

         (b)   Such construction below the 100-year or regional flood level increases risks to life and property.

      (9)   Submittal of final decisions to the DNR. A copy of all decisions granting variances must be forwarded to the DNR within ten days of such action. The notice may be sent by electronic mail or U.S. Mail to the respective DNR area hydrologist.

      (10)   The following additional variance criteria of the Federal Emergency Management Agency must be satisfied:

         (a)   Variances shall not be issued by a community within any designated regulatory floodway if any increase in flood levels during the base flood discharge would result.

         (b)   Variances shall only be issued by a community upon:

            1.   A showing of good and sufficient cause;

            2.   A determination that failure to grant the variance would result in exceptional hardship to the applicant; and

            3.   A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances.

         (c)   Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.

      (11)   All new principal structures must have vehicular access at or above an elevation not more than two feet below the regulatory flood protection elevation. If a variance to this requirement is granted, the Board of Adjustment must specify limitations on the period of use or occupancy of the structure for times of flooding and only after determining that adequate flood warning time and local flood emergency response procedures exist.

      (12)   Record-keeping. The Zoning Administrator must maintain a record of all variance actions, including justification for their issuance, and must report such variances in an annual or biennial report to the Administrator of the National Flood Insurance Program, when requested by the Federal Emergency Management Agency.

   (K)   Approval of site plan review, conditional use permits, and/or grading permits.

      (1)   The City Council may attach conditions to the approval of site plan review or any permits on flood hazard overlay properties including, but not limited to, the modification of the waste disposal and water supply facilities; limiting the period of use, occupancy, and/or operation; imposing operational controls, sureties, and deed restriction requirements; aesthetic considerations to protect wetlands, open space or those amenities, and requirements for construction of channel modifications, compensatory storage, dikes, levees, and other protective measures; floodproofing measures, in accordance with the State Building Code and this subchapter. The applicant must submit a plan or document certified by a registered professional engineer or architect that the floodproofing measures are consistent with the regulatory flood protection elevation and associated flood factors for the particular area.

      (2)   In passing upon conditional use applications governed by this subchapter, the City Council must consider all relevant factors specified in other sections of this subchapter, and those factors identified in division (E)(3).

      (3)   The Zoning Administrator must submit hearing notices for proposed conditional uses to the DNR sufficiently in advance to provide at least ten days notice of the hearing. The notice may be sent by electronic mail or U.S. Mail to the respective DNR area hydrologist.

      (4)   Submittal of final decisions to the DNR. A copy of all decisions granting conditional uses must be forwarded to the DNR within ten days of such action. The notice may be sent by electronic mail or U.S. Mail to the respective DNR area hydrologist.

   (L)   Non-conformities. A structure or the use of a structure or premises which was lawful before the passage or amendment of this chapter but which is not in conformity with the provisions of this chapter may be continued subject to § 152.204 and the following:

      (1)   A non-conforming use, structure, or occupancy must not be expanded, changed, enlarged, or altered in a way that increases its flood damage potential or degree of obstruction to flood flows except as otherwise provided in division (B). Expansion or enlargement of uses, structures or occupancies within the Floodway District is prohibited.

      (2)   Any structural alteration or addition to a non-conforming structure or non-conforming use which would result in increasing the flood damage potential of that structure or use shall be protected to the regulatory flood protection elevation in accordance with flood plain management standards for the State of Minnesota as found in Minn. Rules parts 6120.5000 - 5120.6200 and 44 CFR 60.3(a) - (d).

      (3)   The cost of any structural alterations or additions to any non-conforming structure over the life of the structure must not exceed 50% of the market value of the structure unless the conditions of this section are satisfied. The cost of all structural alternations and additions constructed since the adoption of the city's initial flood plain controls shall be calculated into today's current cost which will include all costs such as construction material and a reasonable cost placed on all manpower or labor. If the current cost of all previous and proposed alterations and additions exceeds 50% of the current market value of the structure, then the structure must be located outside the floodway and meet the flood plain management standards for the State of Minnesota as found in Minn. Rules parts 6120.5000 - 5120.6200 and 44 CFR 60.3(a) - (d).

      (4)   If any non-conforming use is discontinued for 12 consecutive months, any future use of the building premises shall conform to this subchapter. The Assessor shall notify the Zoning Administrator in writing of instances of non-conforming uses that have been discontinued for a period of 12 months.

      (5)   If any non-conforming use or structure is substantially damaged, as defined in § 152.105, it shall not be reconstructed except in conformity with the flood plain management standards for the State of Minnesota as found in Minn. Rules parts 6120.5000 - 5120.6200 and the 44 CFR 60.3(a) - (d).

      (6)   If a substantial improvement occurs, as defined in § 152.105, from any combination of a building addition to the outside dimensions of the existing building or a rehabilitation, reconstruction, alteration, or other improvement to the inside dimensions of an existing non-conforming building, then the building addition (as required by division (B) above) and the existing non-conforming building must meet the flood plain management standards for the State of Minnesota as found in Minn. Rules parts 6120.5000 - 5120.6200 and 44 CFR 60.3(a) - (d).

      (7)   If any non-conforming use or structure experiences a repetitive loss, it must not be reconstructed except in conformity with the provisions of this subchapter.

   (M)   Record of first floor elevation. The City Manager must maintain a record of the elevation of the lowest floor (including basement) of all new structures and alterations or additions to existing structures in the Flood Hazard Overlay. The City Manager must also maintain a record of the elevation to which structures or alterations and additions to structures are floodproofed.

   (N)   Enforcement of penalties. In addition to the enforcement and penalties defined in §§ 152.200 through 152.202 and § 152.310, other action may be taken by the city to ensure compliance with this section, including a request to the National Flood Insurance Program to deny flood insurance availability to the subject property. If the structure and/or use suspected to be in violation of this section is in the process of construction, the City Manager must immediately order the construction or development halted until the proper permit or approval is granted. The City Manager will also notify the landowner to restore the land to the condition which existed prior to the violation. Each day a violation exists shall be treated as a separate offense.

(Ord. 2024-1304, passed 7-29-24)

   (A)   Authority, intent and purpose.

      (1)   Statutory authorization. This Mississippi River Corridor Critical Area (MRCCA) section is adopted pursuant to the authorization and policies contained in M.S. Chapter 116G, Minn. Rules, Parts 6106.0010 - 6106.0180, and the planning and zoning enabling legislation in M.S. Chapters 462 and 473.

      (2)   Policy. The Legislature of Minnesota has delegated responsibility to local governments of the state to regulate the subdivision, use and development of designated critical areas and thus preserve and enhance the quality of important historic, cultural, aesthetic values, and natural systems and provide for the wise use of these areas.

   (B)   General provisions.

      (1)   Jurisdiction. The provisions of this section apply to land within the river corridor boundary as described in the State Register, volume 43, pages 508 to 519 and shown on the zoning map.

      (2)   Enforcement. The City Manager is responsible for the administration and enforcement of this section. Any violation of its provisions or failure to comply with any of its requirements including violations of conditions and safeguards established in connection with grants of variances or conditional uses constitutes a misdemeanor and is punishable as defined by law. Violations of this section can occur regardless of whether a permit is required for a regulated activity listed in division (C)(2).

      (3)   Severability. If any section, clause, provision, or portion of this section is judged unconstitutional or invalid by a court of competent jurisdiction, the remainder of this section) shall not be affected thereby.

      (4)   Abrogation and greater restrictions. It is not intended by this section to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions. However, where this section imposes greater restrictions, the provisions of this section shall prevail. All other sections inconsistent with this section are hereby repealed to the extent of the inconsistency only.

      (5)   Underlying zoning. Uses and standards of underlying zoning districts apply except where standards of this overlay district are more restrictive.

   (C)   Administration.

      (1)   Purpose. The purpose of this section is to identify administrative provisions to ensure this section is administered consistent with its purpose.

      (2)   Permits. A permit is required for the construction of structures and additions (including construction of decks and signs), the installation and/or alteration of sewage treatment systems, vegetation removal consistent with division (I) and land alterations consistent with division (J).

      (3)   Variances. Variances to the requirements under this section may only be granted in accordance with M.S. § 462.357 and must consider the potential impacts of variances on primary conservation areas, public river corridor views, and other resources identified in the MRCCA plan. In reviewing the variance application, the City Council shall:

         (a)   Evaluate the impacts to these resources. If negative impacts are found, require conditions to mitigate the impacts that are related to and proportional to the impacts, consistent with division (C)(5); and

         (b)   Make written findings that the variance is consistent with the purpose of this section, as follows:

            1.   The extent, location and intensity of the variance will be in substantial compliance with the MRCCA Plan;

            2.   The variance is consistent with the character and management purpose of the MRCCA district in which it is located;

            3.   The variance will not be detrimental to PCAs and PRCVs nor will it contribute to negative incremental impacts to PCAs and PRCVs when considered in the context of past, present and reasonable future actions; and

      (4)   Conditional and interim use permits. All conditional and interim uses, required under this section, must comply with M.S. § 462.3595 and must consider the potential impacts on primary conservation areas, public river corridor views, and other resources identified in the MRCCA plan. In reviewing the application, the City Council shall:

         (a)   Evaluate the impacts to these resources and if negative impacts are found, require conditions to mitigate the impacts that are related to and proportional to the impacts, consistent with Section 3.5; and

         (b)   Make written findings that the conditional use is consistent with the purpose of this section as follows:

            1.   The extent, location and intensity of the conditional use will be in substantial compliance with the MRCCA Plan;

            2.   The conditional use is consistent with the character and management purpose of the MRCCA district in which it is located;

            3.   The conditional use will not be detrimental to PCAs and PRCVs nor will it contribute to negative incremental impacts to PCAs and PRCVs when considered in the context of past, present and reasonable future actions; and

      (5)   Conditions of approval. The City Council shall evaluate the impacts to PCAs, PRCVs, and other resources identified in the MRCCA Plan, and if negative impacts are found, require conditions to mitigate the impacts that are related to and proportional to the impacts. Mitigation may include:

         (a)   Restoration of vegetation identified as "vegetation restoration priorities" identified in the MRCCA plan;

         (b)   Preservation of existing vegetation;

         (c)   Stormwater runoff management;

         (d)   Reducing impervious surface;

         (e)   Increasing structure setbacks;

         (f)   Wetland and drainageway restoration and/or preservation; and

         (g)   Other conservation measures.

      (6)   Application materials. Applications for permits and discretionary actions required under this section must submit the following information unless the City Manager determines that the information is not needed.

         (a)   A detailed project description; and

         (b)   Scaled maps and plans, dimensional renderings, maintenance agreements, and other materials that identify and describe:

            1.   Primary conservation areas;

            2.   Public river corridor views;

            3.   Buildable area;

            4.   Existing and proposed topography and drainage patterns;

            5.   Proposed storm water and erosion and sediment control practices;

            6.   Existing and proposed vegetation to be removed and established;

            7.   Ordinary high water level, blufflines, and all required setbacks;

            8.   Existing and proposed structures;

            9.   Existing and proposed impervious surfaces; and

            10.   Existing and proposed subsurface sewage treatment systems.

      (7)   Non-conformities.

         (a)   All legally established non-conformities as of the date of this chapter may continue consistent with M.S. § 462.357 Subd. 1e.

         (b)   New structures erected in conformance with the setback averaging provisions of division (F)(4) are conforming structures.

         (c)   Site alterations and expansion of site alterations that were legally made prior to the effective date of this chapter are conforming. Site alterations include vegetation, erosion control, storm water control measures, and other nonstructural site improvements.

         (d)   Legally non-conforming principal structures that do not meet the setback requirements of division (F)(3) may be expanded laterally provided that:

            1.   The expansion does not extend into the shore or bluff impact zone or further into the required setback than the building line of the existing principal structure; and

            2.   The expanded structure's scale and bulk is consistent with that of the original structure and existing surrounding development.

   Figure 152.802.1 Expansion of Non-conforming Structure

      (8)   Notifi cations.

         (a)    Amendments to this section and to the MRCCA plan must be submitted to the Commissioner as provided in Minn. Rules, Part 6106.0070, Subp. 3, Items B - I.

         (b)    Notice of public hearings for discretionary actions, including conditional and interim use permits, variances, appeals, rezonings, preliminary plats, final subdivision plats, master plans, and PUDs, must be sent to the following entities at least ten days prior to the hearing:

            1.   The Commissioner in a format prescribed by the DNR;

            2.   National Park Service; and

            3.   Where building heights exceed the height limits specified in division (F)(2) as part of the conditional use or variance process, adjoining local governments within the MRCCA, including those with overlapping jurisdiction and those across the river.

         (c)   Notice of final decisions for actions in division (C)(7)(A), including findings of fact, must be sent to the Commissioner, the National Park Service, and adjoining local governments within the MRCCA within ten days of the final decision.

         (d)   Requests to amend district boundaries must follow the provisions in Minn. Rules, Part 6106.0100, Subp. 9, Item C.

         (e)   The DNR will be notified at time of application submittal of master plans, PUDs, preliminary, and final plats.

      (9)   Accommodating disabilities. Reasonable accommodations for ramps or other facilities to provide persons with disabilities access to the persons' property, as required by the Federal Americans with Disabilities Act and the Federal Fair Housing Act and as provided by Minn. Rules, Chapter 1341, must:

         (a)   Comply with divisions (F) through (L); or

         (b)   If divisions (F) through (L) cannot be complied with, ramps or other facilities are allowed with an administrative permit provided:

            1.   The permit terminates on either a specific date or upon occurrence of a particular event related to the person requiring accommodation; and

            2.   Upon expiration of the permit, the ramp or other facilities must be removed.

   (D)   MRCCA Districts.

      (1)   Purpose. The purpose of this section is to establish districts under which building height and structure placement are regulated to protect and enhance the Mississippi River's resources and features consistent with the natural and built character of each district.

      (2)   District description and management purpose. The MRCCA within the Brooklyn Park is divided into the following MRCCA Districts:

         (a)   Rural and Open Space (ROS).

            1.   Description. The ROS District is characterized by rural and low-density development patterns and land uses, and includes land that is riparian or visible from the river, as well as large, undeveloped tracts of high ecological and scenic value, flood plain, and undeveloped islands. Many primary conservation areas exist in the district.

            2.   Management purpose. The ROS District must be managed to sustain and restore the rural and natural character of the corridor and to protect and enhance habitat, parks and open space, public river corridor views, and scenic, natural, and historic areas.

         (b)   River Neighborhood (RN).

            1.   Description. The RN District is characterized by primarily residential neighborhoods that are riparian or readily visible from the river or that abut riparian parkland. The district includes parks and open space, limited commercial development, marinas, and related land uses.

            2.   Management purpose. The RN District must be managed to maintain the character of the river corridor within the context of existing residential and related neighborhood development, and to protect and enhance habitat, parks and open space, public river corridor views, and scenic, natural, and historic areas. Minimizing erosion and the flow of untreated storm water into the river and enhancing habitat and shoreline vegetation are priorities in the district.

         (c)   Separated from River (SR).

            1.   Description. The SR District is characterized by its physical and visual distance from the Mississippi River. The district includes land separated from the river by distance, topography, development, or a transportation corridor. The land in this district is not readily visible from the Mississippi River.

            2.   Management purpose. The SR District provides flexibility in managing development without negatively affecting the key resources and features of the river corridor. Minimizing negative impacts to primary conservation areas and minimizing erosion and flow of untreated storm water into the Mississippi River are priorities in the district. The RTC District must be managed in a manner that allows continued growth and redevelopment in historic downtowns and more intensive redevelopment in limited areas at river crossings to accommodate compact walkable development patterns and connections to the river. Minimizing erosion and the flow of untreated storm water into the river, providing public access to and public views of the river, and restoring natural vegetation in riparian areas and tree canopy are priorities in the district.

      (3)   MRCCA district map. The locations and boundaries of the MRCCA Districts established by this section are shown on MRCCA Overlay District map which is incorporated herein by reference. The district boundary lines are intended to follow the centerlines of rivers and streams, highways, streets, lot lines, and municipal boundaries, unless a boundary line is otherwise indicated on the map. Where district boundaries cross unsubdivided property, the district boundary line is determined by use of dimensions or the scale appearing on the map.

   (E)   Special land use provisions.

      (1)   Purpose. To identify development standards and considerations for land uses that have potential to negatively impact primary conservation areas and public river corridor views.

      (2)   Underlying zoning. Uses within the MRCCA are determined by underlying zoning, with additional provisions for the following land uses:

         (a)   Agricultural use. Perennial ground cover is required within 50 feet of the ordinary high water level and within the bluff impact zone.

         (b)   Feedlots. New animal feedlots and manure storage areas are prohibited. Existing animal feedlots and manure storage areas must conform with Minn. Rules, Chapter 7020.

         (c)   Forestry. Tree harvesting and biomass harvesting within woodlands, and associated reforestation, must be consistent with recommended practices in Conserving Wooded Areas in Developing Communities: Best Management Practices in Minnesota.

         (d)   Non-metallic mining. Non-metallic mining requires a conditional use permit or interim use permit issued by the local government, subject to the following:

            1.   New non-metallic mining is prohibited within the shore impact zone and bluff impact zone and within the required structure setback from the bluffline and OHWL;

            2.   Processing machinery must be located consistent with setback standards for structures as provided in division (F)(3);

            3.   Only one barge loading area, which must be limited to the minimum size practicable, is permitted for each mining operation;

            4.   New and, where practicable, existing non-metallic mining operations must not be readily visible and must be screened by establishing and maintaining natural vegetation. The unscreened boundaries of non-metallic mining areas are limited to only the barge loading area;

            5.   A site management plan must be developed by the operator and approved by the local government before new non-metallic mining commences. Operations must be consistent with the site plan throughout the duration of operations at the site. The site management plan must:

               a.   Describe how the site will be developed over time with an emphasis on minimizing environmental risk to public waters;

               b.   Explain where staged reclamation may occur at certain points during the life of the site;

               c.   Address dust, noise, storm water management, possible pollutant discharges, days and hours of operation, and duration of operations; and

               d.   Describe any anticipated vegetation and topographic alterations outside the pit, and reclamation plans consistent with the stated end use for the land; and;

            6.   Existing and new non-metallic mining operations must submit land reclamation plans to the local government compatible with the purposes of this section.

         (e)   River-dependent uses. River-dependent uses must comply with the following design standards:

            1.   Structures and parking areas, except shoreline facilities and private roads and conveyances serving river-dependent uses as provided in division (L), must meet the dimensional and performance standards in this section, must be designed so that they are not readily visible, and must be screened by establishing and maintaining natural vegetation;

            2.   Shoreline facilities must comply with Minn. Rules, Chapter 6115 and must:

               a.   Be designed in a compact fashion to minimize the shoreline area affected; and

               b.   Minimize the surface area of land occupied in relation to the number of watercraft or barges to be served.

            3.   Dredging and placement of dredged material are subject to existing federal and state permit requirements and agreements.

         (f)   Wireless communication towers. Wireless communication towers require a conditional or interim use permit and are subject to the following design standards:

            1.   The applicant must demonstrate that functional coverage cannot be provided through co-location, a tower at a lower height, or a tower at a location outside of the MRCCA;

            2.   The tower must not be located in a bluff or shore impact zone;

            3.   Placement of the tower must minimize impacts on public river corridor views; and

            4.   Comply with the general design standards in division (H)(2).

   (F)   Structure height and placement and lot size.

      (1)   Purpose. To establish standards that protect primary conservation areas and public river corridor views from development impacts and ensure that new development is sited consistent with the purpose of the MRCCA.

      (2)   Structure height. Structures and facilities must comply with the following standards unless identified as exempt in division (L).

         (a)   Structures and facilities must comply with the following standards unless identified as exempt in division (L):

            1.   ROS District: 35 feet or lower.

            2.   RN District: 35 feet.

            3.   SR District: Height is determined by underlying zoning, provided the allowed height is consistent with that of the mature treeline, where present, and existing surrounding development, as viewed from the OWHL of the opposite shore.

         (b)   Height is measured on the side of the structure facing the Mississippi River.

         (c)   In addition to the conditional use permit requirements of division (C)(4), criteria for considering whether to grant a conditional use permit for structures exceeding the height limits must include:

            1.   Assessment of the visual impact of the proposed structure on public river corridor views, including views from other communities;

            2.   Determination that the proposed structure meets the required bluff and OHWL setbacks;

            3.   Identification and application of techniques to minimize the perceived bulk of the proposed structure, such as:

               a.   Placing the long axis of the building perpendicular to the river;

               b.   Stepping back of portions of the facade;

               c.   Lowering the roof pitch or use of a flat roof;

               d.   Using building materials or mitigation techniques that will blend in with the natural surroundings such as green roofs, green walls, or other green and brown building materials;

               e.   Narrowing the profile of upper floors of the building; or

               f.   Increasing the setbacks of the building from the Mississippi River or blufflines.

            4.   Identification of techniques for preservation of those view corridors identified in the MRCCA Plan; and

            5.   Opportunities for creation or enhancement of public river corridor views.

      (3)   Structure and impervious surface placement.

         (a)   Structures and impervious surface must not be placed in the shore or bluff impact zones unless identified as an exemption in division (L).

         (b)   Structures and facilities must comply with the following OHWL setback provisions unless identified as exempt in division (L).

            1.   ROS District: 200 feet from the Mississippi River and 150 feet from the Minnesota and Vermillion Rivers.

            2.   RN District: 100 feet from the Mississippi River and 75 feet from the Rum and Vermillion Rivers.

            3.   SR District: 75 feet from the Vermillion River.

         (c)   Structures and facilities must comply with the following bluffline setback provisions unless identified as exempt in division(L):

            1.   ROS District: 100 feet.

            2.   RN District: 40 feet.

            3.   SR District: 40 feet.

         (d)   Where principal structures exist on the adjoining lots on both sides of a proposed building site, the minimum setback may be altered to conform to the average of the adjoining setbacks, if the new structure's scale and bulk riverward or bluffward of the setbacks required under divisions (F)(3)(B) and(F)(3)(C) are consistent with adjoining development. See Figure 152.802.2.

         (e)    Subsurface sewage treatment systems, including the septic tank and absorption area, must be located at least 75 feet from the ordinary high water level of the Mississippi River and all other public waters.

      (4)    Lot size and buildable area.

         (a)   The width of lots abutting the Mississippi River in the ROS District must be at least 200 feet, unless alternative design methods are used that provide greater protection of the riparian area.

         (b)   All new lots must have adequate buildable area to comply with the setback requirements of divisions (F)(3)(B) and(F)(3)(C)c so as to not require variances to use the lots for their intended purpose.

   (G)   Performance standards for private facilities.

      (1)   Purpose. To establish design standards for private facilities that are consistent with best management practices and that minimize impacts to primary conservation areas, public river corridor views and other resources identified in the MRCCA plan.

      (2)   General design standards. All private facilities must be developed in accordance with the vegetation management and land alteration requirements in divisions (I) and (J).

      (3)   Private roads, driveways, and parking areas. Except as provided in division (L), private roads, driveways and parking areas must:

         (a)   Be designed to take advantage of natural vegetation and topography so that they are not readily visible;

         (b)   Comply with structure setback requirements according to division (F)(3); and

         (c)   Not be placed within the bluff impact zone or shore impact zone, unless exempt under division (L) and designed consistent with division (H)(2).

      (4)   Private water access and viewing facilities.

         (a)   Private access paths must be no more than:

            1.   Eight feet wide, if placed within the shore impact zone; or

            2.   Four feet wide, if placed within the bluff impact zone.

         (b)   Private water access ramps must:

            1.   Comply with Minn. Rules, Chapters 6115.0210 and 6280.0250; and

            2.   Be designed and constructed consistent with the applicable standards in Design Handbook for Recreational Boating and Fishing Facilities.

         (c)   Design and construction of private stairways, lifts, and landings are subject to the following standards:

            1.   Stairways and lifts must not exceed four feet in width on residential lots. Wider stairways may be used for commercial properties and residential facilities held in common, if approved by the City Manager;

            2.   Landings for stairways and lifts on residential lots must not exceed 32 square feet in area. Landings larger than 32 square feet area allowed for commercial properties and residential facilities held in common, if approved by the City Manager;

            3.   Canopies or roofs are prohibited on stairways, lifts, or landings;

            4.   Stairways, lifts, and landings must be located in the least visible portion of the lot whenever practical; and

            5.   Ramps, lifts, mobility paths, or other facilities for persons with physical disabilities are allowed for achieving access to shore areas according to divisions (G)(4)(C)i. - iv., and as provided under division (C)(9).

         (d)    One water-oriented accessory structure is allowed for each riparian lot or parcel less than 300 feet in width at the ordinary high water level, with one additional water-oriented accessory structure allowed for each additional 300 feet of shoreline on the same lot or parcel. Water-oriented accessory structures are prohibited in the bluff impact zone and must:

            1.   Not exceed 12 feet in height;

            2.   Not exceed 120 square feet in area; and

            3.   Be placed a minimum of ten feet from the ordinary high water level.

      (5)   Decks and patios in setback areas. Decks and at-grade patios may encroach into the required setbacks from the ordinary high water level and blufflines without a variance, when consistent with divisions (I) and (J), provided that:

         (a)   The encroachment of the deck or patio into the required setback area does not exceed 15% of the required structure setback; and

         (b)   The area of the deck or patio that extends into the required setback area occupies no more than 25% of the total area between the required setback and the 15% using the formula:

         (c)   The deck or patio does not extend into the bluff impact zone. See Figure 152.802.3 below.

      (6)    Directional signs.

         (a)    Directional signs for patrons arriving at a business by watercraft must comply with the following standards:

            1.   They must be consistent with M.S. § 86B.115;

            2.   Only convey the location and name of the establishment and the general types of goods and services available, if located in a shore impact zone;

            3.   Be no greater than ten feet in height and 32 square feet in surface area; and

            4.   If illuminated, the lighting must be shielded to prevent illumination out across the river or to the sky.

      (7)   Fences. Fences between principal structures and the river are allowed if fences are:

         (a)   Not higher than six feet;

         (b)   Not located within 40 feet of slopes greater than 12%; and

         (c)   Not located in the regulatory flood plain.

   (H)   Performance standards for public facilities.

      (1)   Purpose. To establish design standards for public facilities that are consistent with best management practices and that minimize impacts to primary conservation areas, public river corridor views and other resources identified in the MRCCA plan. Public facilities serve the public interest by providing public access to the Mississippi River corridor or require locations in or adjacent to the river corridor and therefore require some degree of flexibility.

      (2)   General design standards. All public facilities must be designed and constructed to:

         (a)   Minimize visibility of the facility from the river to the extent consistent with the purpose of the facility;

         (b)   Comply with the structure placement and height standards in division (F), except as provided in division (L);

         (c)   Be consistent with the vegetation management standards in division (I) and the land alteration and storm water management standards in division (J), including use of practices identified in Best Practices for Meeting DNR General Public Waters Work Permit GP 2004-0001, where applicable;

         (d)   Avoid primary conservation areas, unless no alternative exists. If no alternative exists, then disturbance to primary conservation areas must be avoided to the greatest extent practicable, and design and construction must minimize impacts; and

         (e)   Minimize disturbance of spawning and nesting times by scheduling construction at times when local fish and wildlife are not spawning or nesting.

      (3)   Right-of-way maintenance standards. Right-of-way maintenance must comply with the following standards:

         (a)   Vegetation currently in a natural state must be maintained to the extent feasible;

         (b)   Where vegetation in a natural state has been removed, native plants must be planted and maintained on the right-of-way; and

         (c)   Chemical control of vegetation must be avoided when practicable, but when chemical control is necessary, chemicals used must be in accordance with the regulations and other requirements of all state and federal agencies with authority over the chemical's use.

      (4)   Crossings of public water or public land. Crossings of public waters or land controlled by the commissioner are subject to approval by the Commissioner according to M.S. §§ 84.415 and 103G.245.

      (5)   Public utilities. Public utilities must comply with the following standards:

         (a)   High-voltage transmission lines, wind energy conversion systems greater than five megawatts, and pipelines are regulated according to M.S. Chapters 216E, 216F, and 216G respectively;

         (b)   If overhead placement is necessary, utility facility crossings must minimize visibility of the facility from the river and follow other existing right of ways as much as practicable;

         (c)   The appearance of structures must be as compatible as practicable with the surrounding area in a natural state with regard to height and width, materials used, and color; and

         (d)   Wireless communication facilities, according to division (E)(2)(f).

      (6)   Public transportation facilities. Public transportation facilities shall comply with structure placement and height standards in division (F). Where such facilities intersect or about two or more MRCCA districts, the least restrictive standards apply. Public transportation facilities must be designed and constructed to give priority to:

         (a)   Providing scenic overlooks for motorists, bicyclists, and pedestrians;

         (b)   Providing safe pedestrian crossings and facilities along the river corridor;

         (c)   Providing access to the riverfront in public ownership; and

         (d)   Allowing for use of the land between the river and the transportation facility.

      (7)   Public recreational facilities. Where such facilities intersect or abut two or more MRCCA districts, the least restrictive dimensional standards apply. Public transportation facilities must be designed and constructed to give priority to:

         (a)   Buildings and parking associated with pubic recreational facilities must comply with the structure placement and height standards in division (F), except as provided in division (L).

         (b)   Roads and driveways associated with public recreational facilities must not be placed in the bluff or shore impact zones unless no other placement alternative exists. If no alternative exists, then design and construction must minimize impacts to shoreline vegetation, erodible soils and slopes, and other sensitive resources.

         (c)   Trails, access paths, and viewing areas associated with public recreational facilities and providing access to or views of the Mississippi River are allowed within the bluff and shore impact zones if design, construction, and maintenance methods are consistent with the best management practice guidelines in Trail Planning, Design, and Development Guidelines.

            1.   Hard-surface trails are not allowed on the face of bluffs with a slope exceeding 30%. Natural surface trails are allowed, provided they do not exceed eight feet in width.

            2.   Trails, paths, and viewing areas must be designed and constructed to minimize:

               a.   Visibility from the river;

               b.   Visual impacts on public river corridor views; and

               c.   Disturbance to and fragmentation of primary conservation areas.

         (d)   Public water access facilities must comply with the following requirements:

            1.   Watercraft access ramps must comply with Minn. Rules Chapters 6115.0210 and 6280.0250; and

            2.   Facilities must be designed and constructed consistent with the standards in Design Handbook for Recreational Boating and Fishing Facilities.

         (e)   Public signs and kiosks for interpretive or directional purposes are allowed in the bluff or shore impact zones, provided they are placed and constructed to minimize disturbance to these areas and avoid visual impacts on public river corridor views.

         (f)   Public stairways, lifts, and landings must be designed as provided in division (G)(4)(c).

   (I)   Vegetation management.

      (1)   Purpose. To establish standards that sustain and enhance the biological and ecological functions of vegetation; preserve the natural character and topography of the MRCCA; and maintain stability of bluffs and steep slopes and ensure stability of other erosion-prone areas.

      (2)   Applicability. This section applies to:

         (a)   Shore impact zones;

         (b)   Areas within 50 feet of a wetland or natural drainage way;

         (c)   Bluff impact zones;

         (d)   Areas of native plant communities; and

         (e)   Significant existing vegetative stands identified in the MRCCA plan.

      (3)   Activities allowed without a vegetation permit.

         (a)   Maintenance of existing lawns, landscaping and gardens;

         (b)   Removal of vegetation in emergency situations as determined by the City Manager;

         (c)   Right-of-way maintenance for public facilities meeting the standards division (H)(3);

         (d)   Agricultural and forestry activities meeting the standards of divisions (E)(2)(A) and(E)(2)(C); and

         (e)   Selective vegetation removal, provided that vegetative cover remains consistent with the management purpose of the MRCCA District, including:

            1.   Vegetation that is dead, diseased, dying, or hazardous;

            2.   To prevent the spread of diseases or insect pests;

            3.   Individual trees and shrubs; and

            4.   Removal of invasive non-native species.

      (4)   Activities allowed with a vegetation permit.

         (a)   The following intensive vegetation clearing activities are allowed with a vegetation permit:

            1.   Clearing of vegetation that is dead, diseased, dying, or hazardous;

            2.   Clearing to prevent the spread of diseases or insect pests;

            3.   Clearing to remove invasive non-native species;

            4.   Clearing to prepare for restoration and erosion control management activities consistent with a plan approved by the City Manager; and

            5.   The minimum necessary for development that is allowed with a building permit or as an exemption under division (L).

         (b)   Conditions of vegetation permit approval.

            1.   Development is sited to minimize removal of or disturbance to natural vegetation;

            2.   Soil, slope stability, and hydrologic conditions are suitable for the proposed work as determined by a professional engineer or (insert name of resource agency, if someone other than professional engineer is desired);

            3.   Clearing is the minimum necessary and designed to blend with the natural terrain and minimize visual impacts to public river corridor views;

            4.   Any native plant communities removed are replaced with vegetation that provides equivalent biological and ecological functions consistent with an approved vegetation restoration plan as provided in division (I)(6)(b). If replaced, priorities for restoration are stabilization of erodible soils, restoration or enhancement of shoreline vegetation, and revegetation of bluffs or steep slopes visible from the river;

            5.   All other vegetation removed is restored with natural vegetation to the greatest extent practicable consistent with an approved vegetation restoration plan as provided in division (I)(6)(b). Priorities for replacement are the same as under division(I)(4)(b)iv.;

            6.   Any disturbance of highly erodible soils is replanted with deep-rooted vegetation with a high stem density;

            7.   Vegetation removal activities are conducted so as to expose the smallest practical area of soil to erosion for the least possible time;

            8.   Areas of vegetation restoration priorities identified in the MRCCA plan are restored, if applicable; and

            9.   Any other condition determined necessary to achieve the purpose of this section.

      (5)   Prohibited activities. All other intensive vegetation clearing is prohibited.

      (6)   Vegetation restoration plan.

         (a)   Development of a vegetation restoration plan and reestablishment of natural vegetation is required:

            1.   As a condition of a vegetation permit issued under divisions (I)(4)(b)iv and(I)(4)(b)v;

            2.   Upon failure to comply with any provisions in this section; or

            3.   As part of the planning process for subdivisions as provided in division (K).

         (b)   The vegetation restoration plan must satisfy the application submittal requirements in divisions (C)(6), and:

            1.   Include vegetation that provides suitable habitat and effective soil stability, runoff retention, and infiltration capability. Vegetation species, composition, density, and diversity must be guided by nearby patches of native plant communities and by Native Vegetation Establishment and Enhancement Guidelines;

            2.   Be prepared by a qualified individual; and

            3.   Include a maintenance plan that includes management provisions for controlling invasive species and replacement of plant loss for three years.

         (c)   A certificate of compliance will be issued after the vegetation restoration plan requirements have been satisfied.

   (J)   Land alteration standards and stormwater management.

      (1)   Purpose. To establish standards that protect water quality from pollutant loadings of sediment, nutrients, bacteria, and other contaminants; and maintain stability of bluffs, shorelines, and other areas prone to erosion.

      (2)   Land alteration permit.

         (a)   Within the bluff impact zone, land alteration is prohibited, except for the following, which are allowed by permit.

            1.   Erosion control consistent with division (J)(6);

            2.   The minimum necessary for development that is allowed as an exception under division (L); and

            3.   Repair and maintenance of existing buildings and facilities.

         (b)   Within the water quality impact zone, land alteration that involves more than ten cubic yards of material or affects an area greater than 1,000 square feet requires a permit.

      (3)   Rock riprap, retaining walls, and other erosion control structures.

         (a)   Construction, repair, or replacement of rock riprap, retaining walls, and other erosion control structures located at or below the OHWL must comply with Minn. Rules, Chapters 6115.0215, Subp. 4, Item E, and 6115.0216, Subp. 2. Work must not proceed until approved by the Commissioner. See Figure 152.802.4.

         (b)    Construction or replacement of rock riprap, retaining walls, and other erosion control structures within the bluff impact zone and the water quality impact zone are allowed with a permit consistent with provisions of division (K)(6) provided that:

            1.    If the project includes work at or below the OHWL, the Commissioner has already approved or permitted the project.

            2.   The structures are used only to correct an established erosion problem as determined by the City Manager.

            3.   The size and extent of the structures are the minimum necessary to correct the erosion problem and are not larger than the following, unless a professional engineer determines that a larger structure is needed to correct the erosion problem:

               a.   Retaining walls must not exceed five feet in height and must be placed a minimum horizontal distance of ten feet apart; and

               b.   Riprap must not exceed the height of the regulatory flood protection elevation.

         (c)   Repair of existing rock riprap, retaining walls, and other erosion control structures above the OHWL does not require a permit provided it does not involve any land alteration under division (J)(2).

      (4)   Stormwater management.

         (a)   In the bluff impact zone, storm water management facilities are prohibited, except by permit if:

            1.   There are no alternatives for storm water treatment outside the bluff impact zone on the subject site;

            2.   The site generating runoff is designed so that the amount of runoff reaching the bluff impact zone is reduced to the greatest extent practicable;

            3.   The construction and operation of the facility does not affect slope stability on the subject property or adjacent properties; and

            4.   Mitigation based on the best available engineering and geological practices is required and applied to eliminate or minimize the risk of slope failure.

         (b)   In the water quality impact zone, development that creates new impervious surface, as allowed by exemption in division (L), or fully reconstructs existing impervious surface of more than one acre requires a storm water permit or approved storm water plan. Multipurpose trails and sidewalks are exempt if there is down gradient vegetation or a filter strip that is at least five feet wide.

         (c)   In all other areas, storm water runoff must be directed away from the bluff impact zones or unstable areas.

      (5)   Development on steep slopes. Construction of structures, impervious surfaces, land alteration, vegetation removal, or other construction activities are allowed on steep slopes if:

         (a)   The development can be accomplished without increasing erosion or storm water runoff;

         (b)   The soil types and geology are suitable for the proposed development; and

         (c)   Vegetation is managed according to the requirements of division (I).

      (6)   Conditions of land alteration permit approval.

         (a)   Temporary and permanent erosion and sediment control measures retain sediment onsite consistent with best management practices in the Minnesota Stormwater Manual;

         (b)   Natural site topography, soil, and vegetation conditions are used to control runoff and reduce erosion and sedimentation;

         (c)   Construction activity is phased when possible;

         (d)   All erosion and sediment controls are installed before starting any land disturbance activity;

         (e)   Erosion and sediment controls are maintained to ensure effective operation;

         (f)   The proposed work is consistent with the vegetation standards in division (I); and

         (g)   Best management practices for protecting and enhancing ecological and water resources identified in Best Practices for Meeting DNR General Public Waters Work Permit GP 2004-0001.

      (7)   Compliance with other plans and programs. All development must:

         (a)   Be consistent with M.S. Chapter 103B, and local water management plans completed under Minn. Rules Chapter 8410;

         (b)   Meet or exceed the wetland protection standards under Minn. Rules, Chapter 8420; and

         (c)   Meet or exceed the flood plain management standards under Minn. Rules, Chapter 6120.5000 - 6120.6200

   (K)   Subdivision and land development standards.

      (1)   Purpose.

         (a)   To protect and enhance the natural and scenic values of the MRCCA during development or redevelopment of the remaining large sites;

         (b)   To establish standards for protecting and restoring biological and ecological functions of primary conservation areas on large sites; and

         (c)   To encourage restoration of natural vegetation during development or redevelopment of large sites where restoration opportunities have been identified in MRCCA Plans.

      (2)   Applicability.

         (a)   The design standards in this section apply to subdivisions, planned unit developments and master-planned development and redevelopment of land involving ten or more acres for contiguous parcels that abut the Mississippi River and 20 or more acres for all other parcels, including smaller individual sites within the following developments that are part of a common plan of development that may be constructed at different times:

            1.   Subdivisions;

            2.   Planned unit developments; and

            3.   Master-planned development and redevelopment of land.

         (b)   The following activities are exempt from the requirements of this section:

            1.   Minor subdivisions consisting of three or fewer lots;

            2.   Minor boundary line corrections;

            3.   Resolutions of encroachments;

            4.   Additions to existing lots of record;

            5.   Placement of essential services; and

            6.   Activities involving river-dependent commercial and industrial uses.

      (3)   Application materials. Project information listed in Section 3.6 must be submitted for all proposed developments.

      (4)   Design standards.

         (a)   Primary conservation areas, where they exist, must be set aside and designated as protected open space in quantities meeting the following as a percentage of total parcel area:

            1.   CA-ROS District: 50%;

            2.   CA-RN District: 20%;

            3.   CA-RTC, CA-UM, and CA-UC Districts: 10%; and

            4.   CA-SR District: 10% if the parcel includes native plant communities or provides feasible connections to a regional park or trail system, otherwise no requirement.

         (b)   If the primary conservation areas exceed the amounts specified in division (K)(4)(a), then protection of native plant communities and natural vegetation in riparian areas shall be prioritized.

         (c)   If primary conservation areas exist but do not have natural vegetation (identified as restoration priorities in the MRCCA Plan), then a vegetation assessment must be completed to evaluate the unvegetated primary conservation areas and determine whether vegetation restoration is needed. If restoration is needed, vegetation must be restored according to division (I)(6)(b).

         (d)   If primary conservation areas do not exist on the parcel and portions of the parcel have been identified in the MRCCA plan as a restoration area, vegetation must be restored in the identified areas according to division (I)(6)(b) and the area must be set aside and designated as protected open space.

         (e)   Storm water treatment areas or other green infrastructure may be used to meet the protected open space requirements if the vegetation provides biological and ecological functions.

         (f)   Land dedicated under § 151.061 for public river access, parks, or other open space or public facilities may be counted toward the protected open space requirement.

         (g)   Protected open space areas must connect open space, natural areas, and recreational areas, where present on adjacent parcels, as much as possible to form an interconnected network.

      (5)   Permanent protection of designated open space.

         (a)   Designated open space areas must be protected through one or more of the following methods:

            1.   Public acquisition by a government entity for conservation purposes;

            2.   A permanent conservation easement, as provided in M.S. Chapter 84C;

            3.   A deed restriction; or

            4.   Other arrangements that achieve an equivalent degree of protection.

         (b)   Permanent protection methods must ensure the long-term management of vegetation to meet its biological and ecological functions, prohibit structures, and prohibit land alteration, except as needed to provide public recreational facilities and access to the river.

   (L)   Exemptions.

      (1)   Purpose. To provide exemptions to structure placement, height and other standards for specific river or water access dependent facilities as provided in M.S. § 116G.15 Subd. 4.

      (2)   Applicability.

         (a)   Uses and activities not specifically exempted must comply with this section. Uses and activities exempted under shore impact zone and bluff impact zone must comply with the vegetation management and land alteration standards in Sections 9 and 10.

         (b)   Uses and activities in division (L)(3) are categorized as:

            1.   Permitted-P. This means that the use or activity is allowed;

            2.   Conditional-C. This means that the use or activity is allowed only if no alternatives exist, as a conditional use;

            3.   Permitted with additional standards-S. This means that a use or activity is not exempt and must meet the standards of this chapter; or

            4.   Not permitted-NP. The use is prohibited.

      (3)   Use and activity exemptions classification.

         (a)   General uses and activities.

 

         (b)   Public utilities.

 

 

         (c)   Public recreational facilities.

 

         (d)   River-dependent uses.

 

 

         (e)   Private residential and commercial water access and use facilities.

 

   (A)   Purpose. The purpose of the Planned Development Overlay is to promote creative and efficient use of land by providing design flexibility in the application of the provisions of a primary zoning district by providing an overlay district on top of any of the primary zoning districts. It is the applicant's responsibility to demonstrate that the proposed planned development is not simply for enhanced gain and accomplishes one or more of the following:

      (1)   Introduce flexibility of site design and architecture for the conservation of land, natural features and open space through clustering of structures, facilities, amenities and activities for public benefit.

      (2)   Improve the efficiency of public streets and utilities through a more efficient and effective use of land, open space and public facilities through assembly and development of land in larger parcels.

      (3)   Internal organization and adequacy of various uses or densities, circulation and parking facilities, urban services, recreation areas, open spaces, screening and landscaping, and the ability to demonstrate that a viable development will be created.

      (4)   Provide mixed land use and land use transitions in keeping with the character of adjacent land uses and the underlying zoning districts; and,

      (5)   Provide for the clustering of land parcels for development as an integrated, coordinated unit as opposed to a parcel by parcel, piecemeal approach and to maintain these parcels by central management including integrated and joint use of parking, maintenance of open space and similar features, and harmonious selection and efficient distribution of uses.

   (B)   Intent. The intent of this designation is to encourage development that is superior in quality and design than could be achieved through traditional zoning. The boundaries of this overlay are amended for each application as approved through on the development plan through the rezoning process outlined elsewhere in this chapter.

   (C)   Flexibilities. The City Council may grant certain flexibility to zoning requirements if the applicant demonstrates to the Council's satisfaction that the purpose and intent have been satisfied. Such flexibilities may include:

      (1)   Land use. Flexibility in land use may be provided by a PDO, however, the uses in the underlying zoning district may be further restricted.

      (2)   Density. Flexibility in density may be granted if consistent with the land use designation in the comprehensive plan.

      (3)   Site design. Specific lot area, lot width, setbacks, height, yard, floor area ratio, landscaping, and open space requirements may be established for the PDO.

      (4)   Parking and loading. Flexibility in the design and location of off-street parking facilities and loading areas is permitted with the approval of such facilities by the city engineer; however, in no case shall gravel parking areas be permitted.

      (5)   Signage. Flexibility in the design and location of signage is permitted; however, in no case shall pylon signs be permitted.

      (6)   Stormwater. Stormwater facilities may be shared between parcels if part of an approved PDO.

   (D)   Procedures. Planned development projects shall adhere to the rezoning procedure listed in § 152.309 and site plan review listed in § 152.303.

   (E)   Maintenance requirements. If common open space or service facilities are provided within the PDO, the PDO shall contain provisions to assure the continued operation and maintenance of such open space and service facilities to a predetermined reasonable standard. Open space and facilities may be placed under the ownership of one of the following, as approved by the City Council:

      (1)   Dedicated to the public, where a community-wide use is anticipated, and the City Council agrees to accept the dedication;

      (2)   Landlord control, where only use by tenants is anticipated; or

      (3)   Property owners' association, provided all the following conditions are met:

         (a)   Prior to the use, occupancy, sale, or the execution of contract for sale of individual buildings, units, lots, parcels, tracts or common areas, a recorded declaration of covenants, conditions and restrictions, or an equivalent document as specified by state statute, must be filed with the city.

         (b)   Such document shall be filed with and reviewed and approved by the City Attorney prior to recordation with the county.

   (F)   Phasing of public and common open space. When a PDO provides for common private or public open space, and is planned for a phased development over a period of time, the total area of common or public open space or land escrow security in any phase of development may, at a minimum, bear the same relationship to the total open space to be provided in the entire PDO as the phases or units completed or under development bear to the entire PDO.

   (G)   Modifications or amendments. Minor modifications, as determined by the City Manager, are subject to the site plan review process established in § 152.303. Major modifications or amendments, including changes in land use, density, maintenance of open space or common areas, or extensive changes to road, utility, or open space must follow the same procedures for submittal, notification, and public hearing as the original PDO.

   (H)   List of approved active Planned Development Overlays and ordinance numbers.

 

   (A)   Purpose. The Pedestrian Priority Overlay District (PPOD) is established to provide pedestrian-oriented development on streets designated as pedestrian priority streets in the Comprehensive Plan. This district is applied at a 150-foot depth from the front lot line of parcels fronting a pedestrian priority street.

   (B)   District standards.

      (1)   Minimum floor area ratio. Notwithstanding the regulations of the underlying zoning district, the minimum floor area ration for new development in the PPOD is one-half.

      (2)   Required commercial uses. The first floor of all new developments in the PPOD shall provide commercial uses, subject to the requirements of this section.

      (3)   Size of required commercial use space. In a multi-story building the commercial use or uses shall occupy at least 60% of the building's ground-floor street frontage and a minimum depth of 20 feet. In a single-story building the commercial use or uses shall occupy 100% of the building's street frontage and a minimum interior depth of 20 feet.

      (4)   Use of required commercial space. Required commercial use areas shall be occupied by one or more of the following uses. Building amenities intended for use solely by building occupants and not open to the general public shall not qualify as a required commercial use.

         (a)   Retail and service.

         (b)   Restaurant and brewpubs.

         (c)   Medical clinics.

         (d)   Child care.

         (e)   Adult day care.

         (f)   Breweries and micro-distilleries.

         (g)   Taprooms and cocktail rooms.

(Ord. 2024-1304, passed 7-29-24)