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At the Duluth city council meeting of February 8, 2016, councilors considered Resolution 16-0096, which would reverse a previous decision made by the Planning Commission. The Planning Commission had denied a variance request from homeowners on Park Point who wanted to expand their kitchen. City code stipulates that structures must be set back six feet from side-yard property lines. The homeowners had requested a variance to expand to within two feet of the property line.
It is not uncommon for people to appeal decisions of the Planning Commission to the city council. Where the Planning Commission is required to follow city code and zoning regulations when making their decisions, the city council is free to base their own decisions based on any criteria whatsoever. For instance, the city council recently reversed the Planning Commission’s ruling in the case of the proposed Lyons Townhomes. The Planning Commission initially approved the townhomes based on their reading of the zoning code; the city council later denied the request based on a roomful of irate neighbors.
Tonight, one member of the public was signed up to speak on the kitchen variance: Robert Lent.
“I’m speaking in favor of granting the variance,” Mr. Lent told councilors. “As a recent remodeler and variance requester, I have a few observations that I hope you will listen to.”
Lent: My original variance request was to build an addition that used the concept of universal design [ for handicapped people] and that was the only reason for the requested variance, as it takes a little bit more space to allow for wheelchairs to move around, and walkers, and that kind of stuff. Many hours were spent with the neighbors explaining our request. No neighbors were against the request, and some even wrote letters in support….
I spoke at my hearing for the allotted time, and then the Planning Commission started in on their comments, which proved to me that they did not fully understand what I was trying to build. When I attempted to clarify it, I was told it was no longer my turn to speak, and I could only respond to questions….The request was then tabled. The project was delayed another couple of months. The reason for the tabling was to get legal advice regarding whether or not there was precedence for being sued for denying a request to make a home handicapped accessible, which I was doing. At the next commission meeting, a judgment call was made by looking at my wife and myself, and it was decided that we were not handicapped. As no precedents could be found by the city attorney, our request to use six feet of my own property was denied.
Lent’s comments certainly painted a picture of a heartless, out-of-touch Planning Commission. City councilor Em Westerlund grabbed the ball and ran with it.
Em Westerlund: You know, all of us will live and die, and some of us will die quickly, and some of us will be blessed enough to live into old age and may have different mobility issues that come up. Looking at this particular house built in 1908, it is nearly impassable with just a walker, let alone if a person were to progress to a state where they might need a wheelchair….I really think it’s important that when we take a look at these things, we take into consideration concepts like universal design, which are great not only for people who are aging, but also people who have varying disabilities or ability levels.…I think that it is time for us to have a conversation about how to make sure that this process is not unnecessarily discriminatory against people who are planning for their future and planning for retirement and end of life.
Councilor Barb Russ added, “I know we’ve had some turnover in the members of the commission…in recent months, and I think at a minimum, maybe, what we need to do is either look at maybe some additional training that would be helpful for new planning commissioners. Certainly we could do that.”
In the end, unsurprisingly, councilors voted to overturn the Planning Commission’s decision and grant the kitchen variance to the homeowners. But throughout the entire discussion, I was baffled, because I attend Planning Commission meetings, and I simply could not recall commissioners turning down a request to make a house wheelchair-accessible. Nor could I remember Mr. Lent speaking before the Planning Commission about universal design, and I certainly couldn’t recall a scene where commissioners so coldly appraised the handicappedness of Mr. Lent and his wife. So I started investigating staff reports, commission resolutions, and my own audio recordings.
I learned that the house in question, at 3427 South Lake Avenue, had been occupied for more than 40 years by a woman living alone. Upon her death, she bequeathed the house to Bill Brownell and Pat Brownell Sterner, her nephew and niece. In 2011, Bill and Pat applied for a variance to expand the size of the house. The Planning Commission approved that variance. Bill and Pat expanded the house significantly, doubling its size.
Second, I discovered that Mr. Lent, who spoke so eloquently to the council on the kitchen variance, was not associated with the project in any way. The project that Lent talked about, where everyone stared at him heartlessly, was one for which he had requested a variance in May of 2014—a year and a half earlier. That explained why I didn’t remember it—I was not covering Planning Commission meetings at that point.
Third, I found out that the Brownells’ variance application for the kitchen did not mention universal design or wheelchair accessibility. In their request, Bill Brownell and Pat Brownell Stearns wrote this: “This 1908 house needs to be upgraded in order to properly enjoy the use of its kitchen. The relief request for said variance is needed because when this house was built by the previous owners, all plumbing, sewer, and water was brought into the house in this area.”
Fourth, when planning commissioners considered the variance request on January 12, 2016, they heard from Mike Medlin, the contractor who had expanded the Brownell house in 2011 and who would expand the kitchen if the variance was approved. In his comments, Medlin explained, “After living in the house for a while, they came to the conclusion that the present galley kitchen is not adequate for the enjoyment of their property. When [their aunt] was living there by herself, the kitchen was sufficient for her needs, but with the extended family of almost 20 people at times, it [is too small]. The Fifties look and appliances need to be upgraded and the flow of traffic needs to be addressed….I think that if you ask any woman who has to prepare food for a lot of people, a functional kitchen is very important.” Again, no one mentioned the need or desire for universal design and wheelchair accessibility.
That was four weeks prior to the city council meeting. In those four weeks, the issue magically transformed from one where somebody wanted to expand their kitchen to accommodate a crowd of relatives into an issue where the kitchen needed to be expanded to accommodate wheelchairs. In other words, the city council was being asked to overturn the Planning Commission’s decision based on completely different facts. And so they did.
The next day, February 9, the Planning Commission held their monthly meeting. Keith Hamre, the city’s director of planning, seemed a little stunned by the events of the previous night. He told commissioners that Bill Brownell and Pat Brownell Sterner had met with city councilors prior to the council meeting and told them that they intended to move into the house at some point within the next year, and that they intended to bring their disabled brother with them. That was why they needed the kitchen variance.
Hamre struggled for words. “Getting hit at the eleventh hour with something that’s brand-new, out of left field…I mean, you guys didn’t get…the Planning Commission didn’t even get a chance to see that, or hear that. So, I mean, that was just…” He trailed off, at a loss.
I was surprised to learn that the homeowners did not currently live in Duluth. I was also intrigued by the sudden appearance of the disabled brother, just in time to secure a kitchen variance. A large brand-new kitchen in a house on Park Point would certainly increase its value, if they decided to sell. But that point was moot; they said they were going to move here within a year. Why should anyone doubt that?
In any case, the city council’s decision has now established a precedent: Anyone in Duluth may expand their home without regard for zoning codes, as long as they claim to be planning for a future in which they might need a wheelchair. Thus, if you want to expand your rec room to within one inch of your neighbor’s property line to accommodate a second pool table, but the Planning Commission turns you down, don’t worry. Just appeal it to the city council. Say you’re trying to achieve “universal design” and “wheelchair accessibility.” Voila! Your variance will be granted.
And planning commissioners, at long last, might get the vital education that Councilor Russ recommended.