WORTHINGTON — Following their July 8 denial of a conditional use permit for the Golden Horizons assisted living facility, Worthington City Council members revisited the permit at Monday's council meeting in light of a lawsuit threatened against the city.
The potential suit was raised on the grounds that the Worthington Planning Commission decisions to grant a variance for a smaller setback than legally required, and to reduce the number of required parking spaces per resident to 0.5, meant that owner KC Properties did in fact meet the conditions for the permit.
State law requires that when a city council vote fails, it can only be revisited by one of the council members who voted against it — in this case, council member Alan Oberloh or council member Larry Janssen.
Oberloh explained that in speaking with the city attorney and representatives from the League of Minnesota Cities, staff learned that the city would likely lose a lawsuit and be liable for $100,000. Oberloh said for that reason, he was bringing the issue back to the council for consideration.
"I stand by my convictions," Oberloh said. He maintained that KC Properties did not merit the approval of a permit, but added that he was willing to revisit the permit to protect the city's financial interests.
Janssen added that his negative vote on July 8 had stemmed from "lack of due diligence" on the part of the property owners. Both Oberloh and Janssen had encouraged KC Properties to purchase additional land to the east before attempting their project.
Council member Chad Cummings disagreed with this assessment.
"The only due diligence that is needed is filing for the variance," he countered.
He added that purchasing more land is a personal preference, not one imposed by city code.
"That is what you wanted them to do," Cummings said. "There is no legal requirement for them to do that."
Janssen argued that his vote was on behalf of his constituents, to whom he is accountable.
Oberloh expressed frustration that he felt pressured to go against his personal conviction because the planning commission's decisions, which happened prior to July 8, superseded the city council vote. He believes the planning commission acted in error in allowing smaller setbacks and fewer parking spaces, but — as City Administrator Steve Robinson pointed out — variances by the planning commission are not subject to council review.
Council member Amy Ernst, who sits on the planning commission, interjected to Oberloh that it wasn't fair to put down the planning commission because it made a decision that Oberloh opposed. She said that the commission does consider all information presented.
"It seems to me that lately, the planning commission has been lenient and gone against staff recommendation," Oberloh countered. He said that the planning commission should have considered the city council vote that would occur as a result of its decisions.
"We cannot predict from the planning commission what the council is going to do," Ernst argued.
Ernst offered that if the planning commission never granted variances, it would have no purpose. The commission exists because there are circumstances under which a property owner is deserving of an exception to city code.
Assistant City Administrator Jason Brisson clarified that a variance should be given in the case of a natural phenomenon that significantly alters the property owner's ability to follow code, such as a drop-off or a 100-year-old tree. However, he noted, the planning commission does feel pressure to keep development going, which is an incentive to grant variances.
Following the heated debate, council took another vote on the conditional use permit. This time, it passed 4-1, with Janssen opposed.
Other city council business included:
- Adoption of a Capital Improvement Plan to issue bonds for financing a public works facility.
- Approval of three Nobles Home Initiative applications: Adam Johnson, 1298 North Crailsheim Drive.; Dan Krueger, 1867 and 1871 First Ave. SW; Todd Schwebach, 2490 Dayton Drive.
- A favorable first reading of an ordinance to enact Worthington's local option sales tax.
- Approval of a resolution to accept the local option sales tax.
- Moving the completion date of the Beach Nook project to Nov. 1.
- Approval of a preliminary and a final plat of the "Wagner Addition," eight residential lots immediately to the south of the Glenwood Heights neighborhood.