Folwell neighbors see zoning change reversed after lawsuit

Jun. 27—ROCHESTER — A Faribault County judge says a zone change to make way for proposed rowhomes in the Folwell neighborhood was flawed.

"Proceeding with the public hearing prior to receiving the report from the (Rochester Planning and Zoning) Commission violates the city's own procedural requirements," Fifth Judicial District Court Judge Troy Timmerman wrote in regard to

a lawsuit filed by a group of Folwell neighbors

. "This in turn has due process implications for the property owners who sought to oppose the zoning change."

Timmerman, who reviewed the case since one of the neighbors involved is married to an Olmsted County judge, voided the zoning change.

The neighbors — Susan Wescott, Diane Lund, Rick Ties, John Cassady, Kai Miller and Mary Richter — sued the city after the

Rochester City Council voted 4-3

on May 17, 2021, to allow two lots near Saint Marys Hospital to be rezoned for development of 12 proposed rowhomes.

"We had been feeling that our voices hadn't been heard," Wescott said Monday. "This changes that."

The proposed development would extend new housing options on 14th Avenue Southwest, which includes the Berkman Apartments, the John E. Herman Home and Treatment Facility and 15-unit Cottage Grove rental complex, west of the hospital.

While Timmerman ruled earlier this month that some of the neighbors' complaints about the overall process for approving zone change and potential development lacked merit, he said the failure to produce a report following an April 28, 2021,

Planning and Zoning Commission vote

to recommend denial of the zoning change was contrary to state and city requirements.

He said the lack of a report from the commission meant the neighbors had limited options for presenting arguments against the zoning change to the City Council, since city staff were able to point to their report supporting the change.

"Additionally, other members of the community were denied the opportunity to review that (commission) report prior to the comment period of the public meeting," Timmerman wrote.

Rochester City Attorney Michael Spindler-Krage said the city did provide minutes of the hearing outlining the commission's decision, along with public access to a video of the meeting. He said creating an expanded report regarding commission decisions would be burdensome.

"A requirement that an official report would be created and formally approved by the (Planning and Zoning Commission), within 10 days of the public hearing, is neither feasible nor serves a meaningful purpose," he said.

Wescott said past actions shouldn't be considered a defense for failing to meet the requirements of state statute and city ordinance.

She said the ruling helps address some of the neighbors' concerns about the process used to approve the zoning change, but concerns remain, since the city is in the process of creating a new Unified Development Code that could change zoning in some residential areas dominated by single-family homes.

She said she hopes the ruling raises awareness of the process and spurs the City Council to address concerns.

Timmerman's ruling doesn't necessarily mean the proposed rowhome project won't be built.

The house that sat on the site has been cleared, and developer Ben Kall said initial construction permits are in hand.

Kall said he's waiting to see how the city responds to the ruling, but Spindler-Krage said the developer could restart the rezoning process to move forward.

The city attorney said the city is evaluating options, which could include an appeal of the decision by mid-August.

While Timmerman's ruling could require Kall to restart the zoning process, Spindler-Krage said the ruling "found the city's rezoning approval decision was substantially sound," aside from lacking a larger report.

Spindler-Krage said the option for restarting the process could also hinge on the Unified Development Code, which is expected to be adopted later this year. The proposal would likely change approval procedures.

Wescott said her fellow neighbors remain ready to respond to any additional action that would move forward with the proposed development, which they consider to be too big for the neighborhood..

"We are doing what we can to seek justice and see our community developed in a way that we can walk our children to Folwell (Elementary) School without getting concerns about traffic," she said.

March 25, 2021 — Developer Ben Kall holds an online community meeting to present the rowhome project proposed for the intersection of 14th Avenue and Sixth Street Southwest.

April 1, 2021 — A request to rezone the two parcels for the development is received by Rochester's Community Development Department, which later recommends approval of the change.

April 28, 2021 — Rochester Planning and Zoning Commission votes 4-2 to recommend denial of the requested zoning change.

May 17, 2021 — Rochester City Council votes 4-3 to approve the zoning change.

June 24, 2021 — A site development plan for the project is logged as received by the Community Development staff.

July 8, 2021 — A request to combine the two properties into a single parcel is filed with the city.

July 23, 2021 — A demolition permit for the existing home of the property is approved, giving the developer until Jan. 19 to remove the building

Aug. 2, 2021 — The Rochester City Council votes 6-1 to approve creating a single parcel from the two lots.

Aug. 13, 2021 — Six neighbors file a complaint in Olmsted County District Court to seek reversal of the council's zoning decision.

Sept. 3, 2021 — Attorneys for the city file a response to the complaint.

April 12, 2022 — Judge Troy Timmerman hears arguments from attorneys representing both sides of the issue.

June 15, 2022 — Timmerman files his judgment, which voids the zone change but upholds other aspects of the original complaint.