A proposal to construct a 98-unit $27 million apartment building typically would be greeted as positive news for a city struggling with an acknowledged housing shortage, such as Duluth. But plans to put up a six-story structure at 2215 South Street are at odds with city height guidelines for the site, and efforts to flex those rules have roiled concern.

At a Thursday night agenda session meeting, Duluth Councilor Joel Sipress, who represents the city's 2nd District where the building is proposed, warned that the city's eagerness to accommodate the project regardless of established zoning restrictions could cause people to question the integrity of the system.

He suggested skeptics could take the view that: "It looks a lot like we decide the result we want, and then we figure out how to massage the UDC (Unified Development Chapter), perhaps beyond the point of breaking, to get the desired result."

Sipress then asked Adam Fulton, Duluth's deputy director of planning and development: "If someone looked at it that way, how would you respond to them and convince them that they're wrong and that in fact that's not what we're doing?"

Fulton replied: "We get requests of all sorts and shapes and sizes on a regular basis. Some of those require variances. Others of those we would simply say, 'That does not fit, because it's too far removed from what might make sense.' In this case, what was driving staff to evaluate this was related to many of the housing goals in the comprehensive plan and the specific parameters that we review for guidance related to that density."

Fulton went on to say: "The zoning code is something that changes on a regular basis. The planning commission takes up zoning code amendments multiple times per year. In this case, that amendment was proposed by staff and supported by the planning commission simply associated with this single project."

The Duluth Planning Commission voted 6-0 on Oct. 8 to recommend the City Council rezone the project site to mixed use-planned to accommodate a taller building than would be allowed under the property's current mixed use-commercial zoning.

But even with the proposed rezoning, the project would require two additional waivers:

  • The city sets the minimum size for a mixed use-planning district at 2 acres, versus the 1.04-acre site available for the development in question.
  • The maximum structure height allowed on the rezoned property would 54 feet, versus the 57.5-foot building height proposed.

The decision as to whether the project should be allowed to move forward will go to the Duluth City Council Monday night, and 1st District Councilor Gary Anderson said Friday he still hasn't made up his mind.

"I have wrestled with this, and on Monday night I will most likely have to vote yes or no," he said.

At Large Councilor Arik Forsman said: "Sometimes the code isn't super easy to decipher, and so that's where we rely on staff and the planning commission to be experts on those issues and to make those recommendations to Council. But ultimately that authority does lie with us, so it's important that any time we have a decision to make we have to do our homework and make the best decision possible."

Dr. Robert La Cosse co-owns a dental clinic just uphill from the proposed development and has called on the city to abide by the 45-foot height restriction already in place for the property, noting that the proposed structure would obstruct valuable views of the lake from his building.

As for his clinic, La Cosse said: "It was bought and paid for legally with the reasonable expectation that any development that would go up around us would also be built to that standard. But this really isn't about our view anymore. It really has become more about how we view our law."

"It's hard for me to believe that an objective, informed person could possibly come to the conclusion that this project fits that law," La Cosse said.

But Scott Moe, senior vice president of Launch Properties, the would-be developer, suggested city councilors should question La Cosse's motives.

"Ask yourself this: Have you ever gone to a dentist because they have a good view?" he asked.

Moe noted that the side of the proposed building that would face the clinic actually is under the 45-foot height limit as currently designed. But the site is sloped, and the height of the building for the city's purposes is determined by measuring from the midpoint of the side facing 22nd Avenue East.

At a previous meeting, Moe told the City Council that, as proposed, the development would be built entirely with private funds, but he warned that a downsized project likely would require public subsidies. Moe spoke in favor of the project design, as is, "so we can stay out of the government's pocket."

Sipress questioned Fulton whether he truly believed the project was an appropriate candidate for the creation of a mixed use-planning district, after reading him the following description: "The MU-P district is established to provide a flexible development option for mixed use projects that integrate creative site design, provide a variety of building types, provide unique on-site amenities, conserve natural features, increase pedestrian connectivity or otherwise result in a final product that provides a greater level of public benefit than would be required with the existing zone district."

Fulton acknowledged that the term "mixed use" is ill-defined as a zoning term.

But he observed: "This project is mixed use in the context of its surroundings and the surrounding neighborhood. When we look at an MU-P district, it's very important that we are thinking broadly about the context in which any given project sits. So, this was evaluated related to some of the broad benefits of this project in the context of the Imagine Duluth 2035 Comprehensive Plan. It was evaluated in the context of creating new housing units in close proximity to the Lakewalk with good pedestrian connections to that area amenity. So, on the broad basis of how this project is being proposed, it was the determination of staff that it met those provisions."

Following on, Sipress asked: "So it's your position that a single building that is purely residential fits the description of a mixed use project that has innovative site design and a variety of building types?"

Fulton said that was correct.

As much as he may like many aspects of the proposed housing development, Sipress said: "This is much much bigger than this particular project, and regardless of how people feel about this specific project, maintaining the integrity of our zoning code is far more important."

"If we start ignoring the plain language of the law for a desired result, then we might as well not have a zoning code at all," he said.