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Why Beacon Point Matters
The Story Behind the Headlines on the Beacon Point Condo Development
No matter where you live, you probably concur it’s important that a city enforce its own building codes—and enforce them fairly, regardless of who’s doing the development.
The handling of the Beacon Point Condominium project, at the edge of Lake Superior near 21st Avenue East in Duluth, has prompted questions over whether city code is indeed being followed. The local volunteer group Responsible Development in Duluth (RDD) last spring sought legal assistance, at significant financial cost, to attempt to compel city officials to enforce city codes in the Beacon Point project. Now that Phase I of Beacon Point is complete and the excavation for Phase II is nearly done, RDD has filed an appeal with the Board of Zoning Appeals, and other city agencies, over Building Inspector decisions that have allowed Beacon Point to proceed.
Here’s a look at the main issues underlying this controversy.
Is the Setback from Lake Superior Sufficient?
The condos are being built close to Lake Superior and might be out of compliance with ordinances that are designed to protect the lakeshore.
- The Ordinary High Water Mark (OHWM) is used to determine how far buildings and other impervious surfaces must be set back from the lakeshore. The City determination of the OHWM was poorly documented and poorly marked, so it is no longer possible to determine with any confidence whether construction complies with setback requirements.
- The proposed site plan shows the OHWM. It shows the 50-foot setback from the OHWM. The structures, themselves, generally abut the setback line. This means that any future construction of the Lakewalk between the buildings and the lakeshore must be within the 50-foot setback. However, the 50-foot setback is intended to be a zone protected from construction and impervious surfaces.
- The proposed site plan acknowledges an impervious surface of 4712 sq. ft. within the 50-foot setback. The site plan shows patios and walks within the 50-foot setback. The site plan shows an attached gazebo within the 50-foot setback at the northeast end of Phase II, the “Lighthouse.”
Is the Extension of the Lakewalk Compromised?
In exchange for some concessions, the developer agreed to provide an “appropriate” easement for the future construction of the Lakewalk between the condos and the lakeshore but then built so close to the lakeshore that this easement is compromised.
- Any future development of the Lakewalk will require a variance from the prohibition against construction within the 50-foot setback from the OHWM of the lake.
- The cost of any future development of the Lakewalk will be increased due to the need for extensive engineering and landscaping in the narrow strip of rough land between the buildings and the lakeshore.
- The cost of maintaining the Lakewalk will be increased due to the proximity of the Lakewalk to the shoreline and the resultant periodic storm damage.
RDD’s Attempts to Find Out More About the Excavation and Blasting, Done Without Permits
The developer made extensive, permanent changes to the site, including blasting bedrock and deep excavation, without a building permit. These excavations began in June 2006, yet a Foundation Permit was not issued by the city until August 7, 2006.
- By mid-June some major excavating had been done. By June 23rd there was evidence of blasting of bedrock close to or encroaching upon the required setback from the shore of Lake Superior.
- During the week of June 26th Alison Clarke of RDD asked a staff member in the Permit Office, “How can there be such extensive excavation at Beacon Point prior to the issuance of a building permit?” Alison was told the question would have to be directed to the Permit Officer, Duane Lasley.
- On July 9th Alison Clarke wrote a letter to Mr. Lasley on behalf of Neighborhood District Seven and RDD stating her observations and concerns and questions. Lasley did not reply. Ms. Clarke then asked 2nd District City Councilor Greg Gilbert to try to obtain a response from Mr. Lasley; still no response was provided. On July 21st Ms. Clarke asked Mayor Bergson to direct Mr. Lasley to respond. Later on the same day she received an explanation by Duane Lasley through K. Skye Seleznikar in the Permitting Office.
- RDD representatives took turns calling or going to the Permit office in person. As of August 7, 2006, they were was told that no permit had been issued. On August 9, 2006, they were informed that a “Foundation Permit” had been issued August 7, 2006 but that the “Superstructure Permit” was still under review.
Why Impervious Surface Restrictions Matter to the Future of the Lake
To limit water runoff and contamination of Lake Superior, the state imposes maximums on the amount of imperious surface that is allowable along the lakeshore. The maximum allowable impervious surface on the Beacon Point site would ordinarily be 30%.
But the developer obtained a variance allowing them a maximum of 62% impervious surface. This variance was tied to two conditions: the developer would use mitigating rain gardens and also provide “an appropriate easement” for the future construction of the Lakewalk between the buildings and the lakeshore.
Since that time, the developer has drafted, and the City Planning Department has approved, a site plan that includes almost 62% impervious surface but does not include the Lakewalk in the calculation. Any future construction of the Lakewalk extension will increase the amount of impervious surface on the site to above the 62% that was agreed upon for the project.
In addition, the developer redesigned some aspects of the project, placing the water gardens for ameliorating rainwater runoff from impervious surfaces uphill from the buildings. This decision—and its approval by the City Planning Department—defies common sense.
Why So Tall? Beacon Point’s Astonishing Height
The buildings are taller than many people expected, including some City Councilors as well as the residents in Neighborhood District Seven who reviewed the initial plans.
- In 1995, the City failed to include any maximum for the height of buildings in areas zoned R-3 (which includes Phase I of the Beacon Point development). This was clearly an error, as City Planning staff had recommended a maximum height of 30 feet. In the 11 years since this omission occurred, the maximum height has been left blank,despite the brief entry (in 2003) of the correct figure (30 feet) in the Codes.
- The maximum allowable height for buildings within 1000 feet of the lakeshore is 35 feet. However, several rules used in calculating the height of buildings have the effect of allowing the developer to build much larger structures.
- The “top” of the building is the midpoint between the eaves and the top of the roof. This effectively adds 10-15 feet of “permissible” height above the 35 foot maximum.
- The “bottom” of the building is measured from street level (on Water Street) rather than from the base of the constructed building. This effectively adds an entire story to the Beacon Point buildings, since on the lake side of the buildings they a full story below their entrances on Water Street.
- “Partial” top stories are not included in the calculation of the height of the buildings. This has the effect of allowing the developer to add entire rooms that are exempt from the “maximum height” requirements.
- The Beacon Point building design emphasizes peaked roofs facing Water Street and a straight roofline for the length of the building on the side facing the lake. Many observers feel this design is unsightly. In any event, it effectively blocks the view of the lake across the full length of the structures.
Is Beacon Point out of Compliance? Has the City Been Negligent?
Several citizen groups, including Responsible Development in Duluth and Neighborhood District Seven, have solid reason to believe that some aspects of the Beacon Point development are out of compliance with applicable codes and ordinances and that the City of Duluth has been negligent in its enforcement of those codes and ordinances. These citizen groups are seeking support for several objectives:
- That the Beacon Point development will comply with the Codes of the City of Duluth and any Variances granted from those by the Planning Commission and City Council.
- That citizen groups such as Responsible Development in Duluth and Neighborhood District Seven, and any other interested citizens, will have timely opportunities to review the final site plan, the final building permit(s), and other public documents to satisfy concerns about compliance with applicable codes, ordinances, and variances.
- That citizen groups such as Responsible Development in Duluth and Neighborhood District Seven, and any other interested citizens, will have the opportunity to appeal decisions and permits if the grounds upon which to appeal can be established by such citizens and if such appeal is legally permissible.
Was the Public Shut Out of Access to Public Documents on Beacon Point?
In May, 2006, representatives of Responsible Development in Duluth (RDD) began to inquire in Duluth’s City Planning office about the availability of site plans for Phases II and III for review (both buildings are now included in Phase II). They asked two to three times per week if the building permit application had been received.
- In late May, a representative of RDD was informed by City Planning Director Bob Bruce that a site plan application had been received, and a copy of the proposed site plan was provided to RDD. The site plan was dated May 26, 2006 and was not yet approved by the Planning Department.
- The proposed site plan raised several important questions. The proposed site plan included a calculation of impervious surfaces that approached 62% without inclusion of the Lakewalk. The Lakewalk easement appeared to be largely under water. Portions of the proposed Phase II building appeared to be within the 50-foot setback from Lake Superior.
- In early June 2006, the Duluth News Tribune reported that the Planning Department had approved a site plan. However, the final (approved) site plan has not been made available to RDD despite numerous requests to see it.
- Also in early June, RDD representatives were told the City had received the application for the building permit for Phase II of Beacon Point.
- RDD was informed that the final site plan would be submitted with the building permit.
- The Planning Department informed RDD on approximately June 26 that the site plan and all Beacon Point materials had been delivered to the Building Safety/Permit office.
- At the Permit office, RDD asked if the Building Permit application had been submitted. It had, dated June 7th, and the RDD representative was able to review it. At that time RDD asked to see the final site plan that would have been submitted with the application. RDD was informed by Permit Office staff that the site plan and any documents other than those already viewed with the Permit Application were in “design review,” were not available for public viewing, and would not be available until the building permit was granted. On one other occasion, two members of RDD asked, “Is the final site plan available for us to see?” RDD was told it was not, as it was in design review in the (Permit office/Planning office).
What’ s the Upshot?
RDD and other citizen groups have sought and continue to seek assurance that the Beacon Point development does and will comply with the requirements of the City Code. They have sought that assurance throughout the development process, prior to, and during construction. RDD believes the City has denied RDD timely access to documents and timely answer to questions about the development in general and the recent excavation in particular. Furthermore, the City has allowed extensive excavation to occur on the Beacon Point site and has allowed the site to be irreparably changed, without an appropriate building permit. The failure of the City to provide adequate oversight of the Beacon Point development has had the effect of denying the citizens of Duluth reasonable assurance that the development complies with applicable codes and ordinances.
RDD believes the citizens of Duluth have been denied timely access to documents and information. That the development has been allowed to proceed to the extent it has is a serious infringement of citizen rights by the city administration and developer. RDD could retain legal counsel and challenge the developer and the city; RDD has been assured that the grounds for such a challenge can readily be established. However, RDD believes that it should not have to do so. RDD expects the City to act in the interests of its citizens by enforcing the Codes that have been established for that purpose.
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