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Cytec appeal denied (07/09/2014)
By Chris Rogers
In a 5-2 vote the Winona City Council affirmed a variance for Cytec Engineered Materials' new flammable storage room. Adjacent home owners had appealed the variance to the council, and, at the Monday night public hearing, unsuccessfully asked the company to purchase their homes.

In May, the Board of Adjustment (BOA) voted 4-2 to grant Cytec a variance to build a flammable liquid storage facility above ground and within 150 feet of a residential district; city code normally requires a 200-foot setback and allows below ground storage only. The flammable liquids Cytec plans to store include a variety of specialty resins stored in 50-gallon drums that will be used to make a new product line of aircraft interiors. With that new product line, the company is adding other small buildings, undergoing major renovations, and creating 60 to 70 new jobs. A $500,000 state loan and a $75,000 city loan are helping fund the $12.4 million expansion. A portion of the state loan will be added to the city's business loan fund after the project is completed.

Twelve homeowners share the block with Cytec. The nearest homes abut the parking lot where Cytec plans to build the flammable liquid storage room. The twelve homes are not technically protected by the 200-foot rule because they are zoned for manufacturing. Only the existence of another residentially-zoned house within the 200-foot setback made the variance necessary.

Nine of the 12 property owners or residents signed a letter of appeal stating that their property values will decline as a result of the variance and asking the council to revoke it or for Cytec to purchase their homes. The total assessed value of all 12 homes is $793,100.

Jobs, safety, and home values

"If [the Cytec plant] is built bigger and those flammable liquids are there, what's to stop that from getting to my house and to my children? That's my biggest concern," said Patrick Bork, who told the council that his garage is one foot and three inches away from an existing Cytec building. "If this does go through, I would hope that Cytec would do the right thing and at least acquire some of the properties that are that close to make my situation a little bit better for my children."

Throughout the variance process, there has not been any explanation of "what happens when there's a worst-case scenario," said East End resident and Heritage Preservation Commission member Kendal Larson. "I think you should slow down and take a look at the details and protect these people with safety in mind," she told the council. She continued, "Please try to protect Winona from a decline of their property values due to economic expansion. We support the economic expansion part, but we know we need to protect people and their property values."

The Winona Cytec plant has been handling flammable liquids for years, said Plant Manager Jim Wright. "It's something we do everyday and we're pretty good at it." Cytec Engineer Steve Flo explained that the facility would include sprinklers, a secondary containment system for any leaks, and two-hour fire walls. The building would have to be reviewed by the city fire marshall and meet federal fire code. Wright informed the council that Cytec has a clean safety record and recently won a governor's award for occupational safety.

Flo noted that some parts of the city zoning ordinance have not been updated since the code was enacted in 1960, while fire codes are extensive and modern.

Wright added, "As far as some of the human element of the situation, it should be pointed out that we have had people working at that site for 35 years or more." Now, second-generation workers are joining Cytec's staff. These employees "have made their livelihoods and provided for their families for all those years. We feel responsible for them, and we make every effort to take care of them as well as our neighbors and our community," he said.

In response to calls for Cytec to purchase the adjoining homes, Wright said, "For the existing project, we weren't looking at the need for that.

I can't say what the future will hold. If the business does well and we need to expand further, we might take a look at that, but the current project is what we can do within the existing property lines for the short term: five to 10 years."

Chamber of Commerce President Della Schmidt spoke on behalf of the chamber, supporting the variance. "These are good paying jobs; if we're going to consider the human element we might want to consider that as well," she said, reminding the council of the resin storage room's connect to the larger expansion project.

The city of Winona Port Authority President Mike Cichanowski, who owns We-no-nah Canoe, wrote a letter to the council. "Please support this variance which would allow the expansion to move forward as planned," he wrote. Appointed by the council, the Port Authority is charged with promoting business growth in the city. The port is the city body that supplied the $75,000 loan to Cytec and that would benefit from state funds added to its loan fund after the project.

Industrial property owner Rich Mikrut spoke during the public hearing, telling the council, "We have to remember that manufacturing has been, is, and will continue to be the lifeblood of our community. Without the expansion of manufacturing and the continuation of manufacturing, this community would not exist."

Staff bolster legal arguments

When reviewing a variance request or when considering a variance appeal the BOA and the council are guided by state law to not simply do what they think is right, but to make their decision based on whether the variance is in line with the zoning ordinance and comprehensive plan, whether the proposed use is reasonable, whether it would alter the neighborhood's character, whether the property has unique challenges not caused by its owner, and whether economics is the only reason for the variance.

"By my count none of [those criteria] would be adequately met," said Attorney Greg Schieber, who spoke on behalf of the appellants. The comprehensive plan calls for the adjacent homes to be a "traditional neighborhood" and for Cytec's industrial land to be buffered from other land uses. This proposal does not match up with that plan, Schieber said. "Putting that large of a volume of flammable materials above ground… that close to houses is inherently unreasonable," he continued. "The general purpose of these setback rules are to keep people and property safe," so by eliminating that "reasonable buffer" the variance "runs directly contrary" to the intent of the ordinance, he argued. BOA's justifications "have a lot of holes in them" and the city staff's proposed amendments are still "wholly inadequate," he argued.

In its findings, the BOA ruled that the existence of homes in a manufacturing zone consisted a unique circumstance not caused by Cytec and justified the variance, and that the variance would not alter the character of the neighborhood. Asked to rule whether economics were the only reason for the variance, the BOA's findings state: "Yes, economics are a consideration." Typically, a "no" finding would justify granting a variance.

City staff recommended that the City Council affirm the variance, but specifically advised that the council adopt more substantial findings than those reached by the BOA. In the findings proposed, staff stressed the fact that the industrial use of the property, formerly Fiberite, pre-dated both the zoning ordinance and adjacent residences. The need for the variance is not solely driven by economics, staff wrote, but by practical difficulties such as the fact that there is not anywhere else on the property to expand.

Council member Michelle Alexander moved to affirm the variance with the BOA justifications, but City Attorney Chris Hood cautioned against keeping the BOA's justifications and urged the council to adopt the more detailed, amended findings.

Eyden, Alexander debate; Krage questions

"I just disagree with several points, including whether it's consistent with the general purposes and intent of the zoning ordinance," council member Pam Eyden said of justifications for the variance. "I think the purposes and intent of a setback is to keep people safe. In this congested situations where we have a lot of people… maintaining those setbacks is very important. That's what's going to help Winona thrive as a mixed use town."

Eyden said she was also concerned about whether the variance was consistent with the comprehensive plan, given that the plan shows those homes as being residential areas, not a manufacturing zone. She also disagreed with staff that the lack off space to expand elsewhere should justify the variance. Finally, she said, "I agree with the people who said that building the structure [to house] these chemicals will affect the neighborhood."

"I disagree with council member Eyden," said Alexander. She cited staff arguments that the comprehensive plan calls for the Cytec site to be used for manufacturing and that the manufacturing plant and the abutting homes both predate the zoning code. If the outdated zoning code had been updated last year, the council probably would not be having this discussion, Alexander added, suggestion that the setback requirement would have been eliminated in a revamping of the ordinance. Of the buy-out request, she said, "I don't think that's fair. I don't think we can ask Cytec to buy private property."

Council Gerry Krage asked Cytec officials, "In your planning staging of this expansion, [when] you realized it was going to need a variance, did you reach out and inform the neighbors at any step?"

Wright responded, "No."

"I don't know if that would have changed [today's decision], but I would highly recommend it for anything in the future," Krage said. He added that "it would not be a bad idea" to budget for buying out these neighbors in the future. "If the neighborhood is going to be looking at changing the zoning [to residential], any future variances are going to be even more complicated. As you're moving forward with your successes and your safety, think about what you could do with that little area," he suggested.

Council members Paul Double, George Borzyskowski, Allyn Thurley, Alexander, and Mayor Mark Peterson voted to affirm the variance with the revised findings. Krage and Eyden voted against the variance. Cytec and the surrounding homes are in Krage's ward.

Given Cytec's location in our city, there is no where else for it to expand, Borzyskowski commented. Plus, the building it is planning is very safe, he added.

"We have a Board of Adjustment; we have the process for reason. I think that the board did [its] work," said Peterson. "I can't find a reason to overrule what the Board of Adjustment has already decided. I think that the safety concerns are already being met."

Thurley commented, "It's a fairly narrow decision. As much as we'd like to say, 'buy the houses,' we really have to look at what the Board of Adjustment did and say if we concur." 

 

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