The Brainerd City Council upheld the denial of a building permit to turn bar space occupied by the Last Turn Saloon into downtown apartments.
Last Turn bar owner Ed Mattson applied for a building permit to move his bar at 214 S. Eighth St. into the adjacent first floor restaurant space, previously occupied by The Vice, and transition the lower level bar area into eight apartment units.
Community Development Director David Chanski denied the permit based on noncompliance with the city’s zoning code. Mattson appealed that decision to the city council, which also acts as the board of zoning appeals, which affirmed Chanski’s denial during a meeting Monday, Aug. 17, via WebEx.
While downtown zoning code allows for mixed uses — like residential and commercial — in one building, residential dwellings cannot be located on the first floor/street level and are only allowed above commercial spaces. Standalone apartment complexes are not an acceptable use under the code, and Mattson’s plan would essentially turn the Last Turn building into just that, as there are already apartments on the second floor. Chanski cited those portions of the zoning code in an Aug. 3 letter to Mattson denying the application.
“When you look at the purpose and intent of the B-3 district, as stated in Section 515-61, it states that the purpose of the B-3 district is to ‘encourage the continuation of a viable, traditional downtown area by allowing retail, service, office and entertainment facilities and public and semi-public uses as well as the allowance of second-story dwelling units located about such uses,’” Chanski told the council Monday.
Mattson’s attorney, Ginny Knudson, argued the ordinance is ambiguous. First of all, third story apartments exist downtown, too, she said, though the ordinance only specifically mentions second story.
“So, obviously, what does that really mean?” Knudson said, noting cases of ambiguity should be settled in favor of the property owner. “It really means that we want to preserve the first level — street level — of the downtown for commercial purposes to preserve the viable, traditional downtown.
“But the ordinance also recognizes that there’s going to be a variety of residential dwelling spaces within the downtown. It’s not just going to be on the second story. There’s going to be other stories that get utilized for residences.”
She also pointed to the uniqueness of the Last Turn building, which does not have street-level commercial space. The ordinance prohibits first floor apartments, but the Last Turn doesn’t have a first floor. It has upper level apartment buildings and a lower lever bar, which Knudson said means the ordinance doesn’t even apply to the building.
“So we need to look at the overall intent,” she said. “And we need to interpret it in favor of the property owner.”
Knudson added the income from additional apartments would help Mattson, whose business has been greatly impacted by COVID-19.
Mattson said he feels the added apartments will benefit the community. And by moving the Last Turn Saloon upstairs, he said there is better access for some of his aging patrons, who are beginning to have a hard time going up and down the stairs. In his move, he would bring all the fixtures unique to the Last Turn up to the new space.
“I feel that maybe by preserving that experience on the main floor it would be beneficial, helpful to the community to keep it a viable downtown community,” he said. “And also for me as a business owner, as Ginny noted, it’s tough out there. We’ve got this fantastic space right next door that will be perfectly suited for moving the Last Turn completely upstairs.”
Council members discussed the meaning of “first floor” versus “ground floor,” in regards to Knudson’s assertion that the Last Turn does not have a first floor.
“In my opinion,” Council President Gabe Johnson said, “there’s a first floor, there’s a second floor, there’s a third floor. You can’t have a basement, the second floor and the third floor. That doesn’t make sense. … So I think (Chanski) interpreted the code correctly.”
Council member Jan Lambert, who was on the planning commission when the zoning code was written, said the intent behind it was to reserve street-level floors for retail space. She then moved to overturn Chanski’s appeal and approve Mattson’s building permit. That motion died for lack of a second.
Council member Dave Pritschet then moved to uphold Chanski’s decision, and Tad Erickson seconded it.
“Although I agree with Mr. Mattson and Ms. Knudson that it is confusing, when I look at that ordinance, I believe what is meant is for that first floor of a building — the one that you can enter, the lowest floor — to be kept as business and not as residential,” Pritschet said.
Erickson said he believed Chanski interpreted the ordinance correctly but wished it was written differently to accommodate Mattson’s proposal.
The motion passed 5-1, with Lambert opposed and Kelly Bevans recusing himself from voting, as one of Mattson’s attorneys is his landlord.
Though the council denied Mattson’s application, he still has options to move forward with his project. He can appeal the decision to a district court, or he can petition the planning commission to amend the zoning code to allow for his proposal.
An ordinance amendment request would first go in front of the planning commission, which would recommend either approval or denial to the council, who would have the final say.
Mattson said during a phone interview Tuesday he respects the council’s decision and is not yet sure what he will do moving forward.