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HomeMy WebLinkAbout1986 02-27 PCM MINUTES OF THE PROCEEDINGS OF THE PLANNING COMMISSION OF THE CITY. OF BROOKLYN CENTER IN THE COUNTY OF HENNEPIN AND THE STATE OF MINNESOTA STUDY SESSION FEBRUARY 27, 1986 CITY HALL CALL TO ORDER The Planning Commission met in study session and was called to order by Chairman George Lucht at 7:34 p.m. ROLL CALL Chairman George Lucht, Commissioners Molly Malecki, Carl Sandstrom, Lowell Ainas and Mike Nelson. Also present were Director of Planning and Inspection Ronald Warren, City Engineer Bo Spurrier, and Planner Gary Shallcross. Chairman Lucht noted that Commissioners Wallerstedt and Bernards were unable to attend this evening's meeting and were excused. APPROVAL OF MINUTES - FEBRUARY 13, 1986 Motion by Commissioner Sandstrom seconded by Commissioner Malecki to approve the minutes of the February 13, 1986 Planning Commission meeting as submitted. Voting in favor: Chairman Lucht, .Commissioners Malecki and Sandstrom. Voting against: none. Not voting: Commissioners Ainas and Nelson. The motion passed. APPLICATION NOS. 85038 AND 85039 (Robert Schell) ollowing the Chai man's explanation, the Secretary introduced the first item of business, a request for site and building plan and variance approval to expand the dental clinic at 412 66th Avenue North. The Secretary reviewed the contents of the staff report (see Planning Commission Information Sheet for Application Nos. 85038 and 85039 attached). The Secretary also reviewed the site plan and the greenstrip adjacent to 66th Avenue North. He stated that the setback off 66th Avenue North would be approximately 15 feet. The Secretary stated that he had inquired of the City Engineer as to the finality of the drawing from the Highway Department for the highway improvements at 66th Avenue North and Highway 252. He stated that the City Engineer has indicated that the plan for roadway improvements is basically final. The Secretary then reviewed with the Planning Commission the various options as to action on the applications before the Commission. He stated that the Commission could grant a variance and approve the proposed plan with the understanding that the Highway Department would be conveying excess right-of-way to a private party in the future. The Secretary also stated that the Commission could make a finding that excess right-of-way would exist based on the Highway Department plans and that, under this assumption, a normal setback would be required rather than the 50 ft. setback required from major thoroughfare right-of-way. The Secretary explained that it is the City's policy to allow the expansion of nonconforming structures if the expansion meets required setbacks. He stated that the Planning Commission could require an agreement similar to the agreement with the Evergreen Park Apartments project where an interim variance was granted for the period of construction on the condition that an agreement be concluded with the Highway Department for reconveyance to the apartment development after construction. He stated that the apartment owners had purchased the underlying rights for reconveyance as a part of that condition. He stated that the land that would be vacated by the Highway Department in this case should be combined with a 2-27-86 -1- neighboring lot, either the Schell Clinic or the vacant C2 zoned property to the north. He concluded by recommending that the Commission require the 15 ft. greenstrip from the new 66th Avenue North right-of-way line. Commissioner Ainas asked what liability the City might have if it approved the variance and the Highway Department kept the land to the east of the clinic. The Secretary responded that the requirement for a 50 ft. setback could be waived based on a finding that the land to the east of the clinic is excess right-of-way. In response to a question from Chairman Lucht, the Secretary explained that the land to the north was vacant and zoned C2. Chairman Lucht stated that he wanted to avoid attaching a useless leg of property to that site in the future simply to meet an area requirement. He likened that situation to the apartments behind Arthur TreacherIs along Beard Avenue North. The City Engineer stated that Mn/DOT was very reluctant to indicate that they would return land in the future because of past situations where they have been short- changed. He stated that the parcel which would be left over after the highway construction could be useful for storm water detention for either the clinic or the C2 zoned property to the north that is yet undeveloped. He stated that this potential use does give the property some value. Chairman Lucht then asked the applicant whether he had anything to add. Dr. Schell responded in the negative. Chairman Lucht asked the doctor what desire he might have for the property that would be vacated by the Highway Department. Dr. Schell responded that he would put in a bid for the property, but that he didn't really need the land for his own development. He stated that he wished to have a motion from the Planning Commission so that he could resolve his dealings with the State and know whether he could expand to meet contractual arrangements that he had entered into. Commissioner Malecki asked whether the variance could be recommended based on Section 35-111 of the Zoning Ordinance. The Secretary answered that an option would be to make a finding that excess right-of-way exists and that a 10 ft. sideyard setback could be allowed. He stated that the excess area essentially would become a separate parcel no matter who owned it. In answer to a question from' Chairman Lucht, the Secretary explained that the 15 ft. greenstrip could be provided on the site without creating a problem with the City's parking requirements. The Secretary then reviewed some standard conditions of approval and added that the plan should be modified to indicate the required greenstrip and that the variance would be obviated by a finding that excess right-of-way exists in this area. Commissioner Ainas stated that if Dr. Schell was willing to take the risk of perhaps suffering damages after the highway construction, he did not feel the City should stand in the way, given the layout of the plans proposed by the Highway Department. He recommended that the Commission approve the application subject to certain conditions and make a finding that there was surplus right-of-way to the east of the clinic site. ACTION RECOMMENDING DENIAL OF APPLICATION NO. 85039 (Robert Schell) Motion by Commissioner Malecki seconded by Commissioner Nelson to deny Application No. 85039, a request for a variance from setback requirements and greenstrip requirements, on the basis of a finding that excess right-of-way will exist to the east of the clinic site mitigating the effect of traffic, noise, dust and fumes, and on the basis that there is no hardship in providing the required 15 ft. greenstrip along 66th Avenue North. Voting in favor: Chairman Lucht, Commissioners Malecki, Sandstrom, Ainas and Nelson. Voting against: none. The motion passed. 2-27-96 -2 There followed a discussion of the conditions of approval for the site and building plan application. Regarding the requirement for a 15' greenstrip, Dr. Schell asked if he could modify the plans after the highway construction were completed when the exact improvements along 66th Avenue North would be known. The Secretary stated that the plans would have to be modified before issuance of building permits. ACTION RECOMMENDING APPROVAL OF APPLICATION NO. 85038 (Robert Schell) Motion by Commissioner Nelson seconded by Commissioner Sandstrom to recommend approval of Application No. 85038, subject to the following conditions: 1. Building plans are subject to review and approval by the Building Official with respect to applicable codes prior to the issuance of permits. 2. Grading, drainage, utility and berming plans are subject to review and approval by the City Engineer prior to the issuance of permits. 3. A site performance agreement and supporting financial guarantee (in an amount to be determined by the City Manager) shall be submitted prior to the issuance of permits to assure the completion of approved site improvements. 4. Any outside trash disposal facilities and rooftop mechanical equipment shall be appropriately screened from view. 5. The building addition is to be equipped with an automatic fire extinguishing system to meet NFPA standards and shall be connected to a central monitoring device in accordance with Chapter 5 of the City Ordinances. 6. An underground irrigation system shall be installed in all landscaped areas to facilitate site maintenance, including the additional greenstrip to be provided adjacent to 66th Avenue North. 7. B612 curb and gutter shall be provided around all parking and driving areas. 8. The plans shall be modified prior to the issuance of permits to indicate a 15 ft. greenstrip adjacent to 66th Avenue North. Voting in favor: Chairman Lucht, Commissioners Malecki, Sandstrom, Ainas and Nelson. Voting against: none. The motion passed. APPLICATION NO. 86007 (City of Brooklyn Center) The Secretary then introduced the next item of business, a request for preliminary plat approval to resubdivide the land surrounding the Earle Brown Farm site into four parcels. The Secretary reviewed the contents of the staff report (See Planning Commission Information Sheet for Application No. 86007 attached). The Secretary also discussed the grading plan for the plat. He stated that it was likely that two ponds would be required to provide storm water retention and purification. He stated that the ponds would serve both an aesthetic and a 2-27-86 -3- functional purpose. The Secretary also stated that the plat may eventually include the tract of land which contains Earle Brown Drive to the east of the plat. He stated that there would be a vacation of 10 ft. of right-of-way along the west side of Earle Brown Drive. There was also a discussion of the necessary cross access easements throughout the plat. PUBLIC HEARING (Application No. 86007) Chairman Lucht then opened the meeting for a public hearing and asked whether anyone present wished to speak regarding the application. Hearing no one, he called fora motion to close the public hearing. CLOSE PUBLIC HEARING Motion by Commissioner Ainas seconded by Commissioner Nelson to close the public hearing. The motion passed unanimously. ACTION RECOMMENDING APPROVAL OF APPLICATION NO. 86007 (City of Brooklyn Center) Motion by Commissioner Sandstrom seconded by Commissioner Nelson to recommend approval of Application No. 86007, subject to the following conditions: 1. The final plat is subject to review and approval by the City Engineer. 2. The final plat is subject to the provisions of Chapter 15 of the City Ordinances. 3. The following easements shall be indicated on the preliminary plat prior to final plat approval: a) A utility easement for sanitary and storm sewer through Lot 4. b) Stormwater retention areas for ponding of runoff. c) Easements for cross access to lots within the plat. 4. The plan for grading, water retention and water quality for the entire plat shall be approved by the Shingle Creek Watershed Management Commission prior to final plat approval. Voting in favor: Chairman Lucht, Commissioners Malecki, Sandstrom, Ainas and Nelson. Voting against: none. The motion passed. RECESS The Planning Commission recessed at 8:37 p.m. and resumed at 8:56 p.m. It was noted that the other Commissioners also left the meeting during the recess. APPLICATION NO. 86009 (Dr. John Lescault) - — — Following the recess, the Secretary introduced the last item of business, an appeal by Dr. John Lescault from the City's determination in 1984 that the chiropractic office in the residence at 6142 Brooklyn Boulevard is a special home occupation rather than a permitted home occupation. The Secretary reviewed the contents of the staff report (see Planning Commission Information Sheet for Application No. 86009 attached) . The Secretary also explained that a lawsuit brought by Dr. 2-27-86 -4- Lescault against the City was before the District Court and that it had been continued while Dr. Lescault exhausts his administrative remedies. The Secretary concluded his remarks by recommending that the Planning Commission table the application and direct staff to prepare a resolution regarding disposition of the matter. Mr. Kurt Erickson of the City Attorney's office added that Dr. Lescault would be paying the college for sending an intern to work with him in the home occupation. Chairman Lucht then asked the applicant whether he had anything to add. Mr. David Cody, (offices at 160 Hanover Building, St. Paul) an attorney representing Dr. Lescault, stated that his client contends that the administrative action to reclassify the chiropractic office as a special home occupation was arbitrary, unreasonable and capricious. He explained that the lawsuit brought by Dr. Lescault against the City had to do with the expansion which was denied and also the reclassification of the home occupation to a special use. He explained that the appeal before the Planning Commission only had to do with the reclassification of the home occupation to a special use. Mr. Cody stated that he also sat on the Planning Commission in another community. He stated that he was not present to talk about lawsuits, but wanted the Planning Commission to interpret the City Ordinances in light of the facts. Mr. Cody explained that Dr. Lescault moved into Brooklyn Center in 1975 and carried on his chiropractic business for 9 years with the knowledge of the City, but with no intervention from the City. He asked what happened in 19814 to make the operation a special use. He stated that between 1975 and 1984, the land around the Lescault residence had become more commercialized. He stated that the ordinance had been changed in 1982, but that it was basically a housecleaning ordinance amendment. He stated that the only change that had occurred was that Dr. Lescault requested a permit to expand his home occupation as well as his dwelling. He stated that the City staff asked the Planning Commission whether to reclassify the home occupation to a special use and allow an appeal or whether to simply review a special use permit application. Mr. Cody stated that the staff letter of June 26, 19824 was the reclassification of the home occupation to a special use. He stated that the City had no evidence at that time that the home occupation was a special use. He stated that the Planning Commission should consider the evidence available on June 26, 1984, not later testimony. Mr. Cody pointed out that Dr. Lescault is a licensed professional and that the City Ordinance classifies a professional office as a permitted home occupation. He explained that the ordinance does not provide any basis for distinguishing between one type of professional office and another. He, therefore, stated that there was no basis for reclassifying a professional office to be a special home occupation. He also stated that there was no definition in the ordinance of secondary and incidental. Mr. Cody stated that staff evaluated the expansion proposed by Dr. Lescault and saw no way of controlling and denying the expansion except by classifying the home occupation as a special use. He stated that there was no rational basis for the reclassification and that it should be reversed. The Planner then sought to clarify certain facts surrounding the reclassification of the chiropractic office to a special home occupation. He stated that the appeal 2-27-86 -5- option that was discussed with the Planning Commission on the June 14, 1984 meeting was the option for the staff to simply deny the building permit proposed by Dr. Lescault for the expansion on the grounds that the expansion would make the home occupation more than secondary and incidental to the residential use of the premises. Dr. Lescault could then appeal that action. The appeal discussed in the June 26, 1984 letter to Dr. Lescault , the Planner explained, was the option for Dr. Lescault to appeal the determination that his chiropractic office was, in effect, a special use. The Planner also stated that staff did not rely on the reclassification of the home occupation as a special use as a means of stopping the expansion. He stated that the staff always had the right to deny the building permit for the expansion on the basis that it would go beyond the ordinance limits of secondary and incidental use of the premises for a home occupation. He stated that that option was not exercised that the expansion was considered under a special use permit application instead. Mr. Cody disagreed with the Planner's interpretation of the minutes of the June 14, 1984 Planning Commission meeting. There followed a discussion as to what was contained in the minutes and the appeals that were possible to Dr. Lescault. Chairman Lucht concluded that the Planning Commission and the applicant have a disagreement as to what the minutes of the June 14, 1984 Planning Commission meeting actually say. Mr. Kurt Erickson of the City Attorney's office pointed out that the matter had been referred to the Planning Commission by the District Court in order to exhaust all administrative remedies. He urged the Commission to consider not only the facts that were known prior to June 26, 1984, but all facts that have come to light since that time as the best way of exhausting all administrative remedies. Mr. Erickson also stated that the access to Dr. Lescault's property was from 62nd Avenue North which is a residential street. Mr. Cody stated that his client was appealing the determination of the June 26, 1984 staff letter in which the chiropractic office was considered to be a special home occupation because of its land use impacts. He stated that there is no basis in the ordinance for distinguishing between a permitted and a special home occupation on the basis of traffic and, therefore, the reclassification had no foundation in the City ordinance. He pointed out that Dr. Lescault had operated as a permitted home occupation for approximately 10 years without any intervention from the City. Mr. Cody also explained that the nonresident intern working in the home occupation was basically there for an educational experience. He stated that to consider such a person as a nonresident employee would be the same as considering someone who cut the grass in the yard to be a nonresident employee in the home occupation. The Planner again attempted to clarify the appeals that were discussed by the Planning Commission in June of 1984 and the appeal brought by the applicant. He also pointed out that Dr. Lescault actually has more rights afforded to him under the special use classification than if he were limited to the classification of a permitted home occupation. Mr. Erickson asked how that was the case. The Planner pointed out that special home occupations are allowed to have a nonresident employee and equipment not normally found in the home. He added that permitted home occupations are not allowed to have either. The Secretary asked the applicant whether he wanted to live under the regulations in force in 1975 governing permitted home occupations and operate without an employee or x-ray equipment. He stated that both these aspects of his home occupation were 2-27-86 -6- prohibited for permitted home occupations in 1975 just as they are today. Mr. Cody responded that Dr. Lescault simply wants the rights that he enjoyed from 1975 to 1984. The Secretary answered that he had not been aware of the equipment or of the nonresident employees working in the home occupation and that he considered these to be zoning violations which could not continue once they came to light. Chairman Lucht discussed the special use status with the applicant and his attorney. He pointed out that equipment not normally found in the home requires a special use permit. Mr. Cody stated that that equipment had been in the home 10 years prior to the reclassification. Chairman Lucht also pointed out that an outside employee requires a special use permit. Mr. Cody stated that another chiropractor comes to the house to treat patients when the Lescaults are out of town and that that chiropractor is paid directly by the patients. Chairman Lucht stated that Dr. Lescault was obviously trading services of value with the other chiropractor and was receiving some benefit from the fact that that chiropractor did come in and take over patients that might be lost if they were not treated while he was gone. Dr. Lescault explained that his malpractice insurance requires that he provide continuing care to patients. Chairman Lucht pointed out that the special use classification of the home occupation would allow another chiropractor to come onto the premises to provide that continuing care. The Secretary asked whether patients could go to the other doctor's office. Mr. Cody responded that that was not practical, that it was important to serve the patients within the geographic area that they are accustomed to. The Secretary stated that, for another doctor to come onto the premises to treat patients when Dr. Lescault is away constitutes a nonresident employee. Mr. Cody argued that the home occupation had been allowed as a permitted use for 10 years. The Secretary stated that it was a zoning violation as long as it exceeded the parameters of a permitted home occupation in the Zoning Ordinance. Commissioner Sandstrom asked whether x-ray equipment should not be assumed in a chiropractic office. The Secretary stated that he did not know whether that was an appropriate assumption. The Secretary stated that he felt Dr. Lescault could have been classified as a special use in 1975, but was not. He stated that Dr. Lescault essentially got away with a zoning violation for a number of years and that it was appropriate for him to seek a special use permit for the things that he was already doing. Dr. Lescault pointed out that he had gotten a permit for the electrical service needed for the x-ray equipment and that it was inspected by the City. He also stated that his operation is checked by the State every year. Commissioner Malecki stated that the Planning Commission was essentially being asked to allow the continuation of a zoning violation rather than comprehend the home occupation as a special use. She stated that she could not believe the applicant was serious about this request. Mr. Cody asked whether the meeting was being taped. Chairman Lucht responded in the negative. Commissioner Ainas speculated that a betting operation could have 20 phones installed by Northwestern Bell and partitions installed and inspected by the City and might operate without anyone understanding the purpose of these improvements. He stated, however, that when the operation was discovered by the Chief of Police, it would certainly be stopped whatever prior permits were granted. He stated that he saw no justification in reversing the decision of 1984 in classifying Dr. Lescault's chiropractic office as a special use. 2-27-86 -7- Following further protestations by Mr. Cody on the nature of the business and its prior status and the reclassification action, Chairman Lucht stated simply that the Commission has a disagreement with the appellant on facts and interpretation of facts. He added, however, that the Planning Commission did not want to be entirely negative toward Dr. Lescault. He stated that Dr. Lescault has improved his property and that he is a credit to the community. He concluded, however, that past precedent and City ordinances limit the discretion of the Planning Commission in classifying home occupations. He stated that he felt it was clearly a special home occupation. Commissioner Sandstrom asked what difference it would make if the home occupation were allowed under the proper ordinances. Chairman Lucht stated that that was already being done and asked for the reason for the appeal. Mr. Cody suggested that the Commission read the conditions of the special use permit and mentioned hours of operation as one reason for the appeal. Mr. Kurt Erickson, the City's attorney in this case, pointed out that the conditions of approval came primarily from information contained.in Dr. Lescault's letter of application. He stated that Mr. Cody seemed to argue that the conditions are too restrictive, but, he said, they come from the very applications submitted by Dr. Lescault. Mr. Erickson went on to address the matter of emergency treatment. He stated that he did not feel it was the City's intent to bar Dr. Lescault from treating patients on an emergency basis at times other than the normal operating hours limited in the special use permit. Planning Commission members concurred and the Secretary pointed out that the hours limitation in the special use permit pertained only to normal office hours. Mr. Cody then ceased to argue the appeal and called for the question to be voted on. The Secretary pointed out that if the City upheld the appeal, Dr. Lescault would be much more restricted than he is as a special use. He pointed out that Dr. Lescault could not have an outside employee and could not have equipment not normally found in the home without a special use permit either under the ordinance in effect in 1975 or 1984. He stated that Dr. Lescault could seek an amendment of the conditions of approval if he felt they were too restrictive. Commissioner Malecki asked whether a person can cease being a special use home occupation if he or she wants to. The Secretary answered in the affirmative, provided they live within the restrictions for permitted home occupations. ACTION TABLING APPLICATION NO. 86009 (Dr. John Lescault) Motion by Commissioner Nelson seconded by Commissioner Ainas to table Application No. 86009 and direct staff to prepare a formal resolution recommending denial of the application and setting forth the Commission's reasoning. Voting in favor: Chairman Lucht, Commissioners Malecki, Sandstrom, Ainas and Nelson. Voting against: none. The motion passed. ADJOURNMENT Following a brief discussion of upcoming business items, there was a motion by Commissioner Nelson seconded by Commissioner Sandstrom to adjourn the meeting of the Planning Commission. The motion passed unanimously. The Planning Commission adjourned at 10:09 p.m. U� Chairman 2-27-86 -8-