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HomeMy WebLinkAbout1979 06-14 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 REGULAR SESSION June 14, 1979 CITY HALL CALL TO ORDER The Planning Commission met in regular session and was called to order by Chairman Pro tem William Hawes at 7:32 p.m. ROLL CALL Chairman Pro tem Hawes, Commissioners Malecki , Theis, Lucht and Erickson. Also present were Superintendent of Engineering James Noska, Director of Planning and Inspection Ronald 'Darren and Planning Assistant Gary Shallcross. The Secretary informed the Commission that Commissioner Manson had called him and informed him that she would be out of town for the June 14, 1979 and June 28, 1979 Planning Commission meetings. APPLICATION NO. 73062 (Oasis Petroleum) Following the Chairman's explanation, the first item to be considered was a request for a special use permit and site and building plan approval to remodel and operate the existing Dayton's Gas Station at 2605 County Road 10. The Secretary explained that the remodel plan envisioned a self service operation containing two pump islands with one person on duty primarily to oversee the site and accept payment for gasoline. The Secretary also explained that the appli.- cation was being brought back to the Planning Commission for review because at the time of the October 5, 1978 recommendation, the site plan had not been approved by the applicant's (Oasis Petroleum) home office in Los Angeles . The applicant's respresentative, Mr. Peter Fischer, he said, was informed at that time that if there were any revisions to the site plan following the review by Oasis, the matter would again be referred to the Planning Commission. The Secretary pointed out that the new site plans do comprehend changes such as a reduction in the number of gasoline dispensing islands from three to two, the modification of an area designed for customers to obtain air, water and check oil , and additional landscaping. lie indicated that the applicant is also proposing to retain an existing storage building that is presently being utilized on the site, and that concrete, rather than blacktop, would be installed in the service area. He also noted that the site is designed in such a manner as to provide a one-way traffic flow. Chairman Pierce arrived at 7:40 p.m. The Secretary added that the plans would have to be certified by an architect and engineer registered in the State of Minnesota and that the landscape plan should show tree dimensions in inches rather than gallons before building permits would be issued. The Commission then discussed the traffic pattern implied in the plan and the effect of the 45 degree driveway outlet on existing traffic. Chairman Pierce called on the applicant to speak on behalf of the proposal . The applicant stated that the hours of operation would probably be less than the original proposal of 24 hours a day, citing the gas shortage as a primary reason. Commissioner Erickson asked whether the plan had been approved by the corporate office of Oasis Petroleum. The applicant responded that it had. Com- missioner Theis expressed a concern over the freezing of the air and water lines during the winter. The applicant responded that proper filitration to purge water from these lines would prevent a freeze up in the winter time. 6-14-79 -1- In response to Commissioner Hawes, the' applicant also indicated that they did not plan to sell oil as previously indicated. Chairman Pierce expressed concern over the radius of the curb at the point of egress from the 45 degree driveway. The applicant indicated his willingness to . work out this problem with the City Engineer. In answer to additional questions from the Commission, the applicant indicated that the building on the site would be of the same size as previously proposed with a concrete foundation. The drainage pattern, he said, would be toward the perimeter road. He explained that the traffic flow system on the site was de- signed to control the cars using the self service islands to ensure payment. He indicated that the site, if motorists use it efficiently, could accommodate up to 10 to 12 cars at a time. Commissioner Lucht asked whether there would be any problem rectifying the designation of tree widths on the landscape plan. The applicant replied that there would be no objection that gallons measurements was simply the way Oasis Petroleum designates the size of trees and plantings. ACTION RECOMMENDING APPROVAL OF APPLICATION NO. 78062 (Oasis Petroleum) Motion by Commissioner Erickson seconded by Commissioner Malecki to recommend approval of Application No. 78062 submitted by Oasis Petroleum for special use permit and site and building plan approval to remodel and operate the present Dayton's Gas Station at 2605 County Road 10, 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. Drainage, grading, utility and landscape plans are subject to review and approval by the City Engineer prior to the issuance of permits. 3. A Performance Agreement and supporting financial guarantee (in an amount to be determined by the City Manager) shall be submitted to assure completion of approved site improvements prior to the issuance of permits. 4. All outside trash disposal facilities and rooftop mechanical equipment shall be appropriately screened from view. 5. The plans shall be certified by an architect and engineer registered in the State of Minnesota prior to the issuance of permits. 6. The special use permit is issued to the operator of the facility and is nontransferable. 7. The special use permit is subject to all applicable codes, ordinances and regulations, including special licensing requirements, and violation thereof shall be grounds for revocation. 8. Plan approval is exclusive of all signery which is subject to Chapter 34 of the City Ordinances. 9. The curb cut on the east end of the site shall be modified in a manner approved by- the City Engineer to provide a better turning radius. 6-14-79 -2- Voting in favor: Chairman Pierce, Commissioners Malecki , Theis, Hawes, Lucht and Erickson. Voting against: none. The motion passed unanimously. APPLICATION NO. 79018 (Arthur Kvamme) The next item of consideration was a request by Arthur Kvamme to rezone from R1 to R3 an approximate 3.5 acre tract of land located within. the 5500 block of Camden Avenue North and Bryant Avenue North. The Secretary pointed out the location of the property and explained that the applicant is seeking the rezoning to construct 7 quadra homes on the site if the rezoning to R3 is approved. The Secretary outlined for the Commission the arguments made by the applicant for the rezoning. The applicant contends that the area is in need of a condomimium complex for many of the older residents in the area; that public utilities to service the area are already available, that the joint effort of combining the properties in the rezoning eliminates potentially landlocked property and makes practical use of the land; that traffic to the area will be decreased; that the development will increase the City's tax base; and that the City would rid itself of a nonconforming use (Madsen Floral Company) . The Secretary informed the Commission that the Southeast Neighborhood Advisory . Group had met on May 3, 1979 and recommended that the application be given favorable consideration. The Secretary also noted the applicant's contention that R1 development of the property as presently zoned is unfeasible. Such development would require variances from either Chapter 15 or Chapter 35, he said. He added, however, that such variances might be justified on the grounds that their denial would not allow reasonable use of the property. The Secretary acknowledged the applicant's financial concerns, but stated that such consider- ations should not be the deciding element in rezonings. Rather the overall public welfare should be the chief concern and whether the proposed zoning is compatible and consistent with surrounding land uses. With respect to the proposed zoning classifications, the Secretary said, there is a scarcity of mid-density residential housing in the Southeast Neighborhood relative to other neighborhoods in the City. The Secretary referred the Com- mission to the Rezoning Evaluation Policy and Guidelines of Section 35-208 of the City Ordinances and encouraged them to judge the present rezoning request on the basis of these guidelines. After the Secretary's presentation, Chairman Pierce called on the applicant to speak to the proposal . Mr-. Kvamme indicated that he had tried to get the opinion of realtors as to the compatibility of townhouses with single family residential homes. What feedback he had received, he said, was generally positive. He added that the complex might be able to make use of the boiler presently on the site which utilizes both gas and oil . He. also indicated that solar energy .might be a viable energy source at some time in the future. In response to Commissioner Theis, the applicant stated that there were six owners involved in the proposed rezoning and that all of the owners agreed to the proposal . Asked by the Chairman to speak to the neighborhoods reaction, Commis- sioner Lucht,who attended the neighborhood advisory group meeting, stated that members of the advisory group preferred that the roadway be a through street for safety reasons, rather than the two dead end streets proposed by the applicant. Chairman Pierce then opened the meeting for comments by residents in the area. Bob Ellingson of 5453 Bryant Avenue North stated that the primary concern of the neighborhood is over the density allowed under the proposed zoning. He asked what control exists to limit the density of the project. The Secretary answered that the zoning designation is the primary control . Setbacks and buffers, he said, also play some role. Under the proposed zoning, he said, 8 units per acre would be allowed which would result in a maximum of 28 units 6-14-79 -3- for the site. Mr. Ellingson asked what the definition of a garden apartment is. The Secretary replied that garden apartments are three or more dwelling units horizontally attached in a linear or cluster arrangement. The units are separated from each other by a wall , or walls, extending from foundation to roof. He added that a characteristic of garden apartments is their private entrances. Mary Simmons, of 5530 Camden Avenue North, asked for confirmation that once the land is rezoned, it could be developed for rental units as well as owner occupied units. Chairman Pierce acknowledged that the City cannot control owner- ship by zoning classification. Mrs. Simmons asked whether there was anything to prevent a rental complex on the site. The Secretary stated that although the City cannot dictate a rental or owner/occupied development in the R3 zone, it has established a rental licensing program as a means of controlling the maintenance and upkeep of apartments. He cited the City's ongoing ,enforcement of the Housing Maintenance Ordinance. David Simmons of 5537 Camden Avenue North contended that the townhouse complex would add to traffic in the area of 56th and Camden Avenue North, a particularly dangerous intersection. Commissioner Lucht questioned whether the traffic would actually be significantly more than if developed for single family. The Super- intendent of Engineering responded that traffic projections for multiple family . units are 6 to 8 trips per day while single family units are projected at 10 to 12 trips per day, therefore, he said, the total amount of traffic would not be significantly greater even though more units existed on the site. Mr. Ken Trombley, of 803 - 56th Avenue North, stated that he was one of the owners involved in the proposed rezoning and that he planned to stay in the area. He assured those present that he would not favor anything that would be detrimental to his own property. He also cited the fact that the new freeway would likely draw some of the traffic away from the neighborhood. Mrs. Simmons contended that traffic would be increased on Camden Avenue North, where she lives. She cited a recent accident at 56th and Camden Avenue in which two people were killed and warned against increasing traffic in that area. Commissioner Theis asked whether the concerns over traffic have been brought to the attention of City staff. Mr. Arnie Saf, of 5531 Camden Avenue North, recalled that the neighborhood brought a petition for a stop sign at the intersection of 56th and Camden Avenues North, but that they were refused. A discussion then ensued over the sentiment of the neighborhood concerning the proposed rezoning. A number of Commissioners could not reconcile the fact that the neighbors present seemed unanimously opposed to the rezoning, while the minutes of the Neighborhood Advisory Group meeting indicated unanimous support for the proposal . The Administrative Assistant pointed out that the minutes of the neighborhood meeting record a vote only of the members of the Neighborhood Advisory Group. The reaction of neighbors living adjacent to the land in questions was definitely mixed, he said- 1.Mr. Saf stated that he had been at all the meetings and that more were opposed than in favor.. Commissioner Theis asked what the present traffic count for the Madsen Floral Company was. The Superintendent of Engineering answered that it was difficult to make an estimate without knowing the size of the operation, but that generally traffic for counercial space is calculated at 14 trips per thousand square feet of gross floor area per day. Commissioner Malecki asked why the owners had chosen an R3 zoning designation rather than R2. Mr. Kvamme stated that it would amount to the same number of units at 5400 square feet per unit. A discussion then ensued in which the Secretary clarified for the Commission the different conditions attaching to R2 and R3 development. R2 development allows one unit per 6200 square feet. he said, and that is exclusive of area dedicated for streets. 6-14-79 -4- Building Official Will Dahn noted that a variance from the required lot depth would be necessary to develop the property for two family units. Mr. Kvamme argued that the cost of developing the street would make single family develop- ment uneconomical . Chairman Pierce, however, did not see a marked difference between R2 and R3 units in terms of street costs per land unit. The Building Official noted that private roadways are slightly narrower than public right-of- way. Commissioner Theis inquired when the Madsen Floral property was zoned R1 . The Secretary responded that to his knowledge it was in 1968. Chairman Pierce stated that the question at hand boils down to what the best use of the land is and what impact that use will have on the surrounding neighborhood. ACTION RECOMMENDING APPROVAL OF APPLICATION NO. 79018 Arthur Kvamme) Motion by Commissioner Theis seconded by Commissioner Erickson to recommend approval of Application No. 79018, submitted by Arthur Kvamme, noting that the proposal is consistent with the Rezoning Evaluation Policy and Review Guidelines and further citing the following: 1 . The proposed rezoning will benefit and not detract from the neighborhood and the rezoning will provide additional mid- density residential property to the Southeast area of the City which has relatively little R3 zoning, thus providing a wider range of housing choice. 2. The proposal will assist in the eventual elimination of a nonconforming use. 3. The subject property can be considered generally unsuited for uses permitted in the present zoning district because a variance would be needed to develop the property as single family residential . 4. The proposal will make better use of extraordinarily deep parcels that could be used for other development. 5. Traffic impact on the area will be nominal . Voting in favor: Chairman Pierce, Commissioners Malecki, Theis, Lucht and Erickson. Voting against: Commissioner Hawes. The motion passed. Commissioner Hawes explained his dissenting opinion by stating that he felt the neighborhood should be given greater consideration in changing the zoning designation of the land in question. Chairman Pierce suggested that the neighboring property owners be notified for review of site and building plans. APPLICATION NO. 79019 (Brauer & Associated The Secretary introduced the next business item, that of consideration of a pre- liminary plat for an approximate 30 acre site located at the northeast quadrant of County Road 10 and Shingle Creek Parkway. The Secretary stated that the Plan- ning Commission had tabled the matter on April 12, 1979 and directed staff to work with the affected property owners to determine if a better plan for the area could be realized. There was concern raised regarding the location of a proposed median cut adjacent to the proposed cul-de-sac, he said. The proposed location for a median cut would virtually eliminate any other median cuts along Shingle Creek Parkway in this area. Brookdale Ford, meanwhile, would lose its present median cut and not be allowed a new one because of its proximity to the proposed cul-de-sac. 6-14-79 -5- The Secretary reported that City staff met with representatives of Brookdale Ford, the Rauenhorst Corporation (owner of the property on which the Northwestern Bell facility is located), a representative of Brooklyn Center Industrial Park, and representatives of Northwestern Bell Telephone Company on May 7 and May 17, 1979. These meetings seemed to be making progress when on May 25, 1979, the Secretary was informed by phone that Northwestern Bell is not interested in participating financially to obtain a roadway and medain cut at the north property line of the Charlson property. Therefore, Rauenhorst Corporation was not in a position to negotiate the matter further, and they would assume their previous. position of desiring a median cut in the area, but not wishing to dedicate right-of-way or participating in the cost to reimburse the property owner for roadway dedication. The Secretary added that without such cooperation a revised plat is not possible and the owner wishes to proceed with the preliminary plat as proposed. The Secretary stated that if the proposed plat were approved with one median cut servicing the Charlson property there would be no further opportunity to create median cuts that could be commonly shared by abutting properties as well . He also noted that there are no concrete development plans for the undeveloped C2 parcels owned by Mr. Charlson. He recommended approval of the plat without consideration to median cuts along Shingle Creek Parkway. He further stated that the matter of median cuts should be reviewed in conjunction with develop- ment proposals and, hopefully, agreement as to common access for all parcels concerned can be realized. The Commission briefly discussed the median cut situation along Shingle Creek Parkway. Chairman Pierce then called on the applicant to speak to the proposal . Mr. Brauer admitted that both public and private experts have recommended a bad solution. He suggested that the solution is for the City to assess half of the right-of-way acquisition costs to neighboring properties who will benefit by the installation of a public street. He stated that his client would prefer to have two median cuts, but that since the City would not allow this, the only solution is to put a road in at the north end of the Charlson property with half of the costs assessed- to other properties. If this alteration were in- cluded in the Commission's recommendation to the City Council , he said, his firm would be happy to submit a revised plat proposal . Chairman Pierce asked the Superintendent of Engineering for his recommendation. The Superintendent of Engineering stated that he could not make a recommendation regarding assessment of right-of-way acquisition costs since the City had not assessed such costs in the past. Mr. Brauer clarified that he only recommended assessment of the half of the street that abuts other properties and that this cost would be spread over the entire assessment district. The Superintendent of Engineering outlined for the Commission the boundaries of the assessment district in question and stated that the City's policy in the past has been that right-of-way be dedicated by the owner of the property with the cost of construct- ion assessed on an area basis to all of the land within a given assessment , district, so that the cost of roads could be born by all users in the Industrial Park. Commissioner Theis questioned the applicant concerning the proposed location of the road. Mr. Brauer explained the logic of the proposal , noting that it would allow use by the Northwestern Bell Telephone Company which presently desires another median cut and at the same time would not penalize Brookdale Ford which would otherwise lose its only median cut. Chairman Pierce asked why the applicant proposed larger lots abutting Shingle Creek Parkway with smaller lots in the rear of the property. Mr. Brauer answered that the larger users prefer frontage on Shingle Creek Parkway and that the proposed arrangement is to accommodate those users. 6-14-79 -6- At that point the Secretary suggested that the Commission again table the appli- cation to allow the applicant and City staff to deal with the technical problems with the plat and questions regarding the assessment of right-of-way acquisition. Chairman Pierce asked the Commission whether it was their consensus that the new proposal presented by the applicant was something which they would approve if these details were worked out. The Commission- generally acknowledged their agreement. ACTION TABLING APPLICATION NO 79019 (Brauer & Associates) Motion by Commissioner Theis seconded by Commissioner Hawes to table Application No. 79019 with direction to staff to investigate the outstanding questions re- lating to the plat. Voting in favor: Chairman Pierce, Commissioners Malecki , Theis, Hawes, Lucht and Erickson. Voting against: none. The motion passed. RECESS The Planning Commission recessed at 9:54 p.m. and resumed at 10:08 p.m. APPROVAL OF MINUTES - May 24, 1979 Motion by Commissioner Hawes seconded by Commissioner Erickson to approve the minutes of the May 24, 1979 meeting of the Planning Commission as submitted. Voting in favor: Chairman Pierce, Commissioners Malecki , Theis and Erickson. Voting against: none. Not voting: Commissioner Lucht. The motion passed. APPLICATION NO 79024 (Brooklyn Center Industrial Park) The Secretary introduced the next item of business, that of consideration of a preliminary plat to subdivide an approximate 3 acre tract into 11 single family lots. The tract of land is located adjacent to and easterly of Xerxes Avenue North, south of the freeway. The Secretary noted that the plat was tabled by the Planning Commission on' May 10, 1979 in order that a question regarding the appli- cability of a 50 foot setback off major thoroughfares for rear yards could be addressed by the City Attorney's office. The Commission had also requested a statement from the Department of Transportation regarding when the Xerxes Avenue freeway ramps would be vacated. Regarding the 50 ft. setback from major thoroughfares the Secretary informed the Commission that he had received a letter from the City Attorney's office which interpreted the ordinance provision as applying only to the front and side corner yard setbacks. The Secretary also reported that the City Engineer has received correspondence from the Department of Transportation regarding the status of the Xerxes Avenue freeway ramps, but that no date had been set for the vacation of the freeway ramps. The Secretary pointed out that the application reveals an inconsistency of the City's Zoning Ordinance with respect to the setback requirements for major thoroughfares. It does not seem reasonable, he said, that if an extraordinary setback is required off a major throughfare, that the rear yard setback be excluded from this requirement. He recommended that the Commission consider this matter at an upcoming meeting and that the subject of setbacks off major thoroughfares be considered generally. Commissioner Hawes inquired whether any noise walls would be installed behind the lots in question. The Secretary answered that they would not. There was a brief discussion of the future use of the land now being used for the freeway ramps. ACTION RECOMMENDING APPROVAL OF APPLICATION N0. 79024 (B.C.I .P.) Motio by Commissioner Malecki seconded by Commissioner Hawes to recommend approval of Application No. 79024 subject to the following conditions: 1 . The final plat is subject to the requirements of Chapter 15 of the City Ordinances. 6-14-79 -7- 2. The final plat is subject to review by the City Engineer. 3. Prior to final plat approval by the City Council an agreement shall be reached between the Osseo School District and the Brooklyn Center School District so that their common boundary line does not intersect proposed lots. Voting in favor: Chairman Pierce, Commissioners Malecki, Theis, Lucht and Erickson. Voting against: none. The motion passed. APPLICATION NOS. 79028 and 79038 _(Hot Line Real) The next items of consideration were Application No. 79028, preliminary plat approval , and Application No. 79038, site and building plan approval , for the Moorwood Townhouses. The Secretary stated that the area in question involved the present Moorwood Townhouses that are located north of County Road 10, east of the Twin Lake North Apartments and lies westerly of the single family residential homes facing June Avenue North. He added that it is the intent of the applicant to complete the yet unbuilt portions of the Moorwood Townhouses. The Secretary reported that the applicant is seeking preliminary plat approval under Application No. 79028 to subdivide Outlots A, B, and C of the Moorwood Townhouse Addition into 16 lots consisting of Block 1 , 2 and 3 of the Moorwood Townhouse Second Addition. He stated that approximately two or three years ago, the First Wisconsin Bank took over ownership of the complex following fore- closure proceedings. Foundations had been laid at that time in the area con- templated for development under this application and the City required that either construction on the units be completed or the open. foundations filled in because the situation was considered a hazard. First Wisconsin chose not to continue the construction and filled in the foundations. They also undertook a platting at that time which established the three blocks under consideration as outlots for future development. The Secretary stated that Application No. 79038 was a request for site and bui.lding plan approval to construct the 16 townhouse units. It is the applicant's intent to complete the buildings in the exact same manner as originally approved by the City with no deviations or changes. The Secretary also responded that the First Wisconsin Bank has posted a site Performance Bond and has undertaken the completion of the approved landscape plan for the common areas. He stated that a site performance inspection has been made and that the staff has met with a representative of First Wisconsin and the applicant regarding site work remaining to be completed. The bond will be held until the City has assurance that the original landscape plan will be implemented. The Secretary noted one change from the original site plan, that being the con- tinuation of Lake Curve Lane. He stated that under the original plan this street was not intended to make a complete loop to Shores Drive, although blacktop has been installed. He added that it was his understanding that persons living in the complex desire the continuation of the loop. He noted that B-612 concrete curb and gutter would be required in this area. PUBLIC HEARING Chairman Pierce then opened the meeting for a public hearing. He asked the applicant whether there was any significant change from the original proposal . Mr. Dale Melby responded that no changes were contemplated at this time and indicated to the Secretary that he would pick up liability for the site work not yet completed by First Wisconsin by way of a cash deposit. 6-14-79 -8- CLOSE PUBLIC HEARING Motion by Commissioner Theis seconded by Commissioner Lucht to close the public hearing. Voting in favor: Chairman Pierce, Commissioners Malecki , Theis, Hawes Lucht and Erickson. Voting against: none. The motion passed. ACTION RECOMMENDING APPROVAL OF APPLICATION 110. 79028 Hot Line_ Real Motion by Commissioner Malecki seconded by Commissioner Lucht to recommend ap- proval of Application No. 79028 subject to the following conditions: 1 . Final plat is subject to review and approval by the City Engineer. 2. Final plat is subject to the requirements of Chapter 15 of the City Ordinances. Voting in favor: Chairman Pierce, Commissioners Malecki , Theis, Hawes, Lucht and Erickson. Voting against: none. The motion passed unanimously. ACTION RECOMMENDING APPROVAL OF APPLICATION NO. 79038 Not Line Realty) Motion by Commissioner Hawes seconded by Commissioner Theis to recommend approval of Application No. 79038 subject to the following conditions: 1 . The building plans are subject to review and approval by the Building Official with respect to applicable codes prior to the issuance of permits. 2. Any grading, drainage, and utility plans are subject to review and approval by the City Engineer prior to the issuance of permits. 3. A Performance Agreement and supporting financial guarantee (in an amount to be determined by the City Manager) shall be submitted to assure completion of approved site improvements. 4. The Homeowners Association Agreement is subject to review by the City Attorney to assure that the lots being developed are properly included in the agreement. 5. Plan approval comprehends completion of Lake Curve Lane as a full loop through to Shores Drive. B-612 curb and gutter is required in the area where it is not already in place. 6. Development of this portion of the Moorwood Townhouses shall also be subject to applicable conditions of the original development approval by the City Council under Application No. 70012. 7. The property is subject to final plat approval prior to the issuance of occupancy permits. 8. Trees and shrubs for the new townhouse units shall be compatible with plantings for the existing units. Voting in favor: Chairman Pierce, Commissioners Malecki , Theis, Hawes, Lucht and Erickson. Voting against: none. The motion passed. APPLICATION NO. 79030 (B.C.I .P. - Shingle Creek Plaza) The Secretary introduced the next item of consideration, site and building plan approval to construct three speculative buildings totalling approximately 140,000 sq. ft. on a 13 acre site located on Freeway Boulevard west of Schmitt Music. The Secretary noted that the applicant has shown parking for 262 cars which 6-14-79 -9- implies that approximately 15% of each building could be used for offices with the remaining portion to be used for manufacturing and storage. The Secretary pointed out that Freeway Boulevard is designated as a major thoroughfare and that a 50 ft. building setback is therefore required. He stated that there is a discrepancy on the plan at the southeast corner of Building No. 3 which does not meet setback requirements. He added, however, that the architect has acknowledged this discrepancy and will correct it. The Secretary voiced another concern having to do with the 120 ft. area proposed between Building No. 1 and Building No. 3 which is intended as loading dock area. Generally, about 135 to 140 feet is provided in such areas. The Secretary also noted the existence of a 25 ft. sanitary sewer easement which runs in a south- easterly direction at about the center of the site from west to east for approxi- mately 635 ft. and then heads in a southerly direction towards Freeway Boulevard. He indicated that buildings cannot be located over this type of easement, but can be built up to it. The Secretary then discussed the building exterior and landscape treatment proposed for the site. The area behind Building No. 1 along Shingle Creek would be treated with a natural ground cover. Mr. Beisner emphasized that the use on the site would be a service center and would not require a great deal of truck traffic . He stated that the idea behind the narrower driving lane was to, in fact, discourage such traffic and to widen the lane to 140 ft. would have the opposite effect. He voiced the assumption that potential users would look at the layout of the building and would locate elsewhere if their operation involved the use of large trailers. The Secretary pointed out that this might turn out to be wishful thinking, that other types of uses could come in eventually to aggrevate the situation. Commissioner Hawes asked whether all of the dock doors could be moved to one building. Mr. Beisner responded that the space arrangement within the buildings prevented this. He also made the point that increasing the driving area width by 20 feet would simply eliminate 20 feet of green area. Commissioner Hawes further asked the applicant about the possibility of drive-in doors. Mr. Beisner replied that drive-in doors were being considered, but that dock doors tend to be rented faster than drive-in doors. In answer to Chairman Pierce, Mr. Beisner commented that the large open preserve at the northwest portion of the site was left unused because of poor soil conditions and in order to make for an attractive view from the offices. The Planning Commission then discussed with the applicant the possibility of moving the westerly curb cut further west to serve two properties at the same time. The Commission then debated the question of the separation between the two buildings at some length. Mr. Beisner reiterated that his firm was not en- couraging the use of large semis in this area of the Industrial Park, and estimated that only 25°0 of the dock doors were being used in the Industrial Park at any one time. Commissioner Lucht stated that he preferred to see the plan contemplate the optimum use, not simply what the applicant can get by with. Commissioner Lucht left the table at 11 :15 p.m. and returned at 11 :23 p.m. 6-14-79 -10- The Secretary recommended that the applicant either widen the driveway or put in one building solely with drive-in doors. Mr. Beisner argued that the long range interest of the owner and that of the City are essentially the same, but the Secretary countered that the City would have to live with the decisions made now long after he and Mr. Beisner have left the scene. In further discussion, Commissioner Erickson pointed out that controlling the size of the vehicle making deliveries would be difficult. In response to a comment by Mr. Beisner, the Secretary stated that the Planning Commission did have the authority to require a wider separation between buildings . Chairman Pierce asked what the problem would be with widening the separation. Mr. Beisner answered that soil conditions to the northwest prevent moving Building No. 1 and parking requirements would make it difficult to move building No. 3 toward Freeway Boulevard. He suggested the possibility of staggering the location of the front building in order to widen the driving lane. ACTION TABLING APPLICATION NO. 79030 Motion by Commissioner Lucht seconded by Commissioner Malecki to table Application No. 79030 for site and building plan approval for Shingle Creek Plaza, with direction to the applicant to provide a plan indicating a 140 ft. separation between Building Nos. 1 and 3. Voting in favor: Chairman Pierce, Commissioners Malecki , Hawes, Lucht and Erickson. Voting against: Commissioner Theis . The motion passed. Commissioner Theis stated that he felt the intent to get a different clientele for the building was genuine and did not feel that the 140 ft. separation was necessary. APPLICATION NOS 79031 and 79032 (Meadow Corporation) The next item of consideration was Application Nos. 79031 and 79032 submitted by Meadow Corporation for site and building plan approval and preliminary plat approval for Plat 5 of The Ponds townhouse development. The Secretary explained the proposed plat under Application No. 79032 consisted of all of Outlots E and H and part of Outlots A and F of The Ponds located at approximately what will be known as 72nd Circle and Unity Avenue North. The plat, he said, would create 76 lots, 72 of which would be for dwelling units, 3 of which would be for common areas and an outlot for a private roadway to be known as 72nd Circle. The Secretary noted the landscape treatment proposed on the site and building plan and indicated that the plans seem to be consistent with the overall master plan for the development area. The Secretary also added that there would be fencing required between Rl and R3 districts to the east of the site. Mr. Dietrich acknowledged that 640 feet of fencing was planned for this phase of The Ponds. PUBLIC HEARING Chairman Pierce opened the meeting for a public hearing. Noting that no residents from the area were present to speak to the proposal , he called for a motion to close the public hearing. CLOSE PUBLIC HEARING Motion by Commissioner Lucht seconded by Commissioner Theis to close the public hearing. Voting in favor: Chairman Pierce, Commissioners Malecki , Theis, Hawes, Lucht and Erickson. Voting against: none. The motion passed. The Secretary asked the applicant about the progress in selling existing lots. Mr. Dietrich replied that 106 of the 136 lots developed to date are sold. There was a brief discussion on the status of construction approved to date. Chairman Pierce inquired whether any of the units constructed would be for rent. Mr. Dietrich explained that Phase 7 and 3 of The Ponds would be for rent, although the units would be platted in the samefashion -as condominiums.. 6-14-79 -11- The Superintendent of Engineering pointed out the existence of an 3 inch water main through the common area on the east side of the plat, but added that no problems existed with the easement. ACTION RECOMMENDING APPROVAL OF APPLICATION NO. 79031 (Meadow Cor oratio n Motion by Commissioner Malecki seconded by Commissioner Theis to recommend . approval for Application No. 79031 (site and building plan) for The Ponds Plat 5 as submitted by the applicant subject to the following conditions: 1 . The 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 approval by the City Engineer prior to the issuance of permits. 3. A Performance Agreement and supporting financial guarantee (in an amount to be determined by the City Manager) shall be submitted to assure completion of approved site improvements. 4. Development of this portion of the overall development shall also be subject to applicable conditions of the original development approval by the City Council under Application No. 76041 including fencing along the R1 (single family residential ) zoning district boundary. 5. Viable turf, such as sod or seed, shall be provided for all open spaces in accordance with approval by the City. Voting in favor: Chairman Pierce, Commissioners Malecki , Theis, Hawes Lucht and Erickson. Voting against: none. The motion passed. ACTION RECOMMENDING APPROVAL OF APPLICATION NO. 79032 Meadow Corporation Motion by Commissioner Lucht seconded by Commissioner Malecki to recommend approval of Application No. 79032 (preliminary plat) for The Ponds Plat 5 subject to the following conditions: - 1 . The final plat is subject to review by the City Engineer. 2. The final plat is subject to the requirements of Chapter 15 of the City Ordinances. 3. The final plat shall indicate necessary drainage, utility and walkway easements on the easterly portion of the site. APPLICATION NO. 79033 (Dayton Development CompanyZ The Secretary introduced the next item for consideration, preliminary plat approval for Dayton Development Company to subdivide a ten acre parcel known as Tract A, R.L.S. 1262, into Lots 1 and 2, Block 1 , Brookdale Second Addition. The Secretary pointed out the parcel is bounded on the west by Brooklyn Boulevard, on the south by County Road 10• and Northway Drive, on the east by Xerxes Avenue North and on the north by single family residential property. He explained that the effect of the plat would be to create an approximate 2.5 acre parcel on the easterly portion of this site abutting Xerxes Avenue (North and Northway Drive and an approximate 7.5 acre parcel abutting Brooklyn Boulevard, County Road 10 and Northway Drive. The Secretary also commented that a bank is proposing to develop the easterly 2.5 acres. He indicated that certain corrections to the plat requested by staff had been submitted by the applicant on the day of the meeting. 6-14-79 -12- Chairman Pierce called on the applicant to speak on behalf of the proposal . The applicant's representative, Mr. Emmett Alberghotti, stated that his company was considering making the division of the land along an easement to the west of the line presently proposed for property division. Chairman Pierce asked whether parking would be allowed on the easement. The Secretary indicated that parking would be allowed, but not buildings. In answer to Chairman Pierce, the Superintendent of Engineering stated that if a different boundary line were proposed, the plat would have to be revised prior to final plat approval . Mr. Alberghotti stated that he had no objection to this procedure. Commissioner Theis inquired whether the bank would have use for the additional. land if the property line were moved to the easement line. Mr. Alberghotti admitted that the bank did not have any interest in the extra land. CLOSE PUBLIC HEARING Motion by Commissioner Theis seconded by Commissioner Erickson to close the public hearing. Voting in favor: Chairman Pierce, Commissioners Malecki , Theis, Hawes, Lucht and Erickson. Voting aginst: none. The motion passed. ACTION RECOMMENDING APPROVAL OF APPLICATION NO. 79033 (Dayton Development Company) Motion by Commissioner Hawes seconded by Commissioner Theis to recommend approval of Application No. 79033, preliminary plat approval of Brookdale Second Addition subject to the following conditions: 1 . The final plat is subject to review by the City Engineer. 2. The final plat is subject to the requirements of Chapter 15 of the City Ordinances. Voting in favor: Chairman Pierce, Commissioners Malecki , Theis, Hawes, Lucht and Erickson. Voting against: none. The motion passed. The Superintendent of Engineering left the table at 12:12 a.m. and returned at 12:23 a.m. BOARD OF ADJUSTMENTS AND APPEALS APPLICATION NO. 79036 James Talmage) The first item of consideration for the Planning Commission as the Board of Adjustment and Appeals was an appeal by Mr. James Talmage seeking reversal of an administrative ruling concerning the use of a vacant nonconforming single family home at 5000 France Avenue North. The Secretary explained that Mr. Talmage is seeking to obtain a Rental Dwelling License for the property in order to use the home for single family dwelling purposes. The property, he noted, is zoned R4 in which single family homes are not permitted. The Secretary went on to explain that according to Section 35-111 of the City Ordinances, a nonconforming use which ceases for two years cannot be resumed. City records indicate, he said, that the home has not been occupied since before January 1977 and that he has, therefore, refused to accept the owner's application for a Rental Dwelling License. The Secretary indicated that the applicant had purchased the property for the purpose of constructing a parking lot accessory to the industrial use which he operates across the street. This is also a nonpermitted use in the R4 district. He noted the applicant's contention that the circumstances surrounding the non- use of the property over the past two years are unusual since during that time he had several discussions with members of the City staff regarding the possible use of the property for a parking lot. He added, however, that the former City Manager and former Director of Planning and Inspection had communicated many times to the applicant, both in writing and at various meetings, the unlikelihood 6-14-79 -13- of using the property for a parking lot. Those communications also urged the applicant to make the premises fit for use as a single family residence. The Secretary also raised the issue of zoning, and noted that no more than three R4 type units could be placed on the parcel in question with a variance. He pointed out that a rezoning to Rl or R2 of the parcel would make the appeal unnecessary. The Secretary asked the Commission, however, to rule strictly on the appeal and stated that if the Commission were to overturn the ruling concerning the status of the nonconforming use, it must note the unique circumstances surrounding the° case and must determine that there is reason for a contrary ruling. Chairman Pierce asked whether the residence had been inspected for a Rental Dwelling License. Building Official Will Dahn answered that it had not. Chair- man Pierce and Commissioner Theis inquired about the surrounding land uses. The Secretary indicated a four plex existed on the parcel to the east and single family homes were located north of the parcel . He explained that the R4 zoning of the parcel was clearly to establish a buffer between the industrial use to the south and the single family residential use to the north. Chairman Pierce recognized the applicant. Mr. Talmage explained that he had intended to use the land for a parking lot and did not rent the house on the parcel because he was pursuing this option. This attempt went on for two years, he explained, and now that the use for parking had been clearly ruled out, he wished to rent out the existing home. While the ruling is technically correct, he admitted, there seemed to be unique circumstances which justify his appeal . Chairman Pierce stated that the purpose of the nonconforming use classification is to phase out uses that are incompatible. Mr. Talmage answered that to deny the appeal would deny him the use of the property. Chairman Pierce noted on the other hand, that to repair the property for rental would extend the life of a nonconforming use. The Commission then discussed the possibility of rezoning the parcel to R2. Chairman Pierce asked whether rezoning the parcel to R2 would affect the structural conformity of Mikros Engineering across the street as to setback. Mr. Talmage answered that Mikros Engineering would meet that setback require- ment. Commissioner Lucht asked whether rezoning such a small parcel of land would constitute spot zoning. The Secretary explained that spot zoning does not necessarily relate to the size of the parcel . He added that spot zoning is a zoning that is inconsistent with the City's Comprehensive Plan. Regarding the buffer purpose of the present R4 zoning, Mr. Talmage stated that he could not understand how an apartment would be a better buffer than a single family home. Commissioner Theis explained that the nonconforming single family home at 5000 France Avenue North would be left without a buffer. Commissioner Lucht argued that to allow the house to continue its use on the property would defeat the purpose of phasing out nonconforming uses. He maintained that the two year vacancy under the ordinance is the same as 60% destruction. The Commission briefly discussed the option of down zoning the property to R2. Mr. Talmage opposed this course. ACTION RECOMMENDING DENIAL OF APPLICATION NO. 79036 James Talmage) Motion by Commissioner Lucht seconded by Commissioner Theis to deny the appeal of James Talmage and to uphold the administrative ruling by the Director of Planning and Inspections relative to his use of the nonconforming structure at 5000 France Avenue North. Voting in favor: Chairman Pierce, Commissioners Malecki , Theis, Hawes, Lucht and Erickson. Voting against: none. The motion passed. 6-14-79 -14- APPLICATION N0. 79037 (Howe, Inc. The last item oconsideration was an appeal by Howe, Inc. to reverse an admini- strative determination by the Director of Planning and Inspection regarding the application of current Zoning Ordinance requirements to the reconstruction of the building destroyed by fire on January 6, 1979 at the Howe Fertilizer property. The Secretary outlined the history of past applications by Howe, Inc. to rebuild the warehouse which was destroyed by fire earlier in the year. The City Council , on May 14, 1979, had concurred with the Planning Commission and made certain findings of fact which would allow Howe Fertilizer to rebuild the north building on their property. A site and building plan proposal (Application No. 79016 and a variance (Application No. 79017, which the Commission recommended denying, had been withdrawn by the applicant also on May 14, 1979 with the indication that new site plans would be submitted. The Secretary stated that he had dis- cussed the action taken by the City Council and direction given for further review of the plans with the applicant's representatives and in a letter dated May 17, 1979, conveyed the procedures and requirements for that review. A re- vised plan was submitted and a meeting with the applicant was held at which time it was again indicated to the applicant that current ordinance provisions relating to setback requirements landscaping, parking, drainage, and other matters would be applied, perhaps not in their entirety, but at least to the area proposed for the reconstruction. The Secretary stated that it was pointed out to the applicant that based on design, a building similar in size (both square footage and cubic footage) and functional ability could be provided while meeting ordinance requirements for setbacks, buffers, and some landscaping. It was also indicated that the traffic circulation could be continued around and through the site although somewhat modified and that the application of the current Zoning Ordinance requirements was not unreasonable. The Secretary noted that at that meeting he was furnished with a copy of a letter from Donald D. Notvik of the State Attorney General 's office regarding the high- way property at 49th and Brooklyn Boulevard which could change the interpretation for requiring a 50 ft. building setback. In light of the letter, the Secretary said that he had informed the applicant that a 10 ft. building setback from the highway property might be appropriate. The Secretary explained that the revisons requested on the Howe site plan would have applied the current ordinance provisions to the area immediately north of the middle building, to provide additional parking on the site, and to address the need for correcting drainage problems. He maintained that the revisions would not cause a major change in traffic patterns and would provide a 100 ft. buffer and landscaped area north of the middle building between the reconstructed building and the single family residential property lying to the west. The Secretary stated that when asked by Mr. Howe's attorney if he would accept a plan that did not meet with the requested revisions, he responded that he would only if a variance application was submitted concurrently with a written indication as to how the ordinance variance standards were met. If this was not submitted, he would not place the matter before the Planning Commission because they would be reviewing a plan that did not meet current ordinance re- quirements. Mr. Russell 's response, the Secretary said, was that because Howe Inc. is nonconforming as to use and structure, the Zoning Ordinance requirements adopted after the structure was built cannot be applied and no variances can be required. He based this argument on his memo to the Secretary on May 25, 1979 6-14-79 -15- The Secretary explained that based on the direction received previously from the Planning Commission in its review of the Howe site plan and past precedent where the City has required compliance with current Zoning Ordinance standards when major structural alterations were undertaken that he was prepared to only accept a plan showing that the requirements were met or a variance from these requirements was being sought. The Secretary reported that he had informed . Mr. Howe's attorney that the City Attorney had reviewed his May 25, 1979 memo and had advised him that he was proceeding properly. The applicant was then advised of his right to appeal the administrative ruling. In a notice of appeal dated June 4, 1979, Howe, Inc. appealed the administrative determination using the May 25, 1979 memo from Mr. Russell as their basis of appeal . The Secretary next reviewed a memo from City Attorney Richard Schieffer. He stated that the City Attorney's opinion indicates, that the application of certain ordinance requirements regarding setback, landscaping, buffering, parking and other matters, result in no significant loss of investment and that a build- ing of the same size and general configuration can be built on the site while adhering to buffer and setback requirements. The City Attorney adds that there is no unconstitutional taking of property rights without compensation. There- fore, the basis for justification for permitting the building to be erected in violation of these requirements does not exist. It is also the City Attorney's opinion, he said, that it must be recognized that nonconforming use provisions simply do not provide the property owner with the justification to ignor all regulations which have come into being after 1957. Only those regulations which deprive the property owner of a substantial investment must be relaxed, he said. After certain clarifications, the Chairman called on the applicant to speak on behalf of his appeal . Mr. Russell briefly reviewed past decisions on Howe, Inc . 's application to rebuild their warehouse. He cited three basic objections to rebuilding posed by the City: 1 . The site is an illegal nonconforming use. 2. The residential area should be rounded out according to the Comprehensive Plan. 3. All current zoning regulations apply after the fire. The first two objections had been dealt with under the last application, he said. He argued that the third objection is equally faulty. He framed the question as whether Howe, Inc. can exist as it did before the fire. This, he said, is a constitutional right. The State cannot deprive a person of property without due process of law, he said. He cited the case of Connor vs . Township of Chanhassen in which the court ruled the plaintiffs had a vested right to operate their business. Mr. Russell stated that for the City to pass an ordinance that allows a 0 setback (as in the 1950 Ordinance) and then to pass an ordinance that requires a 100 ft. setback amounts to a ,taking of property if the latter ordinance provision is enforced. He pointed out to the Commission the portion of Section 35-111 which states: "the lawful use of any land or building existing at the time of adoption of this ordinance even if such use does not conform to the regulation of this ordinance." Mr. Russell argued that if the City were not in a position to apply the zoning regulations to the Howe property before the fire, they certairaly cannot apply those regulations after the fire. 6-14-79 -16- The only conclusion which can be drawn from a literal reading of the ordinance, he said, is that the building should be rebuilt in precisely the same place as the previous building. In response to Commissioner Theis, Mr. Russell stated that Howe, Inc. was willing to accept the requirements of the Building Code which have been added since 1957 for safety reasons. Commissioner Theis noted that' the setback requirements which have been instituted since 1957 also serve a safety function. Mr. Russell disagreed. Commissioner Erickson pointed out that the plan submitted by the applicant was not in fact identical to the old building, but amounted to an expansion. Mr. Russell conceded that there had been give and take on that question. Chairman Pierce stated that any imposition of the current ordinance requirements which would deny Howe, Inc. the use of its property should be rectified by a variance procedure. Mr. Russell denied the need for a variance. Chairman Pierce and Mr. Russell discussed the intent of Section 35-111 . Mr. Russell argued that it allows nonconforming uses to continue without conforming to ordinance requirements. Chairman Pierce stated that it allows nonconforming uses to continue, but that it does not exempt them from ordinance requirements when they can be applied. In response to Chairman Pierce, Mr. Russell argued that the City's position that Howe, Inc . must give up land for buffer and setback purposes is a taking of property which both the City's Ordinance and the Constitution .forbid. In response to a question from Commissioner Theis, Mr. Russell stated that the applicant only sought an exemption from the zoning requirements of the City Ordinances, not the Building Code. Chairman Pierce stated that according to his reading of the ordinance, noncon- forming uses are entitled to keep what they have at the time they become noncon- forming, but it does not exempt nonconforming uses from current construction requirements when building or adding on to a structure. The Secretary took issue with previous statements made by Mr. Russell implying that the City had been unreasonable and one-sided in its review of the rebuilding of the destroyed building. He stated that the City had looked carefully at a very complex issue and had taken into consideration all of the arguements made both for and-against the rebuilding before making a finding that a structure could be rebuilt. He added that the minutes of past meetings indicate that the Planning Commission has given clear direction that they expect the current standards to be applied in the review of a site Man. He cited examples of other nonconforming situations which, when additions or alterations were under- taken, -had to meet current ordinance requirements. He pointed out that he felt Section 35-111 did not prohibit the application of current Zoning Ordinance Standards in a situation such as this where a building was totally destroyed and the requirements could be reasonably applied. ACTION RECOMMENDING DENIAL-OF APPLICATION 110. 79037 (Howe, Inc.) Following further discussion there was a motion by Commissioner Erickson seconded by commissioner Malecki to deny the appeal of Howe, Inc. and uphold the ruling of the Director of Planning and Inspection that the current Zoning Ordinance re- quirements are applicable to the reconstruction of the building destroyed by fire and that a plan will not be accepted for review unless the requirements are met or a variance is sought. Voting in favor: Chairman Pierce, Commissioners Malecki , Theis, Hawes, Lucht and Erickson. Voting against: none. The motion passed. 6-14-79 -17- DISCUSSION ITEMS The Secretary reminded the Commission that two rezoning applications are out- standing and that due to the number of business items being received it would be well to consider these at the study meeting on June 28, 1979. Commissioners Theis and Hawes indicated that the neighborhood meetings have taken place to consider the rezonings and that minutes of those meetings would be submitted soon. The Secretary also stated that rezonings are not a matter of a vote, but of the guidelines in Section 35-208. Neighborhood Advisory Group meetings give an indication, he said, but they are not binding. He added that the Planning Commission has no obligation to concur with the advice of the Neighbor- hood Groups. ADJOURNMENT Motion by Commissioner Erickson seconded by Commissioner Lucht to adjourn the meeting of the Planning Commission. Voting in favor: Chairman Pierce, Commis- sioners Malecki , Theis, Hawes, Lucht and Erickson. Voting against: none. The motion passed. The Planning Commission adjourned at 2:06 a.m. Cha i rma n 6-14-79 -18-