080410 planning commission
CITY OF NEW HOPE
4401 XYLON AVENUE NORTH
NEW HOPE, HENNEPIN COUNTY, MINNESOTA 55428
PLANNING COMMISSION MINUTES August 4, 2010
City Hall, 7 p.m.
CALL TO ORDER The New Hope Planning Commission met in regular session pursuant to
due call and notice thereof; Chair Houle called the meeting to order at 7
p.m.
ROLL CALL Present: Paul Anderson, Jim Brinkman, Pat Crough, Jeff Houle,
Sandra Hunten, Kimberly Johnson, Roger Landy, Sunday
Onadipe (arrived 7:02 p.m.)
Absent: Ranjan Nirgudé, Tom Schmidt, Steve Svendsen
Also Present: Curtis Jacobsen, Director of Community Development,
Steve Sondrall, City Attorney, Pamela Sylvester, Recording
Secretary
CONSENT BUSINESS There was no Consent Business on the agenda.
NEW BUSINESS
Item 4.1 Chair Houle introduced Item 4.1, Review city attorney memo related to
State Supreme Court case on granting variances.
Mr. Curtis Jacobsen stated that the Supreme Court recently ruled on a
variance case in Minnetonka that had changed the way cities must review
variances in the foreseeable future. The Legislature may change the state
statute to make it easier for cities to grant variances again or the city
could make changes to the code to accommodate these types of requests.
Mr. Steve Sondrall, city attorney, stated that the Supreme Court decision
of Krummenacher versus city of Minnetonka concluded that cities would
need to apply the strict definition of undue hardship as that definition is
laid out in Minnesota Statutes §462.357. The definition is very strict and
very narrow and the property owner must show no reasonable use of the
property absent the variance. Without the property owner able to
demonstrate no reasonable use, the city is not able to grant a variance. It
becomes extremely problematic for cities considering variance requests
because most requests the city receives are for condition variances where
a variance from the setback is requested. It is difficult for the property
owner to prove undue hardship when the property is already being used
for something reasonable. The Supreme Court indicated that the
Legislature would need to correct this decision legislatively and give cities
the same kind of discretion and leeway that counties have to vary county
ordinances. Mr. Sondrall added that there were no ordinances in
Hennepin County that dealt with zoning. All the variance requests are
subject to municipal ordinances. This law became effective June 24, 2010.
All of the variances granted prior to that time have become legal non-
conforming uses and cannot be expanded, only maintained. For the
future, the city must be very specific and very detailed in the findings of
fact as to why the city was granting the variance and why the property
could not be put to a reasonable use unless the city granted the variance.
Chair Houle wondered what ramifications there would be if the city
continued granting variances. Mr. Sondrall indicated that the city’s
decision could be overturned, and if challenged, the property owner may
have to change back to the original setting.
Mr. Jacobsen stated that the issue for New Hope and other cities in
Minnesota was that if a variance was granted and anyone in the state
challenged the granting, the city would have to defend it. Mr. Sondrall
interjected that all commissioners have taken an oath to uphold the laws
of the state of Minnesota; therefore, the city could not blatantly violate
something it knows is wrong.
Mr. Jacobsen stated he participates on a committee at the League of
Minnesota Cities that would be discussing this issue later in August and
would determine the League’s position and the position it would lobby.
The League would try to correct this ruling and bring back the standard
cities have been using for the last 20 years. The ruling was announced on
July 27 to city officials. Mr. Sondrall commented that all Supreme Court
decisions become the law of the state of Minnesota and carries legal
precedent and must be followed.
Discussion ensued on whether or not the city should review the city code
and make recommendations on revisions to sections where variances are
typically requested and granted. Variance requests currently are
considered on a case-by-case basis with the majority of the requests
granted. However, if the city determines there are several of the same
type of request, it may be better to amend the city code to allow that
particular use. The city attorney indicated the city may want to consider
allowing some uses through a conditional use permit, which follows the
land. Without changing the code, variance requests could not be
approved under a conditional use permit.
Mr. Jacobsen pointed out that it would take a minimum of six months for
the city to review the entire zoning code. The Legislature would be back
in session and may amend the decision before the city could complete its
review.
Chair Houle questioned if the planning fees for a variance would need to
be raised due to the detail required in the planning report and legal
findings. The city attorney stated that the court’s decision has made it
nearly impossible for any developed city like New Hope to grant
variances. Residents could possibly request a text amendment to the
zoning code.
Chair Houle wondered if staff had determined how cities should
approach this issue, such as rewrite the zoning code or wait to see what
the Legislature does next year. Mr. Jacobsen stated that the Council and
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Planning Commission Meeting August 4, 2010
staff wanted input from the Planning Commission. He added that the city
could be proactive and begin reviewing the ordinances section by section.
Commissioner Landy recommended that the city wait to see what the
Legislature would do and then the city could determine its next steps. Mr.
Jacobsen added that when the League publishes its lobbying points on
this issue, copies could be provided to the Planning Commission and City
Council so council members and commissioners can talk to local
legislators about the effects on fully developed cities. Commissioner
Anderson interjected that residents would have to wait on any variance
requests for nearly a year before a decision can be made.
Chair Houle stated he did not disagree with Commissioner Landy’s
suggestion to wait for the Legislature’s decision, but also understood that
residents would need to wait a long time. Discussion ensued on the text
amendment approach. Mr. Sondrall explained that a piecemeal approach
may not be the ideal way to handle changes to the zoning code. It would
be best to wait for the Legislature to change the definition of undue
hardship similar to the definition counties utilize, which would give the
city a lot more discretion.
The Commission discussed the possibility of utilizing the conditional use
permit process to allow some of the typical variance requests. Mr.
Jacobsen stated that the current verbiage in the code for CUPs is laid out
with specific conditions that have to be met. There currently is no
language in the zoning code to utilize the CUP process for driveways,
setbacks, et cetera.
Chair Houle suggested the city wait to see what the League of Minnesota
Cities decides. He stated he was not sure the city should do a complete
review of the zoning code to change CUP requirements.
Mr. Jacobsen reported that after cities update their Comprehensive Plans
the zoning code is reviewed to be certain that the two documents are in
agreement. This review takes a great deal of time and money. The city did
not budget funds for this review in 2010. The Council would need to add
funds to the 2011 budget if wanted staff and the planning consultant to
begin reviewing the zoning code. Mr. Sondrall suggested that in the
meantime the city could review the variance section of the code for
residential properties, which would still be time intensive.
Mr. Jacobsen stated that the League’s position would be published by
mid-October and staff would provide the information to the Commission.
Chair Houle suggested whenever staff begins a review of the code the
residential sections should be studied first.
Motion to Approve Motion by Commissioner Landy, seconded by Commissioner Brinkman,
Minutes to approve the Planning Commission minutes of July 6, 2010. All voted
Item 4.2 in favor. Motion carried.
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Planning Commission Meeting August 4, 2010
PUBLIC HEARING
PC10-03 Chair Houle introduced Item 5.1, Request for a variance to expand
driveway at the curb, 3812 Boone Avenue North, Jon Hansen, petitioner.
Item 5.1
Mr. Jacobsen stated the applicant was requesting a variance to allow two
seven foot extensions to his 24-foot wide driveway, which would make
his driveway 38 feet wide from the garage to the street. City code allows a
28-foot driveway width for a three-car garage. The property is a corner lot
located at the northeast quadrant of Boone Avenue and Boone Circle. The
property is surrounded by single family homes to the north and east and
Northwood Park to the south and west. The total site contains 12,400
square feet and the building is 2,375 square feet. Lot ratios include
approximately 20 percent building area, 6 percent paved area, and 73
percent green area.
The property owner indicated on the application he had lived at the site
for many years. In 2001, the owner made major modifications to the
property, including a 3 1/2 car garage, and changed the driveway access
from Boone Avenue to Boone Circle. With the driveway change he had
requested a 26-foot curb cut, but only installed a 24-foot width. The
petitioner indicated he was requesting a variance due to the fact that the
driveway is short and steep. Reasons he considered as hardship include:
cars scrape when backing straight out, backing out with other cars in the
driveway is difficult, and the street is crowned higher than a normal
street.
Mr. Jacobsen stated that all setbacks on the property for building
placement are compliant. The curb is surmountable and there is no
sidewalk on Boone Circle. There are three parking stalls in the garage and
possibly five or six in the driveway. Drainage off the driveway and Boone
Circle is surface drainage along the curb line. Most properties in the
neighborhood have two-car garages and driveways of similar width.
Mr. Jacobsen explained that the applicant has a large family with many
drivers. The driveway was somewhat steep and low profile vehicles drag
if they enter or exit in a straight line. The property owner created the
current issue during the remodeling project in 2001.
Mr. Jacobsen explained the current city code hardship criteria, which
does not apply any longer, due to the Minnesota Supreme Court decision
as previously discussed.
The lot’s location and configuration are both fairly standard for New
Hope. The lot is located at the corner of one major street and a low traffic
cul-de-sac and the driveway is off the low flow street. The property slopes
south to Boone Circle.
Mr. Jacobsen reported that staff did not feel there was anything in the
location, configuration or physical conditions of the lot that set it apart
from other properties in the city. The only hardship or circumstance
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Planning Commission Meeting August 4, 2010
unique to this property was created by the property owner during the last
remodeling project where the driveway was shifted from the west to the
south side of the lot.
Property owners within 350 feet of the parcel were notified and legal
notice was published in the city’s official newspaper. Written letters of
support were received from neighboring property owners.
Mr. Jacobsen summarized that the property owner submitted a variance
application to increase the size of his driveway from 24 feet to 38 feet. City
code allows a 28-foot driveway for a three-car garage. The applicant
previously received approval for a 26-foot wide driveway.
Mr. Jacobsen stated that the Design and Review Committee and staff do
not believe the applicant met the standard for hardship and recommend
the application be denied.
Mr. Jon Hansen, 3812 Boone Avenue, came forward to address the
Commission. Mr. Hansen handed out a letter from an adjacent property
owner in support of the request. He also provided photos of wider than
normal driveways in the city.
Mr. Hansen explained that when he installed the additional concrete area
on the left side of the driveway he read the code, which talked about a
curb cut, and he thought that as long as he was not doing anything with
the curb he was not doing anything wrong. He explained that, due to the
short driveway and the slope, it was difficult to back out and not scrape
vehicles on the driveway. He added that Boone Circle crowns at the
center of the street due to drainage. Mr. Hansen stated he wanted to
expand the driveway on both sides to the width of the garage to alleviate
problems going in and out.
Chair Houle pointed out that the onerous is on the property owner to
show no reasonable use of the property without the variance. Mr. Hansen
stated he felt reasonable use was destroying the front end of the vehicles
by scraping on the driveway. He added that it was even more difficult to
back out if another vehicle was parked in the driveway. In answer to a
question, Mr. Hansen stated that it was his choice to move the driveway
from Boone Avenue to Boone Circle. Commissioner Anderson pointed
out that per city code he could have a 28-foot wide driveway at the curb,
and with the Supreme Court ruling that was discussed earlier, the
Planning Commission could not recommend approval.
Commissioner Anderson initiated discussion on whether the applicant
could utilize gravel at the edges of the driveway for additional driving
surface. It was determined that some landscape products would be
appropriate to drive over and could be used in the manner the applicant
was proposing. The Design and Review Committee suggested this as an
alternative to eliminate the need for a variance. The landscape feature
would have to be of a different material than the driveway. For example,
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Planning Commission Meeting August 4, 2010
if the applicant had a paver driveway, pavers could not be utilized to
enlarge the area because it would be the same material. Mr. Hansen
commented that a former inspector had told him that pavers would not
hold in that location due to the clay in the yard and high water table
elevation. Anderson reminded the petitioner that the Design and Review
Committee was not supportive of the request even before knowing about
the Supreme Court ruling.
Mr. Hansen pointed out that the code does not talk about driveway width
at the street, but defines specific widths for the curb cut. He stated that, in
his interpretation, he was not cutting the curb, which is why he added
concrete on the left side a few years ago. Commissioner Crough stated
that the city has been consistent with that verbiage when speaking of the
end of the driveway at the street. Mr. Hansen initiated discussion on the
photos he provided of 30-plus foot driveways. Staff pointed out that those
driveways may have requested variances or were installed during a time
when the city did not require driveway permits. The city began issuing
permits for driveways again due to many driveways being installed
incorrectly.
Commissioner Onadipe pointed out that a typical parking stall is nine feet
wide and a 28-foot driveway would allow three cars to be parked in it and
give ample room to drive in and out. Mr. Hansen responded that he felt
widening the driveway would eliminate driving over the grass and
improve to look of the property.
Chair Houle stated that the Planning Commission and City Council were
in a difficult position based on the ruling by the State Supreme Court.
Whether the Commission would agree or disagree with the application, it
could not recommend approval of the variance request. Mr. Hansen
maintained the code could be interpreted differently based on how it is
written.
Mr. Sondrall stated that the applicant was talking about the surmountable
curb found throughout the city. Some residents have flattened out the
curb for their driveways during street projects. The city has always
interpreted the curb cut to mean that distance at the curb line that is
allowable for a driveway entrance whether the resident has a
surmountable curb or have had the curb lowered. Sondrall stated there
was no technicality in the application of how the city has applied the
code.
Mr. Hansen stated that the Supreme Court ruling was a bias to sway the
Commission’s decision. Chair Houle reminded the applicant that staff
had discussed the viability of this request with him and urged him to
reconsider. Mr. Sondrall commented that under the old definition of
practical difficulties, one could argue that there is a hardship, but under
the new definition, there is a reasonable use of the property and can be
used reasonably without the variance. Under the strict and narrow
definition the city is now subjected to, this variance request could not be
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Planning Commission Meeting August 4, 2010
approved. Mr. Sondrall suggested the applicant wait to see what the
legislative response would be and, if the decision was reversed, to reapply
for the variance.
There was no one in the audience to address the Commission.
Commissioner Brinkman commended the applicant on his 19 years living
adjacent to Northwood Park and the Duk Duk Daze celebration.
Motion by Commissioner Landy, seconded by Commissioner Crough, to
close the public hearing on Planning Case 10-03. All voted in favor.
Motion carried.
Mr. Hansen questioned the next step with regard to the application. Mr.
Jacobsen stated that application could be extended for 60 days or an
applicant could waive the 60-day rule, which would allow the city to hold
the application until such time as the Legislature made a decision on the
ruling. Chair Houle suggested the applicant withdraw the application
and have the city refund the fee. Mr. Jacobsen reminded the Commission
that the city has had expenses related to this planning case, such as the
public hearing notice. He recommended the applicant send written notice
to the city explaining what he wanted to do and to request a refund less
expenses incurred by the city. The enforcement issue would be reviewed
by the inspection’s staff.
Mr. Sondrall recommended that the Commission postpone action until
staff received a letter from the petitioner requesting the application be
withdrawn.
MOTION Motion by Commissioner Anderson, seconded by Commissioner
Item 5.1 Brinkman, to postpone Planning Case 10-03 to the next Planning
Commission meeting, request for a variance to expand driveway at the
curb, 3812 Boone Avenue North, Jon Hansen, petitioner.
Voting in favor: Anderson, Brinkman, Crough, Houle, Hunten, Johnson,
Landy, Onadipe
Voting against: None
Absent: Nirgudé, Schmidt, Svendsen
Motion approved.
Chair Houle stated Mr. Hansen could contact city staff periodically
regarding an update of action by the Legislature. The League of
Minnesota Cities website would also have updates regarding this issue.
Mr. Sondrall stated that every variance request was fact specific. When
the city grants variances, a precedent is not set because of the variance
request. If the Council is routinely granting variances for the same type of
request, then the city should look at revising the code. Mr. Jacobsen
stated the city would probably wait to see what the League’s position
would be on the issue and then determine how it should proceed.
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Planning Commission Meeting August 4, 2010
A question was raised on whether or not the city would be reviewing past
variance requests. Mr. Jacobsen responded that over the past several
years, the city code had been modified so some of the past variance
requests may have been granted under previous codes.
COMMITTEE
REPORTS
Design and Review Chair Houle stated that the Design and Review Committee met with the
petitioner in July. No new applications are anticipated to warrant a
Committee
September Planning Commission meeting. District 287 anticipates
Item 6.1
submitting its application for a conditional use permit amendment and
site plan review in September for the October Commission meeting.
Codes and Standards Chair Houle reported that the Codes and Standards Committee did not
meet in July.
Committee
Item 6.2
Project Advisory There was no report from the Project Advisory Committee.
Committee (TOD
Study)
Item 6.3
OLD BUSINESS There was no old business.
Miscellaneous Issues
ANNOUNCEMENTS Chair Houle reported that a joint meeting with the City Council was
scheduled for Wednesday, August 11, to discuss the Transit Oriented
Development study. A suggestion was made to send an agenda packet
prior to the meeting.
A joint meeting with the Citizen Advisory Commission was scheduled for
September 14, to discuss tax increment financing.
The volunteer commissioner picnic will be held on September 28.
ADJOURNMENT The Planning Commission meeting was unanimously adjourned at 8:33
p.m.
Respectfully submitted,
Pamela Sylvester
Recording Secretary
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Planning Commission Meeting August 4, 2010