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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 2 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. 3 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 4 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, 5 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 6 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. 7 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 8 Planning Commission Meeting August 4, 2010