040604 planning
CITY OF NEW HOPE
4401 XYLON AVENUE NORTH
NEW HOPE, HENNEPIN COUNTY, MINNESOTA 55428
PLANNING COMMISSION MINUTES
CALL TO ORDER
ROLL CALL
CONSENT BUSINESS
PUBLIC HEARING
PCO4-02
Item 4.1
April 6, 2004
City Hall, 7:00 p.m.
The New Hope Planning Commission met in regular session pursuant to
due call and notice thereof; Chairman Svendsen called the meeting to
order at 7 p.m.
Anderson, Brauch, Buggy, Hemken, O'Brien, Oelkers,
Svendsen
Absent: Barrick, Landy
Also Present: Kirk McDonald, Director of Community Development, Steve
Sondrall, City Attorney, Alan Brixius, Planning Consultant,
Vince Vander Top, City Engineer, Ken Doresky, Community
Development Specialist, Amy Baldwin, Community
Department Assistant, Pamela Sylvester, Recording
Secretary
Present:
There was no Consent Business on the agenda.
Chairman Svendsen introduced for discussion Item 4.1, Request for
preliminary plat approval of Science Industry Center 3rd Addition and
site/building plan review, 8801 Science Center Drive, Science Center Drive
LLC, Petitioner.
Mr. Alan Brixius, planning consultant, stated that the petitioner was
requesting site and building plan review for an industrial site at 8801
Science Center Drive and a preliminary plat review. The subdivision of the
plat would be to create two separate parcels. The new parcel meets all I,
Industrial Zoning District qualifications with regard to lot area and lot width.
Easements would be established at the periphery of the property lines. The
plat illustrates existing easements through the property, which are
acceptable in conjunction with the improvements as proposed.
The development plan proposed the construction of a of 21 ,600 square foot
building, with 8,400 square feet of office space, 13,200 square feet of
warehouse, and 7,600 square feet of bulk equipment storage. The site plan
illustrates the proposed building area would occupy 28.2 percent of the site,
green area is 31.9 percent, and paved area is 39.9 percent of the site,
which is compliant with the 20 percent green area requirements of the I
District.
Brixius explained that the proposal had been reviewed by staff and the
Design and Review Committee. Several suggestions were made at those
meetings and revised plans were submitted as a result. The building would
be placed on the northeast corner of the new lot and meets all required
setbacks. Easements were established around the property that raised
some concerns. An existing utility easement that runs diagonally through
the site is slightly encumbered by the parking lot areas. The city engineer
reviewed that and found all manholes lie outside the improvement area
and felt that the encroachment on the easement is acceptable provided the
applicant understands that if the city needed to access that utility, the city
would have the right of access and may disrupt the parking areas. There is
a non-exclusive easement for a rail spur through the property. The rail spur
would be a property owner issue and the city would need assurances that
improvements could take place within that required easement. There is a
proposed access easement that runs through the site between Lots 1 and 2
that would provide a workable circulation pattern for all trucks. A
documented easement needs to be prepared and reviewed by the city
attorney.
Drainage improvements call for all site drainage to come across the
property into a pond on the adjoining lot. The petitioner presented a letter
prior to the start of this meeting explaining that the applicant and adjoining
property owner (Avtec Finishing Systems) had come to an agreement as
far as the placement of the pond on the property. The plan would require
review by the Shingle Creek Watershed and verification of all setbacks
from the wetland areas are required. The water service would be coming
from Science Center Drive. The sanitary sewer would come off the west
side of the building and connect with the sanitary sewer line that runs
through Lot 1. If the building would be sprinkled, a separate utility
connection would be required for fire suppression and a second line
provided for potable water.
Brixius stated that the proposed signage includes a 40 square foot
monument sign on the north side of the building, which was compliant with
the industrial district standards. No wall signage was identified on the
plans. Any wall signage would need to be compliant with the sign code. A
color rendering of the proposed building was submitted. Building materials
would consist of pre-cast concrete wall panels, standard gray finish with
two blue smooth banding strips around the building. Aluminum window
frames with insulated glass are proposed. Several suggestions were made
by staff and the Design and Review Committee including additional
landscaping to break up the building massing on the north and south
property lines, additional plantings near the back entrance, screening at
rear of the property and additional landscaping along the east building
elevation to break up the wall mass along that side. The proposed lighting
would consist of wall mounted fixtures. Fixtures should be properly hooded
and be illustrated on photometric plans. A freestanding light pole was
added in the south parking lot to provide additional lighting to the storage/
parking area, which would be fenced.
The loading areas would be at the back of the building. All are properly
dimensioned with access doors available. The circulation pattern would be
effective in conjunction with the shared access easement. All refuse and
storage would be located inside the building. The applicant was requesting
an eight-foot fence around the south area of the building to secure the
south parking and loading area. Company service vehicles would be stored
in this area. No other outdoor storage would be required. City code requires
35 stalls for this site and 53 stalls have been provided, including two ADA
stalls. The landscape plan had been adjusted to meet the
recommendations of the Design and Review Committee. The site would be
irrigated.
Brixius concluded by saying that the applicant had complied with most of
the items identified by staff and the city engineer, including the shared
access easement and ponding. Staff recommends approval subject to the
conditions in the planning report.
Commissioner Brauch questioned why waiver of the final plat review was
not mentioned in the conditions. It was noted that condition should be
added.
Mr. Vince Vander Top, city engineer, explained that the site drainage is
Planning Commission Meeting
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April 6, 2004
conveyed toward the west property line and is captured in a ditch and
routed to a pond. The pond is proposed to be constructed on adjacent
property, which is encumbered by an existing drainage and utility easement
in favor of the city. The city encouraged the applicant to locate the pond in
the proposed area. The pond would be bordered on the east side by the
sanitary sewer utility easement. VanderTop reported that he and Mr.
McDonald met with representatives of Avtec to discuss the ponding
situation. They raised some concerns with regard to liability of having
another business's pond on their property. The applicant took the initiative
to contact Avtec and the two businesses have reached an agreement that
the applicant will hold Avtec harmless of any liability of having the pond on
Avtec's property in the future. The city would approve the proposed plan.
VanderTop indicated that the applicant had included a storm sewer that
cuts through the site, per Design and Review recommendations. The larger
parcel of 8801 Science Center Drive has a drainage area which
concentrated at approximately the rear southeast corner of the new
building and crosses the new parcel's rear parking area. According to
drainage calculations, the proposed pond is not sized for the additional
drainage. Staff recommends that the drainage from the two properties be
separated. Shingle Creek Watershed recommends that the storm sewer be
eliminated and the runoff be allowed to go through the pond. Even though
the pond was not designed for that amount of water it would provide some
additional treatment for the water from the greater parcel rather than giving
a direct route for those sediments and parking lot runoff into that channel.
Chairman Svendsen confirmed that there would not be a land swap for the
ponding issues.
Commissioner Brauch wondered whether or not the applicant was
agreeable to the recommendations of the Shingle Creek Watershed with
the flow of water across their property. VanderTop indicated he felt the
applicant would be agreeable due to the fact that there would be less storm
sewer to construct and the pond maintenance would be the same either
way. He clarified that at the time of any improvements on the larger 8801
Science Center Drive property, that property owner would be required to
expand the ponding on that property and route that runoff through their
pond. This option would be acceptable to the city.
Commissioner O'Brien clarified that this was a private pond, and
VanderTop added that the standard pond maintenance agreement should
be executed.
Mr. Richard Tieva, co-owner of Northland Mechanical Contractors, came
forward and stated that the business had been in New Hope for
approximately 17 years and the proposed site would be a good move for
them. The new building would provide bulk storage inside the building so
they would not need any additional outside storage of tools and equipment.
He stated they requested a fence to secure the service trucks that
generally contain many dollars worth of tools and to reduce vandalism. Mr.
Tieva mentioned that the old railroad spur did not have an easement
attached to it, referenced on the plat as Lot 4. The permit for the storm
water pond had been submitted to the Watershed District. The easement
through the 8801 property is only an egress easement, not ingress. The
purpose of this is for easier maneuverability of the few semi trucks that
come per week. The plan is to install an electric gate at the egress location
for trucks leaving their property. The purchase agreement with the owner of
8801 Science Center Drive states that fact. The easement will be
registered separately as part of the plat.
Planning Commission Meeting
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April 6, 2004
Commissioner Anderson clarified that the outside storage would be for
service vans, semis and small trailers. There would be no additional
materials stored outside. Anderson questioned the trash storage. Mr. Tieva
responded that the dumpsters would be located inside the building. The
area at the rear of the building would be screened with a fence.
Mr. Steve Sondrall, city attorney, clarified that no outdoor storage
conditional use permit was requested, the fence was for security purposes.
Oelkers initiated discussion on the easement documents and Sondrall
indicated that the easements would not be recorded on the plat. If the
property owners have agreed between themselves on a private easement
for egress only, and if the agreement was violated, they would need to
work out the situation on their own.
There being no one in the audience to address the Commission, the public
hearing was closed.
Motion by Commissioner Brauch, seconded by Commissioner O'Brien to
close the Public Hearing on Planning Case 04-02. All voted in favor.
Motion carried.
MOTION
Item 4.1
Motion by Commissioner Anderson, seconded by Commissioner Buggy,
to approve Planning Case 04-02, Request for preliminary plat
approval for Science Industry Center 3rd Addition and site/building
plan review, 8801 Science Center Drive, Science Center Drive LLC,
Petitioner, subject to the following conditions:
1. Comply with city engineer recommendations dated 4-1-04.
2. Approval of plans by building official.
3. Approval of plans by West Metro Fire.
4. City attorney to review and comment on shared access easement
between Lot 1 and Lot 2.
5. Comply with planning consultant recommendations including:
a. Grading, drainage and utility plans are subject to the review
and approval of the city engineer.
b. Fire hydrant to be protected by bollards or other approved
method.
c. The fire department location (approved by the fire
department) shall be marked with a sign stated "No Parking
Fire Lane".
d. Indicate the location of all mechanical areas on the exterior
elevations plan.
6. Enter into development agreement with city and provide
performance bond (amount to be determined by city engineer and
building official).
7. Establishment of an agreement where Avtec provides an
easement over the pond and Northland Mechanical subsequently
provides an indemnification.
8. A sign permit and a fence permit are required.
9. Planning Commission to waive review of final plat.
A question was raised whether or not Avtec owned the property. It was
noted that the letter received concerning the easement was signed by the
attorney for Avtec Properties. Sondrall stated that both the access and
pond easements were private and the only concern that the city would
have in connection with the easement, would be the standard pond
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April 6, 2004
maintenance agreement so that if the pond was not maintained, the city
would have the right to maintain it and assess the costs back to the
property owner.
Voting in favor: Anderson, Brauch, Buggy, Hemken, Landy, O'Brien,
Oelkers, Svendsen
Voting against: None
Absent: Barrick, Landy
Motion carried.
Svendsen stated that this planning case would be considered by the City
Council on April 12 and asked the petitioners to be in attendance.
Chairman Svendsen reported that the Winnetka town home development
discussion would be tabled and discussed at a special meeting on April 20,
at 7 p.m.
PC04-04
Item 4.2
Chairman Svendsen introduced for discussion Item 4.2, Request for
preliminary plat approval of AC Carlson Addition and site/building plan
review, 8901 Bass Lake Road, AC. Carlson, Petitioner.
Mr. Ken Doresky, community development specialist, stated that the
subject property located at 8901 Bass Lake Road consisted of two lots at
the southeast corner of Bass Lake Road and International Parkway. The
property was zoned industrial, with surrounding land uses of industrial to
the east and west, medium density residential and single family residential
to the north and high density residential to the south, as well as a DNR
wetland to the south. The site area contains 128,520 square feet or 2.95
acres. The proposed green area for the site is 64,903 square feet or 50.5
percent, building area is 17,130 square feet or 13.3 percent, and paved
area is 46,267 square feet or 36 percent of the site. The Comprehensive
Plan states that the primary goal for Planning District 3 is the preservation
and enhancement of its industrial land uses and infill development of
vacant sites.
The applicant has owned the undeveloped site for several years. The site
consists of two separate parcels that would be combined on the plat. The
property is adjacent to a DNR wetland to the south. The petitioner was
requesting preliminary plat approval which would be known as the AC
Carlson Addition and site/building plan review to allow construction of the
new office/showroom/warehouse facility. No variance or conditional uses
are requested with this application.
Doresky reported that AC. Carlson was proposing a retail showroom, office
space, and warehouse space for their facility. A narrative was submitted by
the applicant which stated that they desire to upgrade their showroom and
combine it with their warehousing so everything would be at a single
location. The petitioner has been selling appliances in Crystal and New
Hope for 50 years. Property owners within 350 feet of the site were notified
and staff received no comments.
Doresky explained that excerpts from the Zoning Code with regard to
subdivision and platting and site/building plan review were included in the
planning report. The preliminary plat was submitted to department heads,
city attorney, city engineer, planning consultant, utility companies and
Hennepin County for comments. No comments were received from the
utility companies and the city attorney's comments are included in the
planning packet. The petitioner did not submit correspondence requesting
waiver of review of the final plat by the Planning Commission, therefore,
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April 6, 2004
the Commission should discuss this issue further with the applicant.
Staff and the Design and Review Committee reviewed the request and
revised plans were submitted as a result of those meetings.
Doresky reported that the current site contains two lots. The proposed plat
would create one lot and a building with 9,600 square feet of retail and
7,530 square feet of warehouse space. All setbacks are compliant with the
city code. Based on the submitted plans, 51 parking stalls are required and
are shown on the plans. Four accessible stalls, including one accessible
van space, are provided. Currently, there is a fire hydrant in the island at
the southeast corner of the parking lot. West Metro Fire is recommending
that the fire department connection be located at the south corner of the
retail portion of the building, and the curb area south of the retail facility be
posted fire lane at the south end of the retail building. Revised plans did
not account for any additional expansion. Preliminary plans did identify
future expansion to the south and east of the proposed retail and
warehouse building. The number of parking spaces that could be provided
on the site would limit future business expansion.
Access to the property would be via International Parkway. The applicant
was proposing a 28-foot curb cut onto Bass Lake Road near the east corner
of the property to accommodate truck traffic exiting the property. This
turning radius has been expanded to accommodate the truck turning
radius. The applicant would be required to complete the sidewalk along
Bass Lake Road to the west as part of this approval. The applicant
provided a truck traffic circulation plan for the property entering on
International Parkway and traveling along the rear portion of the property
and existing onto Bass Lake Road. Access off of Bass Lake Road should
be identified as a one-way exit and would be limited to truck traffic only.
Doresky explained that a fully enclosed dumpster location at the southern
portion of the building was identified. The gate materials should be
identified on the plan. An area of roughly 1,040 square feet or 17 percent of
the gross floor area was identified on the plans for outdoor storage. The
Zoning Code allows for 20 percent outdoor storage without a conditional
use permit. West Metro Fire has also requested that a sprinkler riser be
identified on the plan.
According to the City Code where an industrial use abuts a residential use,
screening shall be provided along the boundary of the property. The
applicant identified nine Black Hills spruce plantings on the southern side
of the building. The northern property line includes a mix of shrubs, trees,
perennials. The western side of the property includes a mix of ornamental
trees and shrubs. The planning consultant had recommended that
additional plantings be placed in the parking islands and this has not been
shown on the plan. An irrigation system was designed for the site and is
shown on the plan. Seeding and restoration types and methods would need
to be defined in the areas shown on the plan. A few inconsistencies
between the plan and planting schedule should be corrected.
Two wall signs and one pylon sign are proposed for the property. One
freestanding sign per property is allowed in the industrial district. The
proposed pylon sign measures 56 square feet. The proposed wall signs are
72 square feet each, which is in compliance with City Code. The wall signs
would be internally lit channel letter, plex-face. The pylon sign would be
internally lit and mounted on two painted steel columns. A 42 square foot
internally lit channel letter, plex-face identification sign would be placed in
the EIFS section on both the west and north sections of the building. The
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April 6, 2004
main entryway of the building at the west entrance would be surrounded by
glass. Cast stone base will be on each side adjacent to the entry. Face
brick would be placed upon the base up to an EIFS cornice with a pre-
finished cap flashing at the top. Four sets of windows are shown to the
south of the entryway. EIFS will continue southward over the glazing. The
lower eight feet of material would be integral color rock face block. The
remainder of the wall will be painted concrete block. Prefinished metal cap
flashing would be installed along the entire roofline. The planning
consultant recommended that the painted concrete be replaced with
colored masonry for long-term durability and upkeep.
Doresky noted that snow storage was not identified on the plan. He stated
staff felt the intention was to store snow in the ponding areas, which should
be noted on the plan. The applicant submitted a lighting plan for the
project. Fourteen fixtures would be added around the perimeter of the
building. Two back to back fixtures would be placed in the parking lot in the
middle of the islands.
Mr. Vince Vander Top, city engineer, stated that the plans for the project
were very well done and the detail was appreciated. He stated he would
comment on Hennepin County's transportation comments and the grading
plan. Neither issue should add additional conditions with the approval.
Hennepin County did not issue written comments yet for the plan. The
preliminary plat was submitted to Hennepin County, however, the county
deemed it incomplete and requested additional information in Bass Lake
Road. Specifically, the location of the median in Bass Lake Road. The city
requested the same information at the Design and Review meeting and the
applicant had indicated the location on the grading plan. The same
information needed to be shown on the plat for Hennepin County. The
county's comments should be minimal as the right-of-way is sufficient for
Bass Lake Road. Bass Lake Road was improved in the early 1990s and
those issues were addressed at that time. A driveway entrance was
constructed in the early 1990s as well. That entrance would be modified
somewhat and the applicant would be required to obtain a driveway permit
from Hennepin County. One comment that may come from Hennepin
County and would be supported by the city, would be that the Bass Lake
Road driveway be an egress only. All customers and service vehicles
would have to arrive via the signals at Bass Lake Road and International
Parkway and in the driveway from International Parkway. The median in
Bass Lake Road is configured so that there is a left turn lane. A
recommendation would be that the driveway on Bass Lake Road be signed
as egress only or do no enter. Commissioner Brauch expressed concern
that during the day traffic coming from the south to the intersection at Bass
Lake Road and International Parkway can sometimes be backed up for
several hundred feet. He wondered if that was a Hennepin County issue
and whether it would be acceptable for customers to exit the property from
the driveway on Bass Lake Road. VanderTop confirmed that would be
acceptable to the city, but could not speak for the applicant. The traffic light
sequencing was a Hennepin County issue. The traffic light situation could
encumber this property, which was the reason to move the driveway as far
south away from the light as possible. A dedicated movement for left turns
from International Parkway onto Bass Lake Road could be raised with
Hennepin County to see if the county would be agreeable to that change.
VanderTop explained that the applicant's engineer had done a good job in
showing ponding and drainage improvements per Shingle Creek
Watershed 2nd Generation Plan. The new requirements for the 2nd
Generation Plan require infiltration. Not only is ponding required, but the
Planning Commission Meeting
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April 6, 2004
first one-half inch of runoff needs to be infiltrated within 72 hours.
VanderTop stated he questioned the requirement with the Watershed on
this application, and that requirement was a goal not necessarily a
requirement, as he understood it, as it related to the city of New Hope, due
to the city's heavy, clay soils and organic soils adjacent to the wetland. The
applicant has shown a pond to the west to accept the runoff from the
parking lot west of the building and a pond to the south accepting runoff
from the rest of the property. The outlet from the west pond is to be routed
through the site in a storm sewer to the pond on the south. The overflow
from the south pond flows into the infiltration basin. A large amount of the
property is encumbered by ponding areas. The applicant submitted a
wetland delineation plan, which was reviewed by the city. In the past, the
city had completed a wetland delineation on this property. VanderTop
showed a map of the two delineation lines and stated that the city's was
preferred due to the fact that the applicant's delineation was completed in
winter, which was not the preferred time. He continued by saying that the
infiltration and improvements are not to encroach onto the wetland.
The city would recommend that the applicant redo the grading plan so that
the infiltration area be eliminated or minimized. The ponding area could be
reconfigured to further enhance the property from a use and grading
standpoint that the pipe through the site be eliminated and that the
discharge from the west pond be routed directly to a storm sewer
constructed on the western portion of the site to the wetland. If required,
some mitigation or filtration strips at the outlets of the ponds could be
added to enhance the improvement and still meet the requirements of the
watershed.
A second change to the grading plan has been discussed, whereby it may
be feasible to eliminate a portion of the retaining wall and allow some
grading to cross the property line onto city property. This would minimize
the cost of the retaining wall and the long-term maintenance of it. This
would be a partnership between the applicant and the city. If there would
be any impacts to the city property and the wetland, how would it be
mitigated and how would restoration occur. VanderTop stated that the
Planning Commission should be aware of those changes. The request
could be approved with the understanding the plans would be subject to the
approval of the city engineer and that the city was offering the applicant
some opportunities to optimize their improvements.
Commissioner O'Brien questioned how much of the retaining wall would be
eliminated and how the grading would impact the wetland. VanderTop
indicated that it would not be feasible to eliminate all of the retaining wall. It
may be possible that the city chooses to grade into the wetland and
mitigate for it. Those decisions should be weighed by the applicant and the
city, and can be determined by review of the grading plan.
Commissioner Anderson confirmed that the storm sewer extension from
Bass Lake Road south onto the site would be an expense to the applicant.
Mr. Doresky stated staff felt that the overall site design was well conceived
and that the proposal provided a good opportunity to use a site that was
ready for development. The development was compatible with the existing
zoning and was consistent with the Comprehensive Plan. The building
would be an attractive addition to New Hope's Industrial District on a
heavily traveled thoroughfare. Staff recommends approval subject to the
conditions in the staff report.
Mr. Todd Young, KKE Architects, representing AC Carlson, stated that they
Planning Commission Meeting
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April 6, 2004
tried to get the grading issue resolved prior to this meeting. They found out
about the infiltration pond too late to change the plans. He stated they
would work with the city to make the project work better as requirements
for ponding at this time seemed excessive. He stated he had not heard
about the city's wetland delineation report before tonight. One contention of
the wetland delineation was the storm sewer letting out where it does. Mr.
Young stated that the applicant would like to work with the city to determine
if some of the grading could take place on the city property. It could be
beneficial for both parties and make a better transition from the wetland to
their property and give the applicant an opportunity to eliminate some of
the retaining wall. As part of the grading, they would consider doing some
wetland plantings in that area. He stated they would try to eliminate some
of the ponding on the south side of the property and work with the storm
sewer location and discharge into the pond.
The location of the pylon sign along Bass Lake Road may be relocated
closer to the corner within the setback requirements depending on
reconfiguring the pond. Mr. Young asked for waiver of final plat by the
Planning Commission.
Young stated that he did not feel the fire lane at the south side of the retail
building would pose a problem. There is a service door in the warehouse
that would be utilized for customer pick up of appliances, so there may
occasionally be a vehicle parked in that proposed fire lane.
Commissioner Brauch wondered whether it was realistic to get all of the
grading, ponding, and wetland delineation issues resolved prior to the April
12 City Council meeting. The city engineer stated it may not be necessary,
but would be preferred to have the final plans. Mr. McDonald stated that
staff would present what it has at the City Council meeting and recommend
approval subject to working out the details with the city engineer.
Chairman Svendsen questioned the width of the two concrete islands and
the recommendation of plantings in those areas. Mr. Young stated his
recollection of the Design and Review meeting was that those areas could
be concrete. Svendsen inquired as to the request of the Police Department
and whether the plantings at the front entrance had been relocated. Young
responded that some of the plantings were moved farther to the east. All of
the planting materials shown on the plan would be utilized.
Commissioner Oelkers initiated discussion on a left turn from Bass Lake
Road into the property which would be prohibited. A left turn out of the
property to the west on Bass Lake Road would be allowed.
Commissioner Hemken asked for clarification of any curbing along the
driveway from International Parkway into the property.
It was noted that the petitioner would work with the city on appropriate
wetland plantings.
There being no one in the audience to address the Commission, the public
hearing was closed.
Motion by Commissioner Hemken, seconded by Commissioner O'Brien
to close the Public Hearing on Planning Case 04-04. All voted in favor.
Motion carried.
MOTION
Item 4.2
Motion by Commissioner Oelkers, seconded by Commissioner O'Brien,
to approve Planning Case 04-04, Request for preliminary plat
Planning Commission Meeting
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April 6, 2004
approval of AC Carlson Addition and site/building plan review, 8901
Bass Lake Road, A.C. Carlson, Petitioner, subject to the following
conditions:
1. Comply with city engineer recommendations, including those
dated April 1, 2004, and noted in Planning Commission minutes of
April 6 regarding the pond and retaining wall.
2. Comply with Hennepin County requirements for platting and
access.
3. Approval of plans by building official.
4. Approval of plans by West Metro Fire-Rescue District and comply
with recommendations, including fire lane.
5. Enter into a development agreement with the city and provide
performance bond (amount to be determined by city engineer and
building official).
6. Comply with planning consultant recommendations including:
a. Revised plans did not show future expansion, but any
expansion would be required to be approved through the
planning process and proof of parking would be necessary.
b. Verify turning radius with building official at plan review.
Access off of Bass Lake Road should be identified as exit only
and will be limited to truck traffic only. Finally, the applicant to
complete the sidewalk along Bass Lake Road.
c. The applicant has identified a retaining wall on the southern
and eastern portions of the plan, however wall details are not
provided. The retaining walls will be subject to the review and
approval of the city staff.
d. Indicate the location of all mechanical areas on the exterior
elevation plan.
e. Submit photometric plan showing foot-candle measurements
at the property line and demonstrate fixtures comply with City
Code.
7. Correct minor plan issues including:
a. Landscaping plan correction, snow storage identification,
identify refuse enclosure door material, and match survey and
site plan area.
8. Planning Commission to waive review of final plat.
9. The plan is subject to review and approval of the Shingle Creek
Watershed District.
10. Sign permit is required and location of pylon sign to be
determined by final pond location.
Voting in favor: Anderson, Brauch, Buggy, Hemken, Landy, O'Brien,
Oelkers, Svendsen
Voting against: None
Absent: Barrick, Landy
Motion carried.
Svendsen stated that this planning case would be considered by the City
Council on April 12 and asked the petitioners to be in attendance.
PC01-09
Item 4.3
Chairman Svendsen introduced for discussion Item 4.3, Discussion of
neighborhood issues regarding 9220 Bass Lake Road, Tharp Family
Partnership, Petitioner.
Chairman Svendsen stated that staff would introduce the matter and then
the Commission would take public comments. All comments should be
Planning Commission Meeting
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April 6, 2004
limited to three minutes.
Mr. Kirk McDonald, community development director, explained that the
City Council had requested that the Planning Commission review Planning
Case 01-09 in response to some neighborhood concerns that were raised
at a recent City Council meeting during the open forum session. The
Planning Commission should consider the issues and make
recommendations. Neighborhood residents were invited to express their
viewpoints at the meeting and the property owner and/or his
representatives were invited to attend.
In 2001, Tharp Family Partnership was granted a conditional use permit to
allow the conversion of the office/warehouse building at 9220 Bass Lake
Road to convert the building from a single use to a multi-use building,
subject to certain conditions. Exterior changes were proposed for the
building including new parking lots, installation of windows along the north
and west sides of the building, and a new entrance on the southeastern
side of the building. Extensive renovation on the interior of the building is
currently under construction to create offices for tenants, as needed.
Several residents from the neighborhood have been complaining to the city
since last spring about several issues related to the property: loss of
privacy with the installation of windows on the north side of the building,
late night lights from the windows, lack of buffering/screening between the
residential and office use. Staff coordinated a meeting with the property
owner and residents in August 2003. Everyone who attended looked at the
property from inside and outside the building, as well as from the back
yards of the adjacent residents. As a result of that meeting, the property
owner agreed to take some measures to address the concerns, such as the
installation of blinds, light timers, etc. Staff thought the matter had been
resolved between the property owner and the residents. In February 2004,
staff received correspondence from adjacent property owners regarding
light glare from the windows. Staff has been working with all parties to try
to get the issues resolved on a staff level, but have not been successful.
Staff advised the neighbors to take their concerns to the City Council and
then advised the City Council to refer the matter back to the Planning
Commission for review and recommendation. The residents were invited to
attend this meeting to express their opinions. Staff hopes that some
agreement can be reached.
Mr. Shawn Tharp, Tharp Family Partnership, came forward to reiterate that
last fall they met with the neighbors to try and get the matter resolved.
They walked through the inside of the building and around the exterior. At
that time no promises were made as to the installation of blinds. A letter
was provided to staff stating that the light timers would be adjusted, the
cleaning people would shut the doors. Additional correspondence was
received from the neighbors and Mr. Steve Tharp, father, inquired of the
neighbors to see what they would like to have happen. Three or four of the
neighbors indicated they would prefer blinds rather than any kind of shrubs.
Blinds were ordered - some were backordered and a couple were
misordered - which delayed the process. As of March 28, all of the existing
windows have been blinded, in compliance with what his father had
promised the neighbors. Shawn Tharp stated that it was his understanding
that they were allowed to have no more than one foot candle of power
crossing the property line. M&E Engineering, Inc., consulting engineers,
took readings with all of the blinds open and all of the lights on during the
evening of March 23 and found that at no point along the property line were
the petitioners in violation of the ordinance.
Planning Commission Meeting
11
April 6, 2004
Commissioner Oelkers asked for clarification on the timers for the lights.
The timers were originally set for 30 minutes and have been reduced to 10
to 15 minutes. American Financial Marketing, whose offices are on the
north side of the building, closes at 5 p.m. and the cleaning person comes
in about 5:30 or 6 p.m. to vacuum, etc. This space is approximately 11,000
square feet and may take one to one and one-half hours to clean. The
cleaning person has been asked to shut lights off when finished. Another
tenant does their own cleaning so there should be no lights on at night
unless someone works after normal business hours. All windows on the
north side of the building have blinds as of March 28. The light meter
readings were conducted and the results were less than city standards.
Svendsen added that at the Design and Review meeting, it was mentioned
that the times were installed on all lights as an energy saver. Mr. Tharp
pointed out that the outside offices have timers, but the inside area could
not have timers installed. He stated that someone called his father late one
day in the evening to have lights shut off and his brother drove to the
building at approximately 10 p.m. to do so. He pointed out that they feel
they have done everything that has been asked of them and have gone
above and beyond as well.
Chairman Svendsen opened the floor for comments.
Ms. Georgia O'Brien, 9241 59th Avenue, came forward. She stated her
comments would be made with reference to the Mid America Financial
Plaza property at 9220 Bass Lake Road. She questioned the City Code
with reference to having sufficient screening prior to the installation of
windows in an industrial building adjacent to residential properties. Ms.
O'Brien stated she felt there was not sufficient screening. Most of the trees
along the building were on the homeowners' properties. If she removed any
of her trees, she would not have any screening. Friends and neighbors told
her they would not want to live in a house where a company of strangers
and cleaning people could watch their children playing in the back yard or
see inside their house. She felt that may impact the value in her home or
she may have trouble selling it. Her privacy had been invaded. She stated
that she did not remember any neighbors making a statement that blinds
would be preferred over shrubbery. They had talked about the fact that it
would take a long time for shrubbery to grow tall enough for ample
screening. Her home was at the north end of the building where the
property slopes downward and the windows to be installed there would be
level with the second story of her home. She has tall cottonwood trees with
no branches low enough to screen those windows. She has one tree that
would provide some screening planted too close to the house by the
previous owners and needed to be removed. Two other trees that would
screen her deck were planted too close together and one of those trees
needed to be removed. Upon removal of those trees, she would have no
screening. Ms. O'Brien stated she felt she now had to put up with the
windows and blinds and no other screening. She thought the Council had
stated that there should be sufficient screening. As a resident, she felt that
the Council should treat the businesses and residents in the same manner.
She is proud of the fact that all of the neighbors maintain their homes and
property, which displays a very attractive and inviting place to live. She
stated that the residents and business do not have problems being friends;
the issue is sufficient screening for the privacy of the homes, children, and
back yards. Another problem is the back of the building where the grass
has been dug up and there are piles of dirt. Last fall, water settled in the
ditch and produced large amounts of mosquitoes. She was asking the
Council members to consider the residents' situation and feelings. She
stated the neighbors across 59th Avenue were also upset about the way
this situation was being handled and were concerned that the city may treat
Planning Commission Meeting
12
April 6, 2004
them in the same manner if a similar situation arose. Ms. O'Brien
mentioned that she would like to talk to adjacent property owners of the
Ryland development to see if city planners had informed them of the
development and the proposed screening. She mentioned at the last
Council meeting she attended one of the Council members had inquired of
the developer whether they had discussed their plans with the residents.
Residents should be asked for their opinion prior to approval. She thought
that if there was only a problem in their neighborhood that she may have
overlooked something, but that may not be the case. She only received
one public hearing notice that stated the building would be converted from
a one-tenant building to a multi-tenant building. She did not know the
building would be changed until the owner came to her home to show her
the plans, and she told him at that time that she objected to the windows on
the north side and the invasion of privacy. His response was that the plans
had already been approved. She stated she has lived in New Hope for nine
years and this was the first city that she did not get the entire agenda. Ms.
O'Brien stated that the Planning Commission should take into
consideration what this neighborhood is experiencing.
Commissioner Hemken inquired what would be acceptable screening and
Ms. O'Brien responded that there was no acceptable screening now due to
the fact that there was no shrubbery or sufficient trees. The only thing may
be a highway type fence. A six-foot fence would not be sufficient for her
property because that would not be tall enough. She stated she had
inquired whether the owners could put shutters on the outside of the
windows so if the shutters were closed no one could see in or out. The
owner had indicated that the windows to be installed would be the same as
on the south side of the building. She felt the Commission members would
not want this type of situation in their back yard, and two members
responded that they lived near similar situations. Ms. O'Brien indicated that
possibly large evergreen trees would be acceptable from the middle to
eastern portion of the building because the ground was higher and the
windows were lower. It was clarified that the north side of the building did
have grass and an irrigation system when Prudential was utilizing the
building. The leaves were raked and the property kept up. The ditch always
had grass in it, not like the mud now. She thought some type of sewer line
had been installed, but water still stands in the ditch.
Bill and Trish Gabrys, 9209 59th Avenue, came forward. Mr. Gabrys gave
staff a couple letters from residents who could not attend this meeting:
Vince and Lorraine Grimaldi, 9224 59th Avenue, and Taryn and Linda
Buchring, 5808 Gettysburg Circle. He mentioned an email to Mr. McDonald
that explained the neighborhood residents did not feel the blinds were a
sufficient resolution to the situation. Mr. Tharp had given the residents an
option of $400 each for plantings or blinds on the windows. The residents
had determined that $400 was not sufficient to provide screening. Mr.
Gabrys stated that the blinds had now been installed, however, the office
workers pull the blinds to the top of the window leaving the windows bare.
There was no control over what goes on inside the building. He
remembered talk about an eight-foot wood fence the full length of the
building, and thought Mr. Tharp was now adamant about not installing this
fence. Due to the downward slope of the topography, if the fence was
placed at the property line, it would not provide any screening. Screening
would be more effective if the fence could be placed half way up the hill.
He stated his wife is a teacher and is home during the summer and enjoys
being outside in the back yard. They have abandoned the garden in the
back yard due to people from the office building watching them, which they
felt was an invasion of their privacy. Mr. Gabrys stated that they purchased
this home because there were no windows on the north side of that building
Planning Commission Meeting
13
April 6, 2004
and felt the home to be more valuable because of the privacy afforded
them, and that privacy had now been taken away. Not all value is
monetary. He stated that value had been stripped from the residents so the
business could profit from it. He suggested that the windows yet to be
installed be glass block to bring in light, but would be better in terms of
privacy for the residents.
Mrs. Gabrys stated they researched the City Code as it related to screening
between a commercial building and residential. The code states that a
green belt should be a planting strip designed so that it provides complete
visual screening to a minimum height of six feet. A photo taken from the
deck of the Gabrys home was shown of the building taken during the winter
with no leaves on the trees. Summertime provides minimal screening. The
screening was not acceptable and not according to code. Mr. Gabrys
indicated that part of the conditions were that an eight-foot fence be
installed and Mr. Tharp had agreed to put it in. He mentioned his June 14,
2003, letter and the July 23, 2001, Council minutes that indicate a fence
was discussed and needed. After further discussion by the Council, only a
fence on the westernmost portion of the property was required. The
residents were not questioned about what they felt would be appropriate.
Mr. Gabrys stated they had not attended the Planning Commission or City
Council meetings in July 2001. He stated that the mayor had visited the
residential sites during that time and he seemed to be concerned because
residents were raising issues. Mr. and Mrs. Gabrys both agreed there was a
major compatibility issue between the residents and the business, they feel
the code had not been enforced, and the screening was totally inadequate.
They were asking for a resolution to this long-standing problem. Mr. Gabrys
stated he felt ashamed that the Council approved the request. After being
asked whether or not they received the initial public hearing notice, the
Gabrys stated they do not believe they did. Mr. Gabrys stated that not all of
the neighbors had received the notice for this meeting. Commissioner
Brauch informed the Gabrys that a posting of the notice was published in
the SunPost as well. Mrs. Gabrys stated that they are involved with city
activities and are involved with the community. She admitted that they do
not read everything in the newspaper. She still felt it was the responsibility
of the Planning Commission to enforce the code and it was not being
enforced in this situation. One resident was at the July 2001 Planning
Commission and City Council meetings and the windows were still installed
in the building and the screening was not there. It also seemed that the
privacy issue of residents at the other end of the block was glazed over
possibly due to lack of representation. A question was raised as to the
distance from the deck in the photo to the windows in the building and the
response was about 31 feet to the property line and about another 40 feet
to the building. Ms. Gabrys added that the lights from the building and
being able to see in was a big issue. The blinds that have been installed
are not always down and the cleaning people leave lights on. They do not
feel they should have to call the owner of the building whenever the lights
are left on. Mrs. Gabrys stated they want a fence or something to block the
windows. She felt the shrubbery would not accomplish that and anything
planted now would not grow that fast. Mr. Gabrys wondered why screening
between residential and commercial properties was in the code and if it
was for privacy. Mrs. Gabrys stated that the proposed landscaping plan
looked good on paper, but in reality the site should be looked at to
determine what was living and healthy. In summer when the trees were
leaved out it looks a lot different than in winter when there are no leaves.
Mr. Gabrys noted that when they toured the building in August, it was
obvious there were clear views to the homes and the screening was not
adequate. The Commission asked what their suggestion was to remedy the
situation. Mr. Gabrys responded that a fence would be good but it would
Planning Commission Meeting
14
April 6, 2004
either need to be very high at the property line or placed part way up the
embankment toward the building.
Mr. Jim Rieder, 9301 59th Avenue, whose home was located just north of
the west end of the building, approached the podium. He stated the
existing fence ends between his property at 9301 and Ms. O'Brien's
property at 9241 59th Avenue. He stated he had conversations with the
Tharps regarding cleaning up the property. From their side of the fence to
the west, trees had been planted and some seeding done. Mr. Rieder
stated he takes a lot of pride in his back yard and he would like to have a
conversation with the Tharps sometime soon about their plan for cleaning
up the pond/ditch area and to get a timeline for when the work would get
done. The fence in that area does not go all the way to the ground and
there is black dirt in that area which should be fixed. It was confirmed that
the Rieders had received the public hearing notice in June 2001 because
Mrs. Rieder was in attendance and spoke at the meetings. Mr. Rieder
confirmed that the existing fence was done nicely and sodding was done
on the business side of the fence. He would like the portion of the property
on his side of the fence cleaned up.
Mr. Steve Lovcik, 9225 59th Avenue, came forward stated that his property
was screened with a green belt, however, it is not sufficient. The trees on
the Tharp property are old and were pruned, but he was hoping the trees
would be replaced. Due to the fact that his property was located where the
property slopes and the windows are very high up, his suggestion would be
either a 16-foot high fence or evergreen trees that do properly screen. A
shorter fence could be installed if it were located partway up the hill. Mr.
Lovcik confirmed that he had received the public hearing notice and he had
attended the Council meeting. He stated that he had emailed
correspondence to the city.
Ms. Ingrid Neu, 9217 59th Avenue, stated that her home was adjacent to
where the first wave of windows were installed. She stated that the lights
are usually off at night. The grass was bad at the back of the building
where trucks had driven over it and she hoped that this summer seed could
be planted. She stated there was no screening between her property and
the building as she can see people working in the office from her kitchen
window, especially in winter. She suggested some shrubbery and/or fir
trees. The shrubbery would help more when residents are in their back
yards. Her house is the highest in the neighborhood so she looks down at
the building. The trees on her property are sufficient at this time. Ms. Neu
stated that here home had been sold and they would be moving at the end
of April. She indicated she was speaking for the family moving into her
house. She confirmed that she had received the public hearing notice, but
did not know at the time what it was for or what it meant. The notice did not
state that windows would be installed. Ms. Neu was asked what her
suggestion would be and she responded that evergreens would be better
than a fence, because a fence would not be attractive to look at all the
time. She was asked whether the trucks drove over her property and she
replied that the trucks were on the Tharp property and the tracks were still
there where the grass had been disturbed. A commissioner inquired
whether her property had been difficult to sell or whether the property value
had depreciated. Ms. Neu stated that the property was not difficult to sell
and her realtor confirmed that the building itself may have had some effect
but the windows did not affect the value of the property. It was discussed
that some of the residential properties have a fence in the back yard. Ms.
Neu and her neighbor have a chain link fence and the property at 9201
59th has a six-foot wood fence. She stated that she can see the parking lot
and Bass Lake Road from her windows.
Planning Commission Meeting
15
April 6, 2004
Mrs. Gabrys interjected that there had been discussion previously of
connecting the fence all the way from west to east on the Tharp property.
Mr. Lance Tharp, Tharp Family Partnership and general contractor for the
complex, came forward. He stated that the only truck traffic that would
have disturbed any ground on the east side of the building would be an
eight to 12-foot strip for a bobcat to get in to remove the pieces of
concrete, which happened in February. They pay a lawn service every year
to come in and do raking and pick up debris. When the utilities were
installed near the western end of the building, some piles of dirt were left
and he stated he had done the grading so the water would drain away from
the building. He would be removing the pile of dirt. On the north side of the
building, there are 20 to 30 trees and shrubs, such as Norway pines and
possibly cottonwoods. The trees that one of the residents mentioned
removing are 12 to 15-inch Norway pines which are taller than the top of
the building. They cleaned up all the lower dead branches. The existing
fence conforms to the requirements of the original CUP. The fence was
placed there to restrict children and pets from accidentally getting into the
pond. The fence was placed on the berm adjacent to 9301 and offset the
fence along the property line by about eight to 10 feet due to underground
utilities. They did not use any heavy equipment in the area west of the
building other than a two-man posthole digger to try and not disturb the
ground. There was still some dirt work to complete that runs along the
fence line. In addition to the greenery requirements, they were required to
install six to eight-foot tall evergreen trees. They purchased and installed
30 trees and planted them along the back line. Approximately five trees
have died will be replaced. The problem with placing a fence close to the
building would not let in much light and placing the fence at the property
line interferes with utilities. Additional work will be completed this year near
the west corner of the building near the dumpsters. Mr. Tharp indicated that
Ms. O'Brien was the person that insisted that the sign be changed from an
illuminated sign on the west side of the building to a non-lighted sign. He
stated that his father has tried to be a good neighbor and meet with the
neighbors to take suggestions. Lance stated he also plowed some
driveways during the winter a year ago to be nice since he had the
equipment there, however, the residents did not appreciate it so he did not
plow any residents' driveways this year. He stated he had cut down some
cottonwood trees for Mr. Feldberg at 9315 59th Avenue at the time they
were constructing the fence. They also helped out a couple of the other
neighbors with some landscape edging. At this time they have installed
between $3,000 and $5,000 worth of blinds on the building that was not
required as part of the conditional use permit granted in 2001. Due to the
large amount of trees and cottonwoods near the pond, the drain does get
plugged with leaves and branches and the landscaping company had been
advised to unplug the drain. During very heavy storms leaves and debris
that comes through the easement plugs the drain which then plugs the
pond. The rest of the windows for the building would be installed as tenants
are identified. The cedar fence that was installed is approximately 425 feet
long and cost $17,000, which was a provision of the CUP. In order for the
homes adjacent to the western part of the building where the windows are
higher to have any type of effective screening, a fence placed at the lowest
part of the ditch would have to be 30 feet high. There are approximately
five to ten 10 to 20-inch Norway pines along the back of the building. It
would not be feasible to bring in large enough trees to screen the yet-to-be
installed windows on the west end of the building. The old irrigation system
was removed and new irrigation lines have been installed, however, the
patch back work had not yet been completed. Mr. Tharp stated they have
discussed mulching the entire north side of the building because it is
Planning Commission Meeting
16
April 6, 2004
difficult for any grass or landscaping to grow in that area. He stated when
the light meter readings were done, there were no readings higher than .03
foot candle at the property lines. The readings were taken with all of the
lights on and the blinds up. The windows in the area currently under
construction have poly placed over all of the windows and all the blinds
were closed. Sheetrock was placed in front of other doors where lights
could not be turned off to shield it from the residents.
Mr. Tharp reported they are trying to do all they can to be good neighbors.
He stated there was never any mention of a fence running the entire length
of the building. In order to do that it would need to be placed at the bottom
of the hill or placed mid-point and remove the trees on the property.
Chairman Svendsen questioned where construction traffic would come
onto the property. Mr. Tharp stated that the last windows to be installed
were on the west end of the building and construction traffic would enter
from the west side. Due to the fact that the building is 20 or 30 feet tall
there, that back area is the darkest place and grass or sod does not grow
there, which was why he felt mulch would be a better idea. Svendsen
reiterated that restoration of existing landscaping would be started soon.
Tharp stated that they would be restoring the grass where they could and
staining the fence (one side was stained last fall). Dead trees would be
replaced. There was some work to do on the east side of the new parking
area.
Discussion was initiated on the trees in the rear yard at 9209 59th, and Mrs.
Gabrys stated that maple trees were tall enough to be above the windows,
leaving them totally exposed. The amur maple tree is about 12 feet from
the building. The first two windows on the east end of the building were not
installed. Nine windows were installed last February and five additional
windows were installed this past spring. The windows vary in size - two or
three panes each. The windows are being installed as they get tenants.
Hemken questioned why the new trees were dying and Mr. Tharp stated he
did not know, but those trees would be replaced. It was estimated that the
cost of an eight to 10 foot tall evergreen tree would cost $1,000.
Hemken pointed out that there are nine unhappy neighbors and wondered
what could be done. Mr. Tharp responded that they had done everything
they could to make them happy, but would take suggestions.
Mrs. Gabrys was concerned that resolving the compatibility issue with
landscaping was that the plantings could die or not be watered or not
placed to be an effective screening. She stated she would like to see a
fence to separate the properties. She wondered, if grass does not grow on
the north side of the building, trees probably won't either. She didn't see
any resolution for the residents who live farther to the west where the
windows would be higher on the building. Mrs. Gabrys wondered if it would
be appropriate to revoke the CUP. She suggested analyzing what type of
windows should be installed, such as a block that would let light in but
workers couldn't see through. What was the purpose of the windows - to let
light in or to give the workers a nice view to look at while they were
working. She stated that they desire a fence. Last year they planted seven
pine trees at seven feet tall and the total cost for the trees and planting was
about $2,000.
Commissioner Brauch thanked the residents for coming to address the
Commission. He stated that as planning commissioners they take their
voluntary job seriously, especially when it came to commercial versus
Planning Commission Meeting
17
April 6, 2004
residential properties. In this case, the commercial use was already in
place. He stated he questioned the residents if they received the public
hearing notice because of the old saying that "government is controlled by
those who participate." As a Planning Commission it had sometimes gone
to ridiculous levels to try and address issues brought forward by residents
in attendance at the meeting. In this case for whatever reason, only one
resident came to the Planning Commission meeting and brought some
issues forward which were addressed at the time. If others were not able to
attend, that was their choice. In effect, it takes leverage away from the
Planning Commission because at that time, as a commission,
requirements could be attached to the request. In this case, the facts have
not changed, the windows were always on the plans and the plans were
available for inspection at city hall prior to the meeting for anyone who
could not attend the meeting. In 2001, residents brought up a concern
about the water retention pond and that was addressed along with the
fence on the western end of the property. Some of the screening issues on
the western end of the property were addressed due to concerns raised. No
one else came forward then so the concerns of the windows are being
heard for the first time tonight. It is unfortunate these items are being
brought forward at this time because the Planning Commission does not
have the same leverage now as it would have had in 2001. The permits
and building are in place and the petitioner has moved forward with the
project and has no other choice from an economic standpoint. At times the
Planning Commission has put stringent requirements on petitioners at the
request of residents, and sometimes the petitioner did not move forward
with the project due to those requirements. All of those issues are in the
past, and Commissioner Brauch stated he heard the concerns of the
residents and didn't disagree with their concerns. He also heard from the
owners of the building and cannot disagree with them either. Any fix,
whether it would be a fence or landscaping, would be an expensive
proposition. The choice would be difficult to make. He had seen a
willingness by the owner of the building to work with the residents in trying
to resolve some of these issues, such as the timers and blinds, which have
been installed at their expense when it was not a requirement of the
conditional use permit. Tonight the owners stated they would do more
landscaping and grading. Based upon the conditions presented to them at
the time of the application, they have completed the items requested by
the Planning Commission. Brauch was not sure if any conditions changed
at the City Council meeting because he was not at that meeting. At this
meeting there have been suggestions for a fence or landscaping, neither of
which will make everyone happy. Brauch stated that he felt the right course
of action would be for the residents to meet with the owner of the building
and try to work through the situation. He reiterated that the Planning
Commission does not have the right to force any other conditions on the
building owner.
Chairman Svendsen commented that with regard to city ordinances for
light issues and the ensuing discussion, the Commission felt that the issue
of green separation would be adequate. With regard to the windows on the
building and the privacy issue, he suggested that the residents close their
drapes, the same as anyone else would do in a similar situation. Tharp
Family Partnership had complied with all the issues raised at the Design
and Review Committee, including the fence. At no time was it
recommended that the fence continue the entire length of the building. The
trees were discussed. Svendsen stated he heard what the residents were
saying, however, at this point, the ordinance had been met.
Commissioner Oelkers concurred with Commissioner Brauch and
Chairman Svendsen. Oelkers initiated discussion on the size of the
Planning Commission Meeting
18
April 6, 2004
windows and whether or not the original plan was approved with double or
triple windows. He questioned whether the eight to 10 pine trees that would
be replaced could be relocated on the north end of the building where
additional screening was needed. It was noted that some of the trees were
located near the ponding area. He mentioned that the drainage issue
should be resolved at this property, however, there were many areas of the
city where drainage was a problem.
Mr. Bill Gabrys spoke again regarding the July 2001 Planning Commission
minutes where there had been some discussion of and a recommendation
from staff for an eight-foot cedar fence along the north property line.
Oelkers explained that the fence shown on the approved plans ends at the
west end of the building. Gabrys stated he felt that there had been other
discussion of a fence along the north property line and that the length of
the fence was whittled down to only be placed at the very west end of the
property, which was one of the conditions of the CUP. He thought that
since representation from the neighborhood was not at the Planning
Commission meeting in 2001 that the screening for the north side of the
property and the adjacent residents were forgotten and the city did not
care.
Brixius interjected that Mr. Gabrys' reference was to the June 27 planning
report's summary and recommendation which was modified to include
construction of an eight-foot cedar fence from the west end of the existing
fence to the west end of the site. Actual recommendation was from the
west end of the building to the west end of the site, which was approved.
Gabrys insisted on clarification on what happened to the mentioning of
screening or fencing for the northern border as recommended by staff.
Brixius stated he believed that the modification resulted from the public
hearing and recommendation from the Planning Commission. Svendsen
pointed out that a recommendation from the Design and Review
Committee meeting on June 14, 2001, was that consideration be given to
the north landscaping/buffer adjacent to the residential area with an eight-
foot cedar fence including new trees west of building. Gabrys insisted that
on July 23 staff recommended an eight-foot cedar fence along the north
property line.
Ms. O'Brien wondered about the code section that states planting strips
shall be designed to provide complete screening to a minimum height of
six feet. She stressed that there is no sufficient screening. With all the talk
that the Tharp family is taking care of the neighbors, there still is not
sufficient screening and she wanted to know why. She wondered what kind
of screening would be in place when the new windows are installed on the
western end of the building. A six foot fence would not help and it would be
impractical to construct a 30-foot fence. Plantings will not grow in the
shaded area. Ms. O'Brien wondered what the solution was for her property.
With regard to not attending the July 2001 Planning Commission meeting,
the notice stated the building would convert from a single tenant to a multi-
tenant building. The notice did not say anything about plans to change the
building. She thought the building would not change and the use would not
affect her. Svendsen responded that a notice for a change, whether it was
for a conditional use permit, variance, etc., was minimally worded due to
publication costs in the local newspaper. The ordinance states that a notice
be published in the local paper and the notice is sent to all property owners
within 350 feet of the subject site. It would be up to the residents
themselves to get the facts if they are interested.
Mr. Sondrall clarified that this matter was a zoning or land use issue
relative to the Council approving a conditional use permit for a multi-tenant
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April 6, 2004
building in an R-O, residential office zoning district. There are conditions in
the code that need to be met to allow the use and as long as those
conditions are met, the City Council has no choice but to grant the CUP to
allow for the use. Relative to the windows and the amount of windows that
were constructed or are yet to be constructed was not a zoning or land use
issue, it would be a building code issue. The city may not be able to restrict
the number of windows in a building as long as the windows comply with
the Minnesota State Building Code. The city cannot enact its own building
code. As long as the windows meet the building code requirement, the
windows would probably be legal. There is the perception of a privacy issue
which might have some bearing on the land use or zoning code issue. The
chairman pointed out that a person can control what goes on inside his own
house through the use of drapes or window coverings, etc. Mr. Sondrall
stated that, in his opinion, legally, if a person was outside on their deck or
in their yard, that person was in the public. He felt that any court would
conclude that there was no expectation of privacy if a person was out
publicly. Some back yards are more private than others, which may be why
some people choose to purchase various properties. Whether someone
from the Tharp building was looking at a resident on the deck or whether
someone on the street was driving by or walking along the property line
and looking at them, he thought the city could not enforce a land use
planning issue based on the fact that someone may not want to be viewed
sitting on their deck. The city would be on tenuous ground if it attempted to
justify a particular change relative to the existing CUP on that basis alone.
Sondrall suggested that after listening to the comments from the residents,
staff, the Planning Commission and/or the City Council should review the
conditional use permit to determine whether there had been any violations
with regard to the number or kind of windows to be constructed and what
was submitted with the original plans. The only leverage at this time would
be to argue that there may have been a violation of the CUP and the city
would initiate an action to revoke it unless the applicant complied with
some other provision. Sondrall stated that he had not heard anything that
would lead him to recommend to the Planning Commission or City Council
that the city could win a revocation matter of this CUP in court. The city
would be hard pressed to suggest to the property owner that the city would
revoke the CUP unless they did XYZ. He thought that the best thing to do
would be to keep the Tharp family and residents talking to each other with
city staff facilitating as a mediator, with the petitioner understanding that
the city does have the power to revoke the CUP and review the CUP to be
certain it was being complied with.
Brixius added that the replacement of the existing landscaping at the rear
of the building was reasonable and staff could probably work with the
Tharps to get the replacement trees relocated. A question was raised
whether or not the landscaping had been complied with. Brixius responded
that most of the planting on the back was existing landscaping, i.e., the
cottonwoods and amur maples. McDonald interjected that the city still was
holding a financial guarantee on this project. Typically, at the end of a
project the applicant requests release of their bond, and the city engineer
and building official check to be sure all conditions have been met prior to
releasing the bond. Oelkers commented that he felt the city was asking the
Tharps, as a gesture of good will, to replace trees that are dying that they
were not required to plant. He stated they had been reasonable in trying to
be good neighbors. Commissioner Buggy stated he was hearing that the
existing trees were too tall for proper screening. He suggested that the
neighbors and the Tharps look at the north area and find a way to invest in
mid-height shrubs and trees that would help with that space at ground
level. This should be able to be accomplished without too great of an
expense. He thought the blinds and timers were a good idea. He stated he
Planning Commission Meeting
20
April 6, 2004
had worked in office buildings in the past where it was required that the
blinds were kept down at all times. He wondered whether the blinds could
be fixed and secured at the bottom so the tenants could not pull the blinds
up to the top. He inquired if the cleaning people were instructed to close
the blinds in the offices each night. He felt that no type of screening or
fencing would block second or third story windows from view.
Svendsen asked that discussion on this issue be continued and the
residents and Tharps should work together to resolve the issues. It was
noted that it was still too early in the year to do any landscaping or planting
work. It was suggested that the Tharps meet among themselves and
determine if there were any further steps they could take to alleviate the
situation. Another suggestion was for shared costs for screening for a
mutually acceptable end. Brixius stated that the code suggests two types of
screening for this commercial-residential situation: fencing or landscaping.
In the original format, staff looked at the existing landscaping and
determined it was sufficient because there would be no exterior activity
occurring. Oelkers interjected that he remembered discussion on the
placement of the fence, whether it would be placed on the lot line and if
that would accomplish the desired effect and whether or not a fence would
interfere with drainage.
Mr. Sondrall stated that condition, as are all requirements that the city
establishes for a CUP, are factually driven, therefore, the definition for
reasonable screening in the code would not be clear as that would be
based on one's viewpoint and perception as an individual. The court would
look at it from an arbitrary and capricious standard. The city laid out what it
thought was reasonable screening in the resolution, which was the addition
of the fencing and other shrubs, but the court may say that is an arbitrary
requirement. Some people like fencing and some do not. Fencing would
not screen the higher windows and city planners would have a different
viewpoint on fencing versus shrubbery.
Oelkers wondered if this discussion was continued and placed on the
agenda again, if it would be up to the Planning Commission to just make a
recommendation or whether public input would again be sought. Sondrall
stated that this item would not need to be forwarded to the City Council if a
resolution could be found between the residents and petitioner concerning
what needed to be done. At the present time, unless there was justification
for a revocation of the CUP, this matter would not need to be returned to
the City Council. This was just a discussion because of a concern. What
satisfaction is there for the residents? If the two parties can work out the
details, that would be the end of this matter. There is no determination at
this time that the petitioner had violated the conditions of the CUP. It if
would be determined that there are violations of the CUP, there should be
a staff recommendation about that which would come back to the Planning
Commission and those findings would then be forwarded to the City
Council and the Council would determine what to do.
Svendsen stated that from this discussion the CUP had not been violated
and the ordinance had been met. The homeowners could still work with the
property owner to rectify the remaining issues. He did not see anything else
the Commission could do. Brixius suggested several options to alleviate
concerns with glare and privacy issues. Staff could meet with the Tharps to
determine the feasibility of relocating eight pine trees to the back of the
building, look at the options for having the blinds permanently fixed to the
bottom of the windows, and other site improvements, such as grass. The
city code states that if a tree dies, it has to be replaced. After staff and the
property owner meets, that information could be brought back to the
Planning Commission Meeting
21
April 6, 2004
PC04-06
Item 4.6
MOTION
Item 4.6
Design and Review
Committee
Item 5.1
Codes and Standards
Planning Commission Meeting
Planning Commission. McDonald added that the purpose of the discussion
tonight was for the residents to bring their concerns forward. Zoning and
legal issues could be reviewed. The property owner could determine if any
other changes could be made. The petitioners could be invited back. He
suggested that the City Council would like to see these issues resolved
through the Planning Commission, if possible.
Hemken reiterated that the neighbors are frustrated and should not be put
off. Brixius suggested that this matter be placed on the May Planning
Commission agenda to determine a proper outcome. O'Brien suggested
that some sort of awning be utilized. Oelkers interjected that through
discussions at the Design and Review meeting, one of the reasons for the
windows was to allow some natural light into the building. If an awning was
placed on the windows on the north side, that would eliminate any sunlight
that might otherwise come in. The windows increase the value of the
property for an office use.
One of the Tharp representatives added that the north elevation plan from
the original planning packet showed the windows on that side of the
building.
Chairman Svendsen directed that this matter be placed on the May 4
Planning Commission agenda and informed the residents they were
welcome to attend.
Mr. Gabrys reminded the commissioners that six months of the year there
are no leaves on the trees.
Chairman Svendsen introduced for discussion Item 4.6, Request for
platting of property, rezoning, Comprehensive Plan amendment, and
concepti development stage planned unit development approval, 5620
Winnetka Avenue North, Armory Development/Master Development
Group, Petitioners.
Chairman Svendsen stated that the petitioner would be submitting revised
plans and had requested that this issue be tabled. Svendsen advised the
Commission that a special meeting would be held on Tuesday, April 20, at
7 p.m. to consider this planning case.
Motion by Commissioner Buggy, seconded by Commissioner O'Brien, to
table Planning Case 04-06, Request for platting of property, rezoning,
Comprehensive Plan amendment, and concepti development stage
planned unit development approval, 5620 Winnetka Avenue North,
Armory Development/Master Development Group, Petitioners.
Voting in favor: Anderson, Brauch, Buggy, Hemken, Landy, O'Brien,
Oelkers, Svendsen
Voting against: None
Absent: Barrick, Landy
Motion carried.
Svendsen reported that the Design and Review Committee met with the
petitioners in March with the petitioners and also held a special meeting on
the screening issue. He added that staff was expecting several applications
for the April meeting. The Committee will meet on April 15 at 7:30 a.m.
The Committee will review the revised Winnetka town home plans on that
day as well.
Hemken reported that the Codes and Standards Committee did not meet in
22
April 6, 2004
Committee
Item 5.2
OLD BUSINESS
Miscellaneous Issues
NEW BUSINESS
ANNOUNCEMENTS
ADJOURNMENT
Planning Commission Meeting
March.
Commissioner Oelkers reported that sales for the Ryland Homes
town homes were going well and units were selling approximately $25,000
higher than previously stated.
Motion was made by Commissioner Hemken, seconded by
Commissioner O'Brien, to approve the Planning Commission minutes
of March 2, 2004. All voted in favor. Motion carried.
City Council/EDA minutes were reviewed.
McDonald informed commissioners that GTS training was available and
anyone desiring to attend should contact city staff.
There were no announcement.
The Planning Commission meeting was unanimously adjourned at 10:35
p.m.
Respectfully submitted,
Pamela Sylvester
Recording Secretary
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April 6, 2004