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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 2 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 3 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 Planning Commission Meeting 4 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, Planning Commission Meeting 5 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 Planning Commission Meeting 6 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 7 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 8 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 9 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 10 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 Planning Commission Meeting 19 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 23 April 6, 2004