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090297 Planning AGENDA PLANNING COMMISSION MEETING OF SEPTEMBER 2, 1997 CITY OF NEW HOPE, MINNESOTA 7:00 p.m. 1. CALL TO ORDER 2. ROLL CALL 3. CONSENT ITEMS 4. PUBLIC HEARINGS 4.1' Case 97-17 Request for a Variance to Allow an Air Conditioning Unit in Side Yard, 4617 Del Drive, Todd & Joan Lewis, Petitioners 5.1 5.2 5.3 COMMITTEE REPORTS Report of Design & Review Committee - Next Meeting: August 14 at 8 a.m. Report of Codes & Standards Committee - Next Meeting: September 24 at 7 a.m. Report of Comprehensive Plan Update Committee - Next Meeting September 18 at 5 p.m. OLD BUSINESS Miscellaneous Issues 7.1 7.2 7.3 NEW BUSINESS Review/Approval of Planning Commission Minutes of August 5, 1997. Review of City Council Minutes of July 28 and August 11, 1997. Review of EDA Minutes of June 9, 1997. 8. ANNOUNCEMENTS 9. ADJOURNMENT *Petitioners are required to be in attendance Planning Commission Guidelines for Public Input The Planning Commission is an advisory body, created to advise the City Council on land use. The Planning Commission will recommend Council approval or denial of a land use proposal based upon the Planning Commission's determination of whether the proposed use is permitted under the Zoning Code and the Comprehensive Plan, and whether the proposed use will, or will not, adversely affect the surrounding neighborhood. The Planning Commission holds informal public hearings on land use proposals to enable you to learn, first-hand, what such proposals are, and to permit you to ask questions and offer comments. Your questions and comments become part of the record and will be used by the Council, along with the Planning Commission's recommendation, in reaching its decision. To aid in your understanding and to facilitate your comments and questions, the Planning Commission will utilize the following procedure: 1. The Planning Commission Chair will introduce the proposal. 2. City staff will outline the proposal and staff's recommendations and answer any questions from the Planning Commission. 3. The petitioner is invited to describe the proposal, make comments on the staff report, and answer questions from the Planning Commission. ~- 4. The Chair will open the public hearing, asking first for those who wish to speak to so indicate by raising their hands. The Chair may set a time limit for individual questions/comments if a large number of persons have indicated a desire to speak. Spokespersons for groups will have a longer period of time for questions/comments. 5. When recognized by the Chair, the person wishing to speak is asked to come forward and to give their full name and address clearly. Remember, your questions/comments are for the record. 6. Direct your questions/comments to the Chair. The Chair will determine who will answer your questions. 7. No one will be given the opportunity to speak a second time until everyone has had the opportunity to speak initially. Please limit your second presentation to new information, not rebuttal. 8. At the close of the public hearing, the Planning Commission will discuss the proposal and take appropriate action. A. If the Planning'Commission recommends that the City Council approve or deny a request, the planning case will be placed on the City Council agenda for the next regular meeting. Usually this meeting is within one to two weeks of the Planning Commission meeting. B. If the Planning Commission tables the request, the petitioner will be asked to return for the next Commission meeting. I t,1 SEPTEI~ER PLANNING CASES PC97-17 4617 Del Drive ZONING DISTRICT MAP R-1 ~ingll Fam~f Remdential R-2 Single and Two ~ily Re~ent~M R-3 M~ium O~ R~ H~ O~ Reliden~M R-5 ~/Oi~' Re~dentiM R~(~O) ~ntiM O~e - PUD ~1 ~ ~m~ au~ne~ · 2 Re~l ~ C~mun~ ~Nne~ t-1 Um~ In~ I-2 ~ In~ 1 INCH = 2100 FEET Planning Case: Request: Location: PID No.: Zoning: Petitioner: Report Date: Meeting Date: CITY OF NEW HOPE PLANNING CASE REPORT 97-17 Request for a Variance to Allow an Air Conditioning Unit in Side Yard 4617 Del Drive 07-118-21-44-0028 R-l, Single Family Residential, Zoning District Todd & Joan Lewis August 29, 1997 September 2, 1997 BACKGROUND 1. The petitioner is requesting a variance to allow an air conditioner in the side yard less than ten feet from the property line, pursuant to Section 4.032(3)(i) - New Hope Code of Ordinances. 2. This is an after-the-fact application, as an air conditioner/condenser was installed in the north side yard of the Lewis residence at 4617 Del Drive on May 19, 1997, by Standard Heating and Air Conditioning. 3. The petitioner contacted the contractor for the installation and requested that the unit be installed in the north side yard after weighing a number of options and after discussing with the neighbors on the north. The petitioner was unaware that City Code prohibited the installation of air conditioners in the side yard. The petitioner expected that the contractor would notify them of areas where the unit could or should not be placed and the contractor did not inform them of any violations. 4. After the unit was in place and operating properly, the petitioner contacted the City for a routine inspection. It was at this point that the petitioner learned that the contractor had not applied for a permit and that they were in violation of the Zoning Ordinance. The contractor subsequently obtained a permit on July 16. All mechanical permits clearly state under the "Remarks" section "Do Not Install Equipment in Side Yards." 5. The petitioner is requesting to leave the new unit in its existing location, thus this variance application. 6. Section 4.032(3)(i) of the Zoning Code, "Accessory Buildings, Uses and Equipment - Air Conditioners," states that "accessory uses or equipment such as air conditioning cooling structures or condensers (ground mounted) which generate noise shall be located in rear yards behind the rear building lines." The Code also states that certain structural elements or equipment shall not be considered as encroachments on yard setback requirements and air conditioners in rear yards are permitted encroachments, however, air conditioners are not allowed as encroachments in side yards. 7. The property is located on the west side of Del Drive, just north of 46th Avenue North. The property is located in an R-1 Single Family Residential Zoning District and is surrounded by R-1 properties. 8. The property is 75 feet in width and has a depth of 134 feet, with a total lot area of approximately 10,000 square feet. 9. There is a single car attached garage on the south side of the home and the air conditioner is located on the north side of the home near a side entrance. The existing home on the property meets the required setback requirements. There is a 10-foot distance (the required setback) between the north property line and the house, including a 5-foot utility and drainage easement. The ground mounted air conditioning unit is located 6 feet 8 inches from the property line (therefore, although it is within the 10- foot setback, it is not within the 5-foot easement). Note that the home is located approximately 20 feet from the south property line so there is adequate space to add a garage addition in the future. Planning Case 97-17 ~ Page ~. 10. The topography of the property slopes toward the south side following the street grade and drops 7 feet in elevation. 11. Property owners within 350' of the request have been notified and staff have received no comments regarding this request. The petitioner has indicated in their correspondence that the adjacent neighbor to the north, who is most impacted by the air conditioner, has verbally indicated that they have no problems with the location of the unit, and the neighbor has also submitted a letter of support to let the air conditioner remain in place. ANALYSIS 1. The purpose of a variance is to permit relief from strict application of the zoning code where undue hardships prevent reasonable use of property and where circumstances are unique to the property. A hardship may exist by reason of narrowness, shallowness, or shape of property or because of exceptional topographic or water conditions. The hardship cannot be created by the property owner and if the variance is granted, it should not alter the essential character of the neighborhood or unreasonably diminish or impair property values in the neighborhood. 2. "Undue hardship" as used in connection with the granting of a variance means the property in question cannot be put to a reasonable use if used under conditions allowed by the official controls, the plight of the landowner is due to circumstances unique to his property not created by the landowner, and the~variance, if granted, will not alter the essential character of the locality. Economic considerations alone shall not constitute an undue hardship if reasonable use for the property exists under the terms of the ordinance. 3. Additional criteria to be used in considering requests for a variance includes the following and the Planning Commission/City Council shall make findings that the proposed action will not~: A. Consistent with Purpose of Variance. Be contrary to the purposes of a variance. B. Light and Air. Impair an adequate supply of light and air to adjacent property. C. Street Connections. Unreasonably increase the congestion in the public street. D. Public Safety. Increase the danger of fire or endanger the public safety. E. Property Values. Unreasonably diminish or impair established property values within the neighborhood, or in any other way be contrary to intent of City Code. 4. City Code prohibits buildings and equipment within a "required setback" area, but allows some exceptions or permitted encroachments into the required setback areas, per the attached code excerpts. The code does not allow new air conditioning units to be located in the required side yard setback. 5. In 1992 the Planning Commission recommended that the City Council approve an ordinance amendment to the section of the City Code regulating air conditioner setbacks. The amendment addressed the replacement of air conditioning condensers currently located in side yards as non-conforming uses, not the installation of new units, therefore, the amendment is not applicable to this situation. 6. The two basic reasons for the ordinance are: A. Noise problems are sedous when sleep disruption occurs and health is impacted. The noise ordinance severely restricts nighttime noise levels in residential areas between the hours of 10 p.m. and 7 a.m. With nearby adjacent buildings and a noise source on the ground, there is the potential for both direct and reflected noise. Placing air conditioning condensers between the end walls of adjacent homes has been a source of conflict in the City, unless one home had the garage wall adjacent to the source. B. Aesthetic problems with equipment viewed from the front street is unsightly. This concern can be resolved with shrubbery or a decorative fence/enclosure between the equipment and the street or around the unit. I~,~anning Case 97-17 Page 3 7. The Design & Review Committee met with the ~etit!0ner on August 14 and the discussion centered on whether it was possible to move the new unit to another location on the property; either the rear yard on the west or the wider side yard by the garage on the south. The petitioners indicated they did not feel the unit could be moved around the corner to the rear yard because of the existing deck, water spigot, and bedroom windows. If the unit was moved to the south, the line would need to run through the existing garage, which has a finished interior. Moving the unit to the south would also interfere with a future garage expansion. The petitioners indicated that they would like to pursue the variance request to keep the unit in its existing place and stated that the old window air conditioner was located on the north side of the house. The petitioner stated that there is a hedge along the front yard which screens the unit from the street and the yard is fenced. The majority of the Committee was generally receptive to letting the petitioner keep the unit where it was presently located and requested that a more detailed site plan and lower level floor plan be submitted. These items were submitted subsequent to the Committee meeting along with additional correspondence and are attached. 8. The petitioners state their reasons why they cannot place the air conditioner in the backyard. "There are only two locations in the backyard which could accommodate the air conditioning unit; between the two bedroom windows and in the S.W. corner of the building. My primary concern for the first location is its proximity to our children's bedroom window. I strongly believe it would block the access to or from the window in case of an emergency. The corner location is additionally undesirable since it is our intention put in a below grade second garage. The placement of the A.C. unit would be in very close proximity to the excavation hole requiring the unit to be moved. I do not want to move the unit to a place where it will need to be moved again. In either location the piping and electricity would need to be run through the~jarage or through the finished basement. Locating the piping through the garage would not be practical since it is our intention to improve the insulation within the existing garage. Putting the unit in the backyard, in either location, would require the piping and electricity to be run within the garage. This would need to be removed pdor to commencement of any work. The only other option would be to run the piping through the finished basement. This would result in the contractor having to drill holes in the basement ceiling to negotiate through the insulation, the I beam, and or joists. Prior to placing the unit in its present location, I regraded and laid drain tile on the north side of the house. This was done to move water away from the area and in part to establish a good foundation for the A.C. unit. The regrade reduces movement of the unit by frost, excessive wet soils, and so on. It additionally provides an aesthetically pleasing and debris-free location. Moving the unit to the backyard would invoke proper grading on that side of the house. Furthermore, if the unit was moved to another location, we would be left with holes in three sections of our siding. The steel siding was put on the house about 30 years ago. It would be impossible for the contractor to replace those sections of siding due to a difference in color and material. That means the contractor would need to patch those holes. This would be unsightly, and questionable in keeping out moisture, ultimately having a negative affect on the selling price of the house." 9. The petitioner further states "The purpose of the ordinance is to eliminate or reduce noise from A.C. units which may disturb neighbors. I believe in the spirit of the ordinance. However, in our case it would not seem to apply. We asked our neighbors, the Reeds, both pdor to and after the installation of the A.C. unit, if there was any problem with its location. At no time have they indicated any problems including noise or any other concerns. After our unit was in place, the Reeds purchased a unit of their own and placed it across from ours in their side yard. Any noise they might hear is more likely from their own unit. Modern air conditioners today run quieter than the older units. Ours, as well as the Reeds, is no exception. We understand the City's frustration between their ordinances and people doing work without a permit. When we were looking at possible locations, we had no knowledge of any ordinances which may apply and expected Standard Heating and Air Conditioning to inform us of areas where the unit could not or should not be placed. They did not inform us of any violations. After the unit was in place and operating propedy we contacted the City as required. At which point we determined that a permit was not applied for and consequently we were in violation of an ordinance. If it is the City's belief that we were trying to avoid Planning Case 97-17 Page the ordinance violation, we obviously would have not contacted the City for an inspection. We were in good faith. The placement of the unit lies solely on the responsibility of the contractor. However, if the City feels the need to force Standard Heating and Air Conditioning to move the A.C. unit to "punish" the contractor, I would like to remind the City that we the home owner would be the "punished" party. The moving of the air conditioner would require me to grade that side of the house, have patching in the siding, as well as possibly in the basement ceiling, placing the unit in a less desirable location, and ultimately requiring it to be moved again. It is our hope that the City is able to see the situation in which we find our,~:.elves. We are between a contractor who is negligent and the City ordinances. Unfortunately, we are the party who is bearing the brunt of the consequences." 10. While the Zoning Ordinance, in most cases, requires a "non-economic hardship" in order to qualify for a variance, in this particular situation staff does sympathize with the property owner and suggests that the Commission consider the following summarized points: A. The contractor is at fault in this situation, not the homeowner. B. The adjacent neighbors support the granting of the variance. C. There is no reasonable place to relocate the air conditioner without substantial expense. D. The unit is screened from the street with a hedge. E. The adjacent home to the north is not parallel to this home, but is placed at an angle on a corner lot. F. A window air conditioner was previously located in the north side of the house. G. The unit is not located in the drainage utility easement. H. Per the attached research, previous variances have been granted for side yard air conditioners. 11. In this particular situation, staff is recommending approval of the variance request based upon the above-stated facts. 12. The Building Official has also recommended that the Commission may also want to consider a code amendment in the future that would permit side yard air conditioner installations, regardless of the yard width, subject to: A. Mechanical permits for the side yard units must include an automatic setback thermostat, and B. Maintain the integrity of the noise ordinance by requiring property owners with side yard units to set the auto thermostat to shut off cooling between 10 p.m. and 7 a.m. C. Require appropriate screening. RECOMMENDATION Staff recommend approval of a variance to allow an air conditioner/condenser in the north side yard, subject to the following conditions: 1. Contractor to pay double fee for permit. 2. Two shrubs to be planted on "street side" of air conditioner to improve screening from street. Attachments: Address/ZoningFFopo Maps 8/7 Petitioner Correspondence Property Survey Permit Applications 8/22 Petitioner Correspondence & Letter of support from neighbor Basement Floor Plan Detailed Site Plan Photos Code Excerpts Research on Previous Side Yard Air Conditioner Variance Applications COOPER HIGH SCHOOL 4.STH AVE. N. · 47t~47 I"/ 470~ [47 ~ 47 TH. AVE-. N. NEW HOPE ELEME NTAI~Y DEL SCHOOL c,v c CITY HALL ~13 o./ ~ T Ko ~ . ~ ~oo ROAD AVE: 48TH AVE. CIR 47 4~40 4t,41 ~ 4~:~ AVE. PARK 45 AVE'~ 'T~. [ C 4'%01 4~ol R-O ~J ~,vE N [ I~-0 4ZTH AVENUE NORTH {3 {3 : ; PARK ~ ~ · x, 928.5 X 931.2 DEL {3 DRIVE X 928.8 ---~'~ {3 {3 9: {3 X {3 8.5 NUE X {3 {391{ {3 <3 {3 CASWELL ENGINEERING CO. Registered Professional Engineers and Land Surveyors CERTIFICATE OF SURVEY Ph '' one ~-r. ' f I-' cJ I CERTIFY THAT I ~ THE PROPERTY OWNER OR OWNER'S REPRESENTATIVE AND THAT THIS PLAN I$ COMPt. ETE AND ACCURATE~ . PLAT, PLAN APPROVED ~,~ .U~D~N~ ~S~C~'O~ YlLLAGE OF NEW HOFZ DATE I hereby certify that this is a true and correct representation of a survey of the boundaries of the land described above. It does not purport to show improvements on encroachments, if any. As surveyed by me this " day of ..... =./~ / , *._.. .............. 1 9 ~.. ~',,;'. File No._\m,~,~t_%. ~ook CASWELL ENGINEERING CO. by / ~ . , ' r . / .,/':..:: · / N ~ ;':" Minnesota Registr~tfono o._~ .- = ............... X 928.8 .3 ~ X X 928.5 0 X 916.2 920 Cl-, ¢ OF NEW HOPE 4-;C1 Xylon Avenue North New Hope Minnesota 55428 612) 531-5t27 PERMIT PERMITTYPE: Permit Num0er: Date Issued: SITE ADDRESS: :,.; . ;'..i; DESCRIPTION: ,----.~ 'F .; A.~'- .i., ,': ':-:7'. ~ ." T.-: ,' ,".¢.,:-, r '.- FLUF 5-; [.Z;E S"' S ,Mfi;<E ....... "" Y ARKS: FEE SUMMARY: CONTRACTOR: -.- AF-,~,I i c ant -- :.:.;T,.'~hii'DAi?C, i.iTG .7 AC: 2. i '$ ~iE:~./i" L.¢'.,~::iE :~'~-.'.:-' i..:3 f' { ..-'~:.: ::_..S Z(~S-299:'_-: OWNER: TOOO & .lOAN L. EWi:-3 i;:,i 7 '"'"" ..... '" L.'r' U i..?m N~ZW H-'.".-, F' E-[ APPLICANT P£h; !' :-EE SIGNATURE r- F..,ntVll I 4401 Xylou Avenue Nort~ S31.$127 Owns' CoaL~c~or 410 W=3T Electrician Address Cd' ctiJ~-ent ~aa above, include C~tT, State, Zip) Adctress (~nciude City, State, Zip) Atldress (inciude City, State, Zip) P~lone P~one PPflone Class of Work New Altara~on Ventilation (03) E~mat~l Completion Date G~ Piping (04) Roof Top Units (05) Number:. larpec~on Sch~uled: Yes No Infi-tved Heaters (0~ Numbe~. Herring System (01) Residential under C~ntral ~Lr (02) Comme.~itl u~der (OS) ~ Value of work inducting labor:. Under $ 500 501 - 1,000 1,001 - 5,000 5,001- 10,000 10,001- 25,000 25,001- 50,000 50,001 and over 25.00 (Residential) $ 40.00 (Commercial) 25.00 plus 2.50% of amount over $ 500 or MJn Commercial 35.00 plus 2.25% of amount over $ 1,000 or MiD Commercial 12~.00 pins 2.00% of amount over $ 5,000 22S.00 plus 1.7S% of amount over $ 10,000 490.00 plus 1.~0% of amount over $ 25,000 875.00 plus 1.25% of amount over $ 50,000 Approved by: Date Approved: **'Chimney stack verification must be mbmitted for residential furnac~ replac~ests Separate petters are This p~mJt Dull and void if work or construction authorized i~ not is suspmded or abandoned for a period of 180 clays at any time :rnaor Signature: Homeowner. Builder $1gaztur~ Date of Application: D~te of Application: 4.032 (3) DO NOT INSTALL EQUIPMENrr IN SIDE YARDS! Permit Fe~ State Surehargw .000~ x Value of Work ($.$0 Min.) Tottl Fees I~e Upon Application: Notations: ate License #: Date: I:CM ITSLgSM ECl-LAP L2,'94 Dear committee members, This letter is in response to design review meeting held on 8-14-97. Parties present were Doug Sanstad, ~irk MacDonald, three members of the [~lanning Committee, three staff members, and Joan I,ewis. I want to take this opportunity to address our reasons why we cannot place the air conditioner in the backyard, and it is our hope that the city would come to the same conclusion. There are only two locations in the backyard which could accommodate the air conditioning unit; between the two bedroom windows and in the S.W. corner of the building. My primary concern for first location is its proximity to our children's bedroom window. I strongly believe it would block the access to or from the window in case of an emergency. For example it would impede fire fighters in the possible rescue of our children or future homeowners children if there was a fire. The corner location is additionally undesirable since it is our intention to put in a below grade second garage. The placement of the A.C. unit would be in very close proximity to the excavation hole requiring the unit to be moved. I do not want, or should not be required, to move the unit to a place where it will need to be moved again. In either location the piping and electricity would need to be run through the garage or through the finished basement. Locating the piping through the garage would not be practical since it is our intention to improve the 2 insulation within the existing garage. Both of the south bedrooms are located over the garage and are very cool during the winter months. Doug Sanstad suggested, and I plan to implement, lowering the garage ceiling to accommodate additional insulation between our bedroom floors and the garage ceiling. We also plan to remove and replace the existing garage floor slab and insulate the walls. Putting the unit in the backyard, in either location, would require the piping and electricity to be run within the garage. Naturally this would need to be removed prior to commencement of any work. I would be required to rewire and replace the freon, not inexpensive material, plus I would be required to bring in additional trades and bare additional cost to perform that function. The only other option would be to run the piping through the finished basement. This would result in the contractor having to drill holes in the basement ceiling to negotiate through the insulation, the I beam, and or joists. T~rior to placing the unit its present location, I regraded and laid drain tile on the north side of the house. This was obviously to move water away from the area and in part to establish a good foundation for the A.C. unit. The regrade reduces movement of the unit by frost, excessive wet soils, and so on. It additionally provides an aestheticly pleasing and debris-free location. Prior to purchasing the house, our home inspector deemed the grading around the house as "inadequate" Moving the unit to the backyard would invoke proper small task. grading on that side of the house, no Furthermore if the unit was moved to another location we would be left with holes in three sections' of our siding. The steel siding was put on the house about 30 years ago. It would be impossible for the contractor to replace those sections of siding due to a difference in color and material. That means the contractor would need to patch those holes. This would be unsightly, and questionable in keeping out moisture. Ultimately having a negative affect on the selling price of the house. The purpose of the ordinance is to eliminate or reduce noise from A.C. units which may disturb neighbors. I believe in the spirit of the ordinance. However, in our case it would not seem to apply. We asked our neighbors, the Reeds, both prior to and after the installation of the A.C. unit, if there was any problems with its location. At no time have they indicated any problems including noise or any other concerns. After our unit was in place, the Reed's purchased a unit of their own and placed it across from ours in their side yard. Any noise they might hear is morelikely from their own unit. Modern quiter than the older units. no exception. Air conditioners today run Ours, as well as the Reeds, is We understand the city's frustration between their ordinances and people doing work without a permit. When we were looking at possible locations we had no knowledge of 4 any ordinances which may apply and expected Standard Heating and Air Conditioning to inform us of areas where the unit could not or should not be placed. They did not inform us of any violations. After the unit was in place and operating properly we contacted the city as required. At which point we determined that a permit was not applied for and consequently we were in violation of an ordinance. If it is the city's belief that we were trying to avoid the ordinance violation, we obviously would have not contacted the city for an inspection. We were in good faith. The placement of the unit lies solely on the responsibility of the contractor. However, if the city feels the need to force Standard Heating and Air Conditioning to move the A.C. unit to "punish" the contractor, I would like to remind the city that we the home owner would be the "punished" party. The moving of the air conditioner would require me to grade that side of the house, have patching in the siding as well as possibility in the basement ceiling, placing the unit in a less desirable location, and ultimately requiring it to be moved again. It is our hope that the city is able to see the situation in which we find ourselves. We are between a contractor who is negligent and the city ordinances. Unfortunately, we are the party who is bearing the brunt of the consequences. ~ Todd and Jo · Dear Committee Members, Prior to installing a central air conditioner, Joan and Todd lewis contacted us, their neighbors, and discussed the possibility of locating it in their north side yard. We assured them it would not be a problem. After they installed their unit, we installed a new air conditioner in our south side yard, directly across from their unit. Their unit was installed in Nay and has not been a problem for us in any way. It has been an improvement over the noisy window unit used previously. We are in support of keeping the air conditioner in its current location in their north side yard. If you have any questions or concerns feel free to contact us. Sin~cerely, , ? Tom and Ellen Reed 4625 Del Drive New }{ope, MN. 55428 ~0 )WNER ,,T THIS PLAT, PLAN_ APPROVE BY~ ,~.,, ~',,-,~,,.,,,,'~. .BUILDING INSPECTO? - ylLLAGE OF NEW HOF building line. Air~ conditioning cooling structures or condensers located within a required side yard at the effective date of tn~s section may lawfully continue and may be replaced at suc~ a location provided the Following conditions are met: (il The cooling structure or condenser shall not produce noise levels contrary to §§9.423 and 9.424 o~ this Code. (i~) The COoling structure or condenser shall be screened by landscaping, Fencing, or other means rendering it conceale~ From view From adjacent property. (iii) The cooling structure or condenser shall not lie ~ithin a required drainage and/or utility easement. (Code 072~84, Ord. 84-3, 92-17) (9) Exterior Storeea. AIl materials and equipment, except &s specifically authorized elsewhere in this Code, shall be stored within a building or fully screened so as not to be visible from adjoining properties, except for the following: (al Clothesline pole and wiree (b) Recreational equipment and vehiclee (c) Construction and landscaping m&terial currently being ~sed on the premises. (d) 4.034 O~-st~eet parking of ~assenger vehicles and trucks not exceeding a gross weight o~ 12,000 pounds in R-l, ~-2~ a-3 and E-4 Districts. Yard Requirements. (1) (2) Purpose. This section identifies minimum yard spaces, exceptions, and areas to be provided fo~ in each zoning district. Minimum is Require~. No lot, yard o~ o~Aer open space shall be ~educed in area or dimension so as to Bake such lot, ~ard or open space less than the minJ3num required by ~hie Coda, and if an existing ~a~d or o~her o~n s~ce ~o ~eso ~an ~he n~n~n~ requ~, ~ shall no~ ~ ~u~he~ r~uc~. Ho r~ulred open space p~ov~ded a~u~ any building o~ s~ruc~ure shall be ~nclod~ as a ~ se any open s~ce ~u~ ~or an0~her s~uc~u~e. (3) Setbacks. All setback dia,&ncaa, aa listed in ~e ~ubla below, shall be measured from ~he appropriate lo~ line. Front Yard Side Yard Rear Yard R-1 . 30ii(a) (b)(c) R-2 30(a) (b)(c) R-3 30 20 R-4 35 20 ~-S 3S 20 R-O 35 10(~). 8-1 35(a) lO(b) 8-2 3S(a) lO(b) 8-3 35 lO(b) B-4 35 I-i 50 20 I-2 SD Permitted ~.=roachments. This subsection is not intended to effect or ~.~l<e nonconformin~ any existing building, structure or use. Accord'ngly, the followLng provisions shall pertain to new construction only. The following structural elements or equipment shall not be considered as encroachments on yard setback requirements~ (a) fn all yards: chimneys, flues, belt courses, leaders, sills, pilasters, lintels, ornamental features, cornices, eaves, gutters, and the like provided they do not project more than two feet into a yard. In all Lards: terraces, steps, decks, stoops or similar ~a~'~es ~ided they do not extend above the height of the ground floor level of the principal structure or to a distance less than two feet from any lot line. 9.423 9.424 (c) In rear ~ recreational and laundry drying equipment, ~bors and trellises, balconies, breezeways, open porches, decks, detached outdoor living rooms, garages, and air conditioning or heating equipment. Porches, outdoor living rooms whic~ become closed in and attached to the dwelling subsequent to initial construction of the principal dwelling shall not remain exempt from yard setback requirements. (Ord. 79-1L, 84-3) Receivin~ Land Use Standards. Maximum Noise Levels by Receiving Land Use Districts. No person shall operate or cause or permit to be operated any source of noise in such a manner as to create a noise level exceeding the limit set in Table 1 for the receiving land use category specified when measured at or within the property line of the receiving land use. Table 1. Sound Levels by Receiving Land Use Districts Day Night (7 a.m. - (10 p.m. - lA p.m.) 7 a.m. ) Land Use Districts L10 L$0 L10 L$0 R-l, R-2, R-3, R-4, R-5, -R-0 65 60 $5 50 B~I, B-2, B-3, B-4 70 65 70 65 Z-l, Z-2 80 75 80 75 The limits of the moat restrictive dis=Tic= shall apply at the boundaries between different land use categories. The determination of land use shall be by its zoned designation. (2) Exemptions. The levels prescribed in (1} above do not apply to noise originating on public street and alleys, but such noise shall be subject to other appl£cable ~ubsections of ~lis sect£on. Air Circulation Devices. No person shall permanently install or place any air circulation device, except a window air conditioning unit, in any ou~oor location until the noise control officer determines that the device in that location will comply with the maximum noise level standards prescribed above and issues a permit for the installation. The noise produced by any window unit and by any existing air circulation device shall be attenuated by means deemed appropriate by the noise control officer, including, but not limited to, relocation of such device, if the noise results in or contributes tO a violation of the maximum noise level standards. PLANNING CASES INVOLVING SIDEYARD VARIANCES TO ALLOW FOR INSTALLATIONOF AIR CONDITIONING UNITS: 1987 THROUGH 1997 · Planning Case Petitioners Staff Recommendation Planning Commission City Council 94-12 Request for Donald Ruch and Harold. Staff recommends Approval subject to the Approval subject to the variance to allow air Teigen approval, following condition: following condition: conditioning unit in side 3352 Boone Circle 1. Several shrubs be 1. Several shrubs be yard installed around the installed around the unit to screen it from unit to screen it from May 9, 1994 adjacent property, adjacent property. In Favor: Lifson, Sonsin, In Favor. Erickson, Otten, Zak, Underdahl, Cassen, Enck, Williamson, Wehling Gundershaug Against. None Against. None 94-07 Request to allow Michael Tiegler Staff recommends Approval subject to the Planning Case 94-07 was air conditioning 3432 Ensign Ave North approval subject to the following conditions: presented at 4/11/94 City compressor in side yard. conditions recommended 1. Submit detailed plans Council meeting but was by the Planning for "accoustical barrier" tabled for 2 months May 9, 1994 Commission. to be installed along because petitioner was not north side of present to answer equipment, questions. 2. Agree to install and maintain barrier within Petitioner requested that 14 days of installation. Planning Case 94-07 be 3. Agree to meet with City withdrawn from the agenda Building Official and since he found a way of neighbor to discuss the installing the air plan for noise barrier conditioning unit that and its colors at least complies with the city 14 days prior to ordinance. installation. 4. Fence to be extended to front of garage to shield compressor from street. In Favor. Underdahl, Zak, Sonsin, Cameron, Gundershaug, Cassen Against. None 08/25/97 PLANNING CASES INVOLVING SIDEYARD VARIANCES TO ALLOW FOR INSTALLATION OF AIR CONDITIONING UNITS: 1987 THROUGH 1997 Planning Case Petitioners ' Staff Recommendation Planning Commission City Council 92-29 Ordinance' ' N/A The intent of the Recommend to the Council Approved. amending New Hope amendment is not to force that a text amendment as Code Section 4.032 (3) (I) homeowners who want to outlined in Planing Case In favor. Erickson, Enck, regulating air conditioner replace/update existing air 92-29 be approved. L'Herault, Williamson, setback requirements, conditioning units located Often in the side yard to make In favor. Lifson, Zak, November 4, 1992 application for a variance, Sonsin, Underdahl, Against. None. but instead to allow side Cameron, Gundershaug, yard units currently in Cassen existence to remain in place and be replaced .** Against. None subject to certain conditions. 92-14 Request for John Leigh Building Official Approved subject to the Approved subject to the variance to allow air 8401 Hopewood Lane recommends denial of the following condition: following condition: conditioner in side yard. variance. Special Note: 1. That the existing 1. That the existing June 8, 1992 Staff would prefer to listen privacy fence or privacy fence or 1. This is an after-the-fact to the petitioner and comparable screening comparable screening application as an A/C affected neighbors before remain in place aslong remain in place aslong unit was installed recommending approval or as there is an air as there is an air before the permit was denial. Staff feels that the conditioner in the side conditioner in the side obtained by the privacy fence, consent yard. yard. contractor, letter from neighbor, and In Favor'. Underdahl, Zak, In Favor. Erickson,Enck, 2. The contractor who did previous location of a Sonsin, Cameron, Cassen, Otten, L'Herault, the installation failed to similar unit in the same Gundershaug, Watschke Williamson inform the owner of the place also needs to be notice on the taken into consideration. Against: None Against. None mechanical permit regarding placement in rear yards only. 3. The unit that was installed replaced a previous unit. 08/25/97 PLANNING CASES INVOLVING SIDEYARD VARIANCES TO ALLOW FOR INSTALLATION OF AIR CONDITIONING UNITS: 1987 THROUGH 1997 Planning Case Petitioners Staff Recommendation Planning Commission City Council 90-06 Request for John W. Hansen Staff recommends Approved subject to the Approved subject to the variance to allow air 8009 40th Avenue North approval, condition that existing condition that existing conditioner in side yard. screening (shrubs, plants) screening (shrubs, plants) remain in place. If it dies, it remain in place. If it dies, it April 9, 1990 needs to be replaced, needs to be replaced. In favor: Sonsin, Zak, In favor: L'Herault, Enck, Gundershaug, Watschke Otten, Erickson, Williamson Against. Cameron,Oja Against. None 89-13 Request for James B. Swedberg Staff recommends that the Approved subject to the air Approved subject to the air variance to allow an air 9317 Northwood Parkway City Council close the conditioning unit being conditioning unit being conditioner in side yard. public hearing and approve screened on all three sides screened on all three sides the resolution, with plantings, with plantings. June 12, 1989 In favor. Zak, Cassen, In favor. Daly, Otten, Oja, Sonsin, Cameron, Enck, Erickson, Williamson Gundershaug, Watschke Against. None Agains~ None 87-14 Request for Sally Kolian Staff recommends Approved subject to the Approved subject to the variance in the required 3231 Flag Court approval, condition that the air condition that the air location of accessory conditioning unit be conditioning unit be equipment, screened, screened. June 8, 1987 In favor. Lutts, Anderson, In favor. Erickson, Enck, Sonsin, Friedrich, Oja Otten, Williamson Cameron, Gundershaug, Against. None Against: Edwards 08/25~97 Memorandum To: Planning Commission Members From: Kirk McDonald, Management Assistant/Community Development Coordinator Date: August 29, 1997 Subject: Miscellaneous Issues NOTE: The purpose of this miscellaneous issues memo is to provide commissioners with additional detail on CouncillEDA actions. It is not required reading and is optional information provided for your review, at your discretion. 1. August 11 Council Meeting - At the August 11 Council meeting, the Council took action on the following planning/development/housing issues: -- A. Project #603, Motion Authorizing Staff to Negotiate with Property Owner for Potential Acquisition of 781317819 Angeline Drive: Approved, see enclosed Council request. B. Resolution Accepting Easement from J.S. Winnetka, Inc. for 7300 49m Avenue North: Approved, see enclosed Council request. C. Planning Case 97-16, Request for Comprehensive Sign Plan Approval, 5621 International Parkway: Approved as recommended by the Planning Commission, see enclosed Council request. 2. August 25 CouncillEDA Meetings - At the August 25 Council/EDA meetings, the Council/EDA took action on the following planning/development/housing issues: A. Resolution Awarding Contract to Morcon Construction, Inc. for New Hope Athletic Fields Park Shelter Roof Renovation in the Amount of $13,831' Approved, see attached Council request. B. Project #589, Motion Approving Quote by Tim's Tree Service in the Amount of $1,750 for Tree Removal at 5212 Winnetka Avenue: Approved, see attached Council request. C. Project #600, Public Hearing - An Ordinance Establishing a Housing Improvement Area for the Sandpiper Cove Townhome Development, Pursuant to Minn. Stat. §428A: Tabled until the October 13 Council meeting, see attached Council request. D. Project #474, ResOlution Authorizing Commencement of Eminent Domain Proceedings to Acquire Property at 7500 42"d Avenue: Approved, see enclosed EDA request. 3. Codes & Standards Committee - The Committee did not meet in August. The next scheduled meeting date will be September 24. Continuing items include: pawn shop/second hand goods dealers, real estate sign regulations; and DNR shoreland regulations. Staff is also requesting that the Committee undertake a study of accessory buildings and garages this fall, per the direction from the City Council. I will be coordinating a meeting with the City Attorney, Building Official and Planning Consultant to determine the specific ordinances that need to be reviewed prior to the time that a report is prepared for the Committee. 4. Design & Review Committee - The Committee met in August on the air conditioner variance. Comprehensive Plan Update Committee - The Committee conducted its first meeting on August 12 and will be meeting! again on September 18. Attached is the schedule for the Comprehensive Plan Update and pertinent information reviewed at the first meeting. 6. Project Bulletins - Enclosed are project bulletins mailed this month to residents on City projects, including Corner Park improvements and backyard drainage improvements. 7. October Planning Applications - It is anticipated that the City will be receiving applications from the following petitioners for consideration at the October Planning Commission meeting: A. ARC CUP application for outdoor storage at Midland Center B. Alano CUP amendment for hours of operation 8. Miscellaneous Articles - Enclosed are several articles from Zoning News and Zoning Bulletin for your information. Attachments: 7813/7819 Angeline Drive 7300 49"' Avenue Easement Comprehensive Sign Plan for LDI New Hope Athletic Fields Park Shelter 5212 Winnetka Avenue Sandpiper Cove Townhome Development 7500 42nd Avenue Comprehensive Plan Update Schedule Project Bulletins Miscellaneous Articles REQUF T FOR ACTION Originating Depa~-t~ent Approved for Agenda Agenda Section City Manager Consent Stephanie Olson Item No. By: Gommunity DeYelopment S0e¢ialist By:. 6.6 MOTION AUTHORIZING STAFF TO NEGOTIATE WITH PROPERTY OWNER FOR POTENTIAL ACQUISITION OF 7813/7819 ANGELINE DRIVE (IMPROVEMENT PROJECT NO. 603) On June 6 the City Council authorized staff to obtain appraisals for the properties at 7813/7819 Angeline Drive. BCL Appraisals, Inc., the Iow bidder, completed the appraisals. The fair market value for 7813 Angeline Drive is $17,700 and, for 7819 Angetine Drive, is $13,700. The estimated total value for both properties is $31,400. It is the opinion of City staff and the City Attorney that the appraisals accurately reflect the value of the properties. The first property, 7819 Angeline Drive, is located at the southeast corner of the intersection of Winnetka Avenue and Angeline Drive. The second property, 7813 Angeline Drive, is adjacent to the east of the first property. The lot size of the properties are approximately 10,300 sq. ft. and 10,220 sq. ft., respectively. The vacant properties are located in the R-1 Single Family Residential Zoning District and are surrounded by homes to the north and east, railroad tracks to the south, and Limited Industrial, across Winnetka Avenue, to the west. In order to continue providing alternative housing options within New Hope, staff considers this to be an ideal location for a handicap accessible twinhome, similar to the twinhomes previously built. Staff has discussed the possibility of a joint venture with CommonBond and other non-profit agencies. In addition drainage issues associated with the railroad could be corrected at the time of new construction. If the City acquires the properties, the following funding sources may be used: TIF funds, EDA funds CDBG Scattered Site Housing funds, and 1997 HOME funds. In addition, the City has been awarded a grant from the Minneapolis Area Association of Realtors, in the amount of $1,500, to be applied toward construction costs. (cont'd.) MOTION BY SECOND BY TO: Review: Administration: Fina. nce: RFA-O01 ~ Request for Action Page 2 Staff is recommending authorization to negotiate with the property owner. Once a mutually agreed upon sale price has been determined, staff will return to City Council requesting approval of a purct~ase agreement, contingent upon the results of soil borings completed on the properties. Staff recommends the City Council approve a Motion Authorizing Staff to Negotiate with Property Owner for Potential Acquisition of 7813/7819 Angeline Drive. k COUNTY WINNETKA ELEMENTARY SCHOOL 55TH ST ~OAO aROVE, PARK~ AVE N ST. RAPHEL CATHOLIC CHURCH 55R0 · 5~ '~ SAU ~.T J REQUF. T FOR ACTION Originating Department Approved for Agenda Agenda Section City Manager ~ Consent 8-t 1-97 Item No. Kirk McDonald By: Management Assistant By:. 6.7 RESOLUTION ACCEPTING EASEMENT FROM J.S. WINNET,KA, INC. FOR 7300 49TM AVENUE NORTH The enclosed resolution accepts an easement from J.S. Winnetka for the relocated storm sewer at 7300 49t" Avenue North (Hoyt development). There is also a vacation proceeding for the old easement that will be completed in the near future. The enclosed resolution has been prepared by the City__Attorney and accepts the replacement easement. Staff recommends approval of the resolution. MOTION BY SECOND BY TO: Review: Administration: Finance: [ RFA-O01 ~ RESOLUTION NO. 97- . RESOLUTION ACCEPTING EASEMENT FROM JS WINNETKA, INC. FOR 7300 49T" AVENUE NORTH BE IT RESOLVED by the City Council of the City of New Hope as follows: WHEREAS, JS Winnetka, Inc. is the owner of certain property located at 7300 49~n Avenue North (the Property) in the City of New Hope, and WHEREAS, the Property is being developed with the construction of an office/warehouse, as part of Planning Case No. 97-06, and WHEREAS, the development of the Property involves the relocation of' an existing storm sewer easement, which requires an easement from the owner of the Property to ensure the City's access to said relocated storm sewer for construction and maintenance, and WHEREAS, JS Winnetka, Inc. has granted the City a utility and drainage easement (the Easement), a copy of which is attached as Exhibit A and incorporated herein, and WHEREAS, the Easement contains duties and obligations on the part of the City, and WHEREAS, it is in the best interests of the City to accept the Easement. NOW, THEREFORE, BE IT RESOLVED: 1. The City hereby accepts the utility and drainage easement from JS Winnetka, Inc. attached hereto as Exhibit A. Dated the 11 ~" day of August 1997. W. Peter Enck, Mayor Attest: Valerie Leone, City Clerk PERMANENT EASEMENT['~rR'~2ONSTRUCTION AND MAINTENANCE OF PUBLIC IMPROVEMENT THIS INDENTURE, executed on the ~ day of .J%~ 1997, between J S Winnetka, Inc., a Minnesota corporation (here~n "First Party") and the City of New Hope, a Minnesota municipal corporation (herein "City"). WHEREAS, First Party is the fee owner of real property (hereinafter "Property") located in Hennepin County Minnesota legally described as: ' , Lot 2, Block 1, Five Thousand Winnetka 2nd Addition according to the recorded plat thereof, ' WHEREAS, the City is desirous of obtaining permanent utility and drainage easements over, under and across the portions of the Property described below, and WITNESSETH; That the First Party in consideration of the-Gum of One Dollar ($1.00) and other good and valuable consideration to it in hand paid by the City, the receipt whereof is hereby acknowledged, does hereby grant, bargain and convey unto the City, its successors and assigns, forever, the permanent easements described below, including full and free right and authority to enter upon the permanent easements described below and to make such use of said permanent easements as is reasonably necessary and advisable in the construction, maintenance and operation of utility and drainage facilities over, under, and across said permanent easements. The permanent utility and drainage easements herein granted are over, under and across that portion of the Property described as follows: That oart of the Property lying 10.00 feet on each side of the following described line: Commencing at the Southeast corner of the Property; thence North 35' 25' 40" East, along the Southeast line of the Property, a distance of 175.12 feet to the point of beginning; thence North 01° 29' 55" West a distance of 51.95 feet; thence North 54° 34' 00" West a distance of 217.63 feet; thence North 35° 10' 04" East a distance of 298.35 feet; thence North O0° 16' 49" West a distance of 219.19 feet and there terminating. EXHIBIT A Also that part of the Property lying northerly of the fo~}Owing described line' Commencing &t the Southwest corner of the Property; thence North 0° 19' 06" West, along the West line of the Property, a distance of 596..85 feet to the point of beginning; thence East a distance of 90.79 feet; thence North 35' 25' 40" East, a distance of 286.96 feet; thence North 80' 20' 01" East a distance of 246.03 feet; thence South 54° 34' 20" East a distance of 227.40 feet to the Southeast line of the Property and there terminating. J S Winnetka, Inc., a Minnesota Corporation By: Its: STATE OF M~NNESOTA ) ) ss, COUNTY OFg,~~'T~t~ ) this ~0'~"- day of ¢~dN~he foregoing was acknow%e~g, ffd before ~e 1 997, by J~f/~0L~"~ A. //¢~ 'J'- and ' theV~¢; ~tb~ an~ ' on respectively, of J ~ Winnetka, Inc., a Minnesota corporation, behatf of said corporation. ~ This Document was Drafted by: CORRICK & SONDRALL, P.A. 8525 Edinbrook Crossing, #203 Brooklyn Park, MN 55443 (612) 425-5671 99,11187 2 COUNCIL REQUEST FOR ACTION Originating Depaz13'nent City Manager Kirk McDonald Management Assistant Approved for Agenda 8-11-97 A~enda Section DeveTopment & Planning Item No. PLANNING CASE 97-16_. REQUEST FOR COMPREHENSIVE SIGN PLAN APPROVAL, 5621 INTERNATIONAL PARKWAY, LIBERTY DIVERSIFIED INDUSTRIES, INC., PETITIONER Liberty Diversified Industries operates its business out of its headquarters building located at 5600 Highway 169. They are also the owners of the building at 5621 International Parkway, north of and adjacent to this site, and are requesting Comprehensive Sign Plan approval to allow the installation of ground and wall signs identifying the occupants of the building. There are three different tenants in this building: 1) LDI Fibres; 2) Safco Warehouse; and 3) Diversi-Plast Manufacturing. The purpose of this application is to place signs on the property identifying the current tenants/companies that are occupying the building. These signs will- replace the present sign, which inaccurately lists the identity of the companies at this address. The 5621 International Parkway building is located between International Parkway and the Highway 169 Frontage Road near the intersection with Bass Lake Road. The property was developed in 1971 with an 81,000 square foot warehouse. Capp Homes was the odginal tenant, followed by Owens Corning ancl Harry Blumenthal & Sons. The building has had from one to five tenants in the past. The property is located in an I-1, Limited Industrial, Zoning District and is surrounded by I-1 properties. The New Hope Sign Code states that "when a single principal building is devoted to two or more businesses, or industrial uses, a comprehensive sign plan for the entire building or shopping center shall be submitted. The effect of said comprehensive sign plan is to allow and require the owner of multiple occupancy structures to determine the specific individual sign requirements for the tenants of his building. As sign locations and size, etc. may be of some significant importance in lease arrangements between owner and tenant, it is the City's intention to establish general requirements for the overall building only, thus providing a building owner with both the flexibility and responsibility to deal with his individual tenants on their specific sign needs." (cont'd.) MOTION BY SECOND BY TO: Administration: Finance: RFA-O01 Request for Action Page 2 Ground Sign The petitioner is proposing to install one (1) 4' x 7' (28 square feet) ground sign with three (3) 16-inch wide sections for the identification of three tenants on the front of the sign. Although there is room to identify three tenants, only two tenants are listed on the sign, as follows: Tenant #1 LDI Fibres, Inc. An LDI Company 5609 International Parkway The top line of the sign would be red letters and the bottom two lines would be black lettering. ..Tenant #2 Diversi-Plast Manufacturing An LDI Company 5633 International Parkway The top line of the sign would be blue letters and the bottom two lines would be black lettering. The rear portion of the sign (also 28 square feet) would contain the following message: "Please BUCKLE UP For Safety." The message would be in black lettering. The ground sign would be located just south of the north drive exits onto International Parkway near the north property line. The sign would be located 20 feet from the property line and would be parallel to International Parkway, with the tenant identification facing International Parkway and the safety message facing the parking lot. The sign would be a total o--]-'~feet in height and would be constructed of PVC waterproof plastic with vinyl lettering and mounted on aluminum posts painted white. The sign would not be illuminated. The ground sig~~ complies with the Sign Code area height and setback requirements. Wall Signs The petitioner is proposing to install three (3) business identification wall signs on the north side of the building (one for each tenant), as follows: Tenant #1 2' x 4' (8 square feet) Sign would read: LDI Fibres Lettering on sign would be red and would be mounted 15' below roof line above east entry door. Tenant #2 2' x 4' (8 square f~et) Sign would read; Safco Warehouse Lettering on sign would be blue and would be mounted 15' below roof line above center entry door. Tenant #3 2' x 4'(8 square feet) Sign would read: Diversi-Plast Manufacturing Lettering on sign would be blue and would be mounted 15' below roof line above west entry door. The wall signs would also be constructed of PVC waterproof plastic with vinyl letters and the signs would not be illuminated. The walt signs comply with the Sign Code area requirements. The Planning Commission considered this request at its August 5 meeting and recommended approval, subject to the following condition: 1. Appropriate permits be obtained from City prior to installation. Staff recommends approval of the resolution. COUNCIL REQUEST FOR ACTION Originating Depaxi,,ient Approved for Agenda Agenda Section Consen~ Parks and Recreation 8/25/97 Item No. By: Shari French ~ j~ 6.7 RESOLUTION AWARDING CONTRACT TO MORCON CONSTRUCTION, iNC. FOR NEW HOPE ATHLETIC FIELDS PARK SHELTER ROOF RENOVATION - $13,831 (IMPROVEMENT PROJECT NO. 602) Bids were received as follows on August 20, 1997 for the New Hope Athletic Fields park shelter roof renovation, project 602: Contractor Bid Morcon Construction, Inc. $13,831 JS Cates Construction $16,700 Jay Bros. $17,500 The Park ClP contains $24,810 for this project. Staff recommends that the contract be awarded to - the Iow bidder, Morcon Construction, Inc. for $13,831. The work will take place this late summer, early fall on the shelter building located south of the baseball field. MOTION BY SECOND BY " TO: Review: Admin/stratlon: Finance: RFA-001 Bonestroo Rosene Anderlik & Associates Engineers & Arcl'lltects Augast 20, 1997 Yaletie Leone City of New Hope 4~01 Xylon Ay N New Ho~e, MN 55428 Re: 49~ Avenue Lighted Field Building Renovation BRA File No. 34212 De, at Vel: B~ds were o ned for the project stated above on Wednesday, Au~St 20, 199I. Transmitted herewith are · 9e~- ....... ,--:-- ~,-- ,,,,ur information and file. Copi~ will als~ be distributed to each some copies o! me om ummauu- ,~,, :-, bidder. The following summarizes the results of the three bids received. -~ $13,831.00 Low ~on:a~ Caastz~ction. ~r2 LS. Cases Consmsct~on $t6,?00.00 #3 J&y Bros., L~c. ' ro'ect was Mmco~ Cansm~c~ion, ~nc. with ~ Base Bidlo~ St3,S3L00. 'The low b~dder on the p ~j ...... ,,,,,, ~-,.... ~.;a, ~,~,,,,_ k~en reviewed ~d t'o~d to compares w~ch c~e enB;mee~ es - -,_ _..,. .... ~.,., ~, ,,,d~d fo ~erce~t'~zfrm~do-, Inc..for be ia order, Therefore, we re~ommeaa ram m~ yrt,j,..o ,,- 41e_ -- Should you have any questions, please feeJ free to caU. Respectfully, BONESTROO, ROSENE, AlqDERLDC & ASSOCIATF, S, h~lC. Mark A. Hanson, P.E. MAH:pah:enc LL~:ON a0: t~ 9c~:OI, Z6/I,Z/gO REQUEST FOR ACTION Originating DepaxLu,ent Approved for Agenda Agenda Section City Manager Consent 8-25-97 Stephanie Olson Item No. By: Community Development Specialist ~ 6.12 MOTION APPROVING QUOTE BY TIM'S TREE SERVICE IN THE AMOUNT OF $1,750 FOR TREE REMOVAL AT 5212 WINNETKA AVENUE NORTH (IMPROVEMENT PROJECT NO. 589) At the July 28 City Council meeting, the City Council awarded the contract for rehabilitation Of 5212 Winnetka Avenue to Anton Construction, Inc. As part of the rehabilitation, existing siding, soffits and fascia will be replaced with new material. A 30" cottonwood tree is located on the east side of the house and staff is concerned about the potential damage this tree may cause to the home. Staff and the City Forester are currently developing a landscape plan for the property. As part of the plan, staff recommends removing a 30" cottonwood tree from the property. The tree removal would include removing the tree from the site, grinding the stump, removing the chips, and restoring the turf in the area. The City sent letters to several landscape contractors and received the following bids: FIRM QUOTE Crystal Tree Service $2,200 Tim's Tree Service $1,750 Staff recommends accepting the quote from Tim's Tree Service, the Iow bidder, for the tree removal, stump grinding, and restoration of the site. Once the garage is demolished, the landscaper will have access to the backyard and will remove the tree. After the tree has been removed, the rehab contractor will rebuild the garage. Staff recommends approval of the quote by Tim's Tree Service in the amount of $1,750 for 5212 Winnetka Avenue North (Improvement Project No. 589). MOTION BY SECOND BY TO: Review: ~mlrflstratlon: Finance: RFA-O01 ~ COUNCIL REQUEST FOR ACTION Originating Depa~i~ent Approved for Agenda Agenda Section Public City Manager Hearing Kirk McDonald ~ 8-25-97 Item No. By: Management Assistant By:../'/ 7. l / PUBLIC HEARING: AN ORDINANCE ESTA/BLISHING A HOUSING IMPROVEMENT AREA FOR THE SANDPIPER COVE TOWNHOME DEVELOPMENT, PURSUANT TO MINN. STAT. §428A (IMPROVEMENT PROJECT NO. 600) This is the public hearing to consider the adoption of an ordinance establishing a Housing Improvement Area for the Sandpiper Cove Townhome Development (Improvement Project No. 600). This matter was tabled at the July 28 Council meeting. Before the ordinance can be completed, an engineering analysis of the complex must be completed to determine the specific improvements that need to be m~ade to the properties because a description of the necessary improvements must be identified in the ordinance. The City has not received the engineering analysis and when it is received, staff wants it to be reviewed by the inspection's staff. Sandpiper Cove has informed the City that it will take until the first part of October to have the analysis completed, therefore, staff is recommending that the public hearing be continued until the October 13 Council meeting. At the June 9 Council/EDA meeting, staff discussed the option of the City establishing a Housing Improvement Area to provide financial assistance to upgrade the extedor of these prol:>erties. Sandpil;~r Cove is a townhouse development located at 8101-8953 42'~ Avenue that contains 36 owner-occupi~cl townhomes. The complex is 20 years old and there are significant extedor deterioration problems. The association has sought preliminary bids from contractors who estimated that $350,000 is needed to make siding, deck, window, and other improvements. They have approached the City for assistance because, as a townhouse association consisting of individual owners, they have been rejected by several banks for loans to make the needed improvements. At that meeting, the City Attorney outlined new legislation and procedures to initiate a program that would allow for City-funded loans to property owners unable to obtain financing through private means. Instead of securing the loans as a typical mortgage transaction, the City could assess the benefiting properties similar to a special assessment project. The Council was generally receptive to this idea and directed staff to proceed with the preparation of an ordinance. (cnnt'ct ~, MOTION BY SECOND BY TO: Review: Administration: Finance: RFA-O01 ~ Request for Action Page 2 8-25-97 The first steps to establish a housing improvement area are as follows: Initially, the Council would need to adopt an enabling ordinance specifically defining the improvement area or areas and specifically indicating the necessary improvements to be made within the area. The City cannot adopt this ordinance on its own initiative. Before such an ordinance can be considered, there must be a petition by at least 25 percent of the owners within the proposed area requesting the enabling ordinance. A petitioner with 28 out of 36 signatures (77%) was submitted at the June 9 meeting. Before adoption of the enabling ordinance, the City would need to conduct a public hearing. At the hearing and within the ordinance, the Council would need to make findings that the necessary improvements will not be made if the housing improvement area is not created and making the improvements within the area is needed to maintain and preserve the area's housing units. Further, the enabling ordinance will allow the City to impose a fee against the benefiting property owners to pay for the cost of the improvements. Notices have been sent notifying all of the property owners about this hearing. Staff recommends that the hearing be continued until September 22. ~Z 0..~ "~.4.-Z40 ELE~E SC~-C C CE riVE. / -" -- , ~ ~i , ,,. · .,~, '-. ~ _~.~ z'lj ': ~,~l .. Tr- -z: ~. .,l ' '": '.'~' , ..- o~, ~,., --- EDA ~ REQUEST FOR ACTION Originating Departu~ent Approved for Agenda Agenda Section EDA City Manager 8-2597 Item No. Kirk McDonald ~ 4 By:Management Assistant RESOLUTION AUTHORIZING COMMENCEMENT OF EMINENT DOMAIN PROCEEDINGS TO ACQUIRE PROPERT~ AT 7500 42ND AVENUE NORTH, IMPROVEMENT PROJECT NO. 474 The City Attorney has prepared the enclosed resolution which authorizes the acquisition of the Ardel Engineenng property by direct purchase or eminent domain. The acquisition of this property is necessary to proceed with the redevelopment of the properties north of 42" Avenue between Quebec Avenue and the railroad tracks. The City currently owns two out of the three parcels and the remaining parcel is located at 7500 42"d Avenue and is adjacent to the railroad right-of-way. -~ The City's most recent appraisal of the property dated May 28, 1997, which was completed by BCL Appraisals, indicated a fair market value of $344,000. If the EDA approves the acquisition, the City's offer by direct purchase would be for the appraisal amount. The EDA would also be required to provide relocation services and pay relocation expenses to Ardel Engineering, the current tenant of the property. Therefore, the enclosed resolution provides authority to retain a relocation expert to determine and pay these expenses as well as reasonable closing costs in the event a direct purchase is successful. A relocation expert is necessary to insure compliance with the Uniform Relocation and Assistance Act. Relocation expenses would be a minimum of $20,000. The resolution also provides for a "quick take" in the discretion of the City Manager. At this time, staff is not recommending the "quick take" procedure, but wanted to include it in the authorizing resolution in the event that the EDA needs this authority at a later date. The acquisition of the property and related relocation expenses would be paid for with 42"d Avenue TIF funds. Staff recommends approval of the resolution. MOTION BY SECOND BY TO: Review: Administration: Finance: RFAoO01 ~~l AUG~12-9?. TUE 16:~6 CORI~ICI~ & SONDRALL, P.A. ArroR~;YS AT I~w Edinburgh Executive Office l~-~ 8525 Edlx3b~'ook Crossing 5uitc #203 Brookly~ Pa~k, MlnrlcsorA 55443 P, 02/07 Augusl; 12, 1997 Kirk McDonald City o~ New Hope &401X¥]on Avenue North New Hope, MN 55428 RE: ACqUisition of Property at 7500 49nd Avenue North Our File: 99,11111 0ear Kirk: Please find encloses ~or consideration at the August 25th EDA Meeting a proposed resolution authorizing the acquisition Of the Ardel Engineering proper~y by direc% purchase or eminenb domain, AS yOU know, our latest appraisal of the property dated May 2@, 1997 done by BCL Appraisals indicated a fair m~rke% value of $344,OO0.00. ~ %he EPA approves the acquisition, our offer by dlrec= purchase would be for the appraisal amount. The EDA will also be r~quired to provide relocation services and pay reloca%ion expensem %o Ardel Engineering %he currenb ~enan% of ~he proper:y, As a result, the enclosed re~olution provides authority to re~ain a re~oca~ion exper~ ~o de%ermine and pay these expenses as well as reasonable closing costs in ~he even~ a direc~ purchase i~ successCul. These expenses could be complicated and eubstan%ia~ therefore a re~oca~ion exper~ ia necessary in ~his ma%bar ~o insure we comply wi%h Uniform Relocation aha Assistance Ac%. At a minimum, reloca=ion expenses will be $20,000.00. The resolution Sled provides fur' u "quick-%eke" in %he discretion of ~he C1=y Manager. A~ %his time [ am not recommending we use "Quick-take" procedure but wan~ed to include i~ in ~he authorizing resolution in :he event we decide we need this ~ubhori~y a~ a la:er da~e. AUG-12-97 TUE 16:~6 P. 03/O? Kirk McDonald Augus~ 11, 1997 Page 2. Please contaC= me i~ you have any questions aDou% this matter or the enclosed resolu%iun. Very truly yours, Steven A. SonOrall zltl enclosure Valerie Leone Dan Donahue EDA RESOLUTION NO. 97- RESOLUTION AUTHORIZING COMMENCEMENT OF EMINENT DOMAIN PROCEEDINGS TO ACQUIRE PROPERTY AT 7500 42ND AVENUE NORTH BE IT RESOLVED by the Economic Development Authority in and for the City of New Hope, Minnesota as follows: WHEREAS, the Housing and Redevelopment Authority in and for the City of New Hope (hereafter the HRA) was established and organized within the City of New Hope under authorization of New Hope Code §2.30 et. seq. and Minn. Stat. §462.415 et. seq., and WHEREAS, the HRA, acting pursuant to the authority of Minn. Stat. §462.415 et. seq. established Redevelopment Plan 85-2, Redevelopment Project 85-2 and Tax Increment Financing Plan 85-2 by adoption of HRA Resolution No. 85-08 on December 23, 1985, and WHEREAS, Minnesota Law 1987, C. 291 § 48, which repealed Minn. Stat. §462.415 et. seq. provided that all orders, resolutions, motions, plans and agreements and actions taken by any municipal housing and redevelopment authority organized or purported to be organized under Minn. Stat. §462.415 to 462.705 and Minnesota Law 1959 C. 545 § 1 to 19, and taken or purported to be taken by any 'governing body, city planning commission or political subdivision of the state or public state body with respect to plans and projects are hereby declared valid and effective, and WHEREAS, the New Hope City Council on December 23, 1985 approved the adoption of Redevelopment Plan 85-2, Redevelopment Project 85-2 and Tax Increment Financing Plan 85-2 by its Resolution No. 85-129, and WHEREAS, the Economic Development Authority in and for the City of New Hope (hereafter the EDA) was organized and established within the City of New Hope by Ordinance No. 89-7 adopted by the City Council on March 27, 1989 under authorization of Minn. Stat. §469.090 et. seq., and WHEREAS, the EDA was transferred control, operation and authority over Redevelopment Plan 85-2, Redevelopment Project 85-2 and Tax Increment Financing Plan 85-2 pursuant to HRA Resolution No. 89-4, City Resolution No. 89-73 and EDA Resolution No. 89-3, and WHEREAS, the property located at 7500 42nd Avenue North hereafter legally described is included in the Redevelopment Plan, Redevelopment Project and Tax Increment Financing Plan area: The East 100 feet of the South 350 feet of Lot 5, Auditor's Subdivision No. 324, Hennepin County, Minnesota except road and alley. PID No. 17-118-21-22 0006, and WHEREAS, the goals and objectives of the Redevelopment Plan and Redevelopment Project include among others the following goals and objectives: a. provide compatible and complementary land uses; provide more homogeneous land uses and street treatment along 42nd Avenue in order to unify development ,and provide a positive image of the City; promote and secuFe development and redevelopment in a manner that allows the most logical and efficient arrangement and intensity of land uses; to undertake certain land acquisition, parcel assembly and parcel disposition necessary to eliminate substandard and non-conforming uses and buildings, and to assemble logical conforming and more efficient building sites; to promove and secure the redevelopment of non-conforming ]and uses and substandard buildings in a way which provides a clearer definition of land uses and more efficient utilization of parcels; and WHEREAS, the Economic Development Authority in and for the City of New Hope does hereby determine that the acquisition of this property is reasonably necessary and convenient to the furtherance of the referenced goals and objectives of the redevelopment plan and redevelopment project, and that in its judgment the acquisition of this property will be for the benefit of the public health, we]fare and safety of the citizens of New Hope, and WHEREAS, an appraisal of this property has been previously ordered by the EDA and that said appraisal has been completed as of May 28, 1997 establishing a fair market value for the subject property of $344,000.00, and 2 WHEREAS, Minn. Stat. §117.232 authorizes the EDA to acquire the subject property by direct, purchase in lieu of eminent domain proceedings, and WHEREAS, Minn. Stat. §469.101, Subd. 4 gives the Economic Development Authority in and for the City of New Hope the authority to acquire property by power of eminent domain under Minn. Stat. Chapter 117, including the power of acquiring possession of the property per the "quick-take" provisions of §117.042, if necessary to carry out the redevelopment p3an and redevelopment project, and WHEREAS, the Economic Development Authority in and for the City of New Hope has determined it is necessary to acquire this property by direct purchase or eminent domain proceedings, and WHEREAS, said redevelopment plan and redevelopment project were established under the authority of Minn. Stat. Chap. 462 pursuant to various studies undertaken by the City of New Hope which have shown that certain redevelopment activities in the plan area are warranted and would not have occurred through PriYate development alone. NOW, THEREFORE, BE IT RESOLVED by the Economic Development Authority in and for the City of New Hope as follows: 1. That the Executive Director is hereby directed and authorized to acquire by direct purchase at the appraisal value of $344,000.00 the property at 7500 42nd Avenue North in the City of New Hope, legally described as follows: The East 100 feet of the South 350 feet of Lot 5, Auditor's Subdivision No. 324, Hennepin County, Minnesota except road and alley. PID No. 17-118-21-22 0006. In addition to this amount, the Executive Director is authorized to pay ail reasonable closing costs associated with the purchase of property. Further, the Executive Director is authorized to retain a relocation expert to determine the amount of relocation expenses the EPA must pay by law as a result of this acquisition and pay to the appropriate parties all required relocation expenses as determined. If direct purchase is unsuccessful, the Executive Director is authorized and directed to commence eminent domain proceedings under Minn. Stat. Chapter 117 to acquire the subject property. 2. That the Executive Director is further directed to utilize the "quick-take" procedure per Minn. Stat. §117.042 if in the judgment of the Executive Director it is necessary to acquire possession of the property prior to the conclusion of the eminent domain proceedings. 3. That the Executive Director is hereby directed and authorized to obtain additional appraisals necessary to establish fair market value and just compensation for said property in preparation for said eminent domain proceedings. Adopted by the Economic Development Authority in and for the City of New Hope this 25th day of August, 1997. Attest: W. Peter Enck, President Daniel J. Donahue, Executive Director d:\.pSl\cnh\res0lut i0n,750 .I 415T &v~ ~ Plat Mai, 75' ~arehouse/Hanufacturing Hanufacturing 0 Sf hf oi pc e Off. Ioff. I 1C )~ 16' 42nd Avenue North North I Area Calculation 76 x 99 : 7,524 60 x 100 : 6~000 1],~26 sq. Office Area 60 x 20 = 1,200 sq. 9: of GSA Ft. GBA ft, o_~ ( Buildin== Sketch ] NEW HOPE COMPREHENSIVE PLAN COMMITTEE MEETING August 12, 1997 5:00 PM AGENDA Introduction of Comprehensive Plan Committee Members and City Staff a. Role of the Committee Explanation of the purpose of comprehensive planning a. Regional mandate b. Local focus c. New Hope planning history d. Past planning efforts Comprehensive Plan planning process Inventory/community profile Issues identification Policy plan Development framework - categorical/neighborhood Implementation plan Public participation Project schedule General discussion/project scoping 6. Adjourn PAST PLANNING EFFORTS/CURRENT CONDITIONS The 1960 Comprehensive Plan for New Hope was reflective of a new growth community. The plan was formulated to address a rapid growth rate and focused on promoting a balanced land use pattern between residential, commercial and industrial land uses. Guided by the 1960 New Hope Comprehensive Plan, more than 2,000 acres of land in New Hope was developed between 1960 and 1975. In 1975-76, the City updated its Comprehensive Plan. At that time, approximately 13 percent or 420 acres of land remained undeveloped, the primary issues addressed the 1976 Comprehensive Plan included (see Exhibit A): Utilization of the remaining undeveloped land. The 1975 existing land use and land use framework are illustrated as Exhibits B and C. Creation and enhancement of a City Center (see Exhibit D and E). Presentation and maintenance of environmental and aesthetic quality. 4. Irregularity of municipal boundaries. The City has undertaken numerous planning efforts since 1976 that have addressed more specific planning topics or issues. These planning documents will provide excellent foundation for the Comprehensive Plan update and will go a long way in satisfying Metropolitan Council requirements. Commercial Core Guidelines, 1977 Housing Action Plan, 1978 42nd Avenue/City Center Market Study, 1985 42nd Avenue Improvement Study, 1985 New Hope Vacant Land Study - Use Determination, 1989 New Hope Vacant Land Study Implementation, 1989 New Hope Market Study, 1989 Gethsemane Market Study, 1991 New Hope Market Study, 1995 Housing Action Plan, 1996 Transportation Plan, 1995 Stormwater Management Plan, 1996 Northwest Associated Consultants staff assisted New Hope in 1975-76 with its current Comprehensive Plan. We are proud to have the opportunity to assist the City with this new plan update. EXHIBIT C Since the 1976 Comprehensive Plan, New hope has matured to a fully developed community. The issues and opportunities it confronts do not differ significantly from those in 1976. NAC's long standing relationship with New Hope gives us an intimate understanding of these changing conditons, including but not limited to: Infiil of remaining vacant parcels. Maintenance of existing neighborhoods. Changing roles and character of New Hope's commercial areas. Continue promotion of industrial retention and in place expansion. The identification of potential redevelopment areas. Define the goals and objectives for New Hope through year 2020. Establish land use regulations that support and implement the City's stated goals and objectives. 2 community issues ..~.. · ,~..~:: .,~..¢~ ~ ~. ~ : ~ ~,-,----:-:::.. i!' II :' '"'~- : ~';' ~:~L,~ i '. ,~ /.._. , '/ ~ : lack of mid-density ~ [ :: :]. ....C ~ .~.. 1' res,dent,al deve opment ~ ::':7~: ::~ ~' ' . attraction of mul ti-tenant ."::~:: :::::::::::::::::::::::::: ..' :.':::~...:~ ~7:' ~,-~...~ i . ~ .,~ ~ ~ ~ ::..,. :::~::::: .... ~office development :~ ]' ~ ~: ~ '. ........ ::: ~. :h:~::[ .... " ' ~..~...~. . ~:.,:~.:r.f .:~ , ..,~ , :::: :~ ...... J t f:~~v~tall ~ and spread L ~' ~JJ 'OTI'~i'ZATION OF REMAINING ~ residential neighborhood UNDEVELOPED LAND and housing preservation ~::~:-:.~ c:.~.~.,~ "' ~ ' and maintenance :::[~:[:;)"~'l~ ~ ~ .... of natural environmental l:':~ ::?[ ..... ..:." m~es and ~ "programs which meet j):::: .:~::J[ , ~ , "'" travel needs-" ,~ .' the needs of ' .... _.' MAINTENANCE OF ~-. ~', the population . =. ',,~ -- j~ ~NV~,O~N~ ~a F':, ~.. · .: ,~ ~.~":..:::~ ~:,~ff~::~:~:~:.~::~:,~ , ., ~ ' ...... , ~ ::::~::~::::%~fi::~ ' ~ J~ : ~/" CREATION AND X tz: '~...~ ]::~}?::~:~}~::~'~ ~, ENHANCEMENT OF strip pattern at ::::::::::::::::::::::::::::::: j ,~?.. -.,, , .... ~ ,. -,. ~, ? a p attrachon of malor ~. ., . '. . hotel/motel ~ .... 'large and growing amount':~' "q'v*. '.~ * "3' .... ~ non-taxable land and ~ ~ ~ ~ ~-- ~ ............................. , ~::~,:~:~,' ~ h - '. 'J ~ :~:~'z:~f:~.~::~:~:~::::::::.~::::l . new hope, ming. existing land use 1975 single Family residence 2-7 Family residence 8+ family residence public and sem;-publlc commercial industrial undeveloped source: cityof new hope new hope, minn. land use framework ~ Iow density residential ~mJd density residential .~h~gh density resJdenHal ~public and semi public ~ commercial ~ind ustrial/business new hope, minn. II tl ~ ~ /f~ ..... r-- ~ r2 ,/~ ~ ,. /'/ ~ ,,~, __.~~..~~ ..... ~.o~-~.~ .~,, ' I 1 ~ ~ · · m', ,,, ........ ~ ~ , = . .... :~--- I .......... ,, ~ ~ ~ ~1'~ ~% [ .... ~ 1~ .... ~~.._ I / ~ ~ .' , I ~-'~ ' ' ' ' ' EXHIBIT EXHIBIT E WORK PROGRAM Task I - Inventory/Community Profile The planning inventory/community profile will be a summary of existing conditions related to the New Hope's demographic profile, land use, housing, land use controls, transportation and infrastructure. This document will provide a historic reference and the empirical data base from which the City will develop its comprehensive plan. Due to New Hope's continuing focus on planning, it is anticipated that most data necessary for the planning inventory has already been assembled and is relatively current. Additionally, in some cases there are detailed reports documenting the information. Within the context of the Comprehensive Plan update, a summary statement of the social, physical and economic aspects of the community will be prepared. To minimize time and costs, it is suggested that the plan inventory merely highlight both in text and graphic form the very basics of the information required by the Metropolitan Council and reference the sources where more extensive detail may be located. To some extent, this could take on the form of an annotated bibliography of existing planning documents. It is further anticipated that with the assistance of City staff, NAC would gather the inventory information and synthesize it into a formal report. Consistent with Metropolitan Council requirements, the inventory/community profile must include the following elements: Ao Historical Background: This section would provide a description of New Hope with regard to is past planning efforts, development patterns and growth. B. Community Profile: Social/Profile: This section would provide a description of New Hope's demographic composition including population, household characteristics, employment, age and income. Much of this information has been gathered fro the City's 1996 Housing Action Plan. Census information and Metropolitan Council demographic forecasts will also be utilized. Natural Environment: Description of the environmental sensitive conditions within New Hope that should be protected and will be a constraint on develoPment. In the case of a fully developed community like New Hope, the natural environmental portion of New Hope will focus on the City lakes, wetlands,, stormwater issues, as well as the City regulations that provide environmental protection. Physical Profile: The physical profile of the community is intended to describe the various physical components of New Hope including land use, housing, utility infrastructure, transportation, etc. EXHIBIT D bo Co An existing and proposed land use map is required as part of the Comprehensive Plan submission to the Metropolitan Council. The Metropolitan Council requests that the existing and proposed land use map be submitted in a digital format as well as a hard copy. The "Arc Export" format is preferred, but a "DXF" format can be used. New Hope has GIS availability through its City Engineer. The following efforts are suggested to produce a GIS existing land use map: (1) The City Engineer (Bonestroo) produce working maps at 1 inch equal 200 feet showing parcel boundaries, street names and PID numbers. This information is currently in their GIS system. (2) (3) NAC will overlay the working maps over the City's 1991 topography maps and identify the existing land uses. Building permit information and a field inspection will be used to identify land use development since 1991 and remain vacant site~. The City Engineer can digitize the existing land use areas from the working maps and oveday them on a parcel map to assign land use and calculate acreage. (4) The same process can be used for the New Hope proposed land use map. Housing. The housing component of the inventory will reference the approved New Hope 1996 Housing Action Plan. Transportation. The transportation component of the inventory will reference the New Hope 1995 Comprehensive Transportation Plan. Utility Infrastructure. New Hope has recently completed a Stormwater Management Plan which will be referenced in the inventory. Other infrastructure areas such as sanitary sewer, water, parks will require some attention. Information and issues related to these infrastructure areas will be identified through discussions with the Public Works Director, Park and Recreation Director, City Engineer and other City staff. 2 Land Use Regulations: A description of New Hope's in place land use regulations is necessary to illustrate how the City addresses local and regional concerns related to environmental protection, affordable housing, and economic development. Task II - Issue Identification Comprehensive Plan Committee. The City has established the Comprehensive Plan Committee as the contact group for undertaking a Comprehensive Plan update. The contact group in conjunction with City staff will provide feedback and direction for the Comprehensive Plan as it progresses through the planning process. Through regular meetings, the contact group will stay abreast of the plan progress and assures that the plan is tailored to address the City's specific issues. Tactic Interviews. Individual interviews would be held with members of the City Council, Planning Commission, City Administrator and department heads_ to determine needs, issues and initial objectives to be addressed in the Comprehensive Plan. Additional interviews may be held with the City's other advisory groups or other organizations such as the Chamber of Commerce, the School District, or adjoining communities if the City feels it may be necessary. Through the tactic interviews, the issues and future land use objectives of the community leaders will be identified. The interviews will provide direction and focus with regard to the local community issues that must be addressed in the comprehensive planning document. A summary of the findings from the interviews would be prepared. The tactics interviews will be scheduled for late .August following our first Committee meeting. This will allow the Committee to provide input as to interview questions. Visioning Session (Optional). Upon completion of the tactics interviews and the issue summary of issues and opportunities obtained through the efforts will be presented at a joint comprehensive planning workshop for the City Council, Planning Commission and Comprehensive Plan Committee. Through this workshop an effort will be made to build consensus as to the priority issues facing the community and the direction that the comprehensive plan will take in addressing these issues. 3 Issue Summary. The issues and directions ascertained from the tactics interviews, and visioning sessions will be summarized as a chapter in the Comprehensive Plan. The issue summary will identify the issues and community goals that will be addressed through the comprehensive plan process and be included as part of the final plan. Task III - Comprehensive Plan - Policy Plan An initial and critical part of the comprehensive plan is the policy Plan. This narrative statement of goals, objectives and policies responds to the issues and opportunities that are presented in Tasks I and I1. The policy plan will address topics of land use, natural resources, housing, transportation, community facilities/services, economic development and redevelopment. Working with City staff and the Comprehensive Plan Committee, NAC will formulate a draft policy plan using the policy statements of past planning documents as a base and developing new policy statements to address new issue areas. The draft policy plan will be subject to detailed review by the Comprehensive Plan Committee, City officials and City staff. City input is essential to insure that the pl_a~ is tailored to the need and desires of New Hope. the finalized policy plan will become part of the final report. Task IV - Comprehensive Plan - Development Framework, Categorical and Neighborhood Planning Districts The specific land use and community development recommendations shall be described both as narrative and graphic format within the development framework. The development framework will first address community issues in the following categorical basis, land use, natural resources, transportation, community facilities and services, economic development, redevelopment. VVherever the City has recently completed planning studies such as transportation and stormwater management, the existing plans shall be included by reference and coordinated with development framework recommendations. The 1976 New Hope Comprehensive Plan also utilized Planning districts to give planning attention to individual neighborhoods. With this planning effort, we will revisit each of the existing planning districts. Task V - Implementation Program So as to assist the City in a realization of its plans, the last task envisioned is the preparation of a Community Improvement/Comprehensive Plan Implementation Program. 4 In cooperation with City staff, a listing of specific projects will be identified and detailed. On an initial basis, priority listing will be provided which will be subject to the review and modification by City officials. Once the project priority listing is agreed upon, further refinement of the project will be pursued. This will include outlining anticipated costs, sources of funding, and responsibility assignment. Task VI - Public Participation Public participation is essential to tailor the plan to meet the City needs. The public participation component is intended to be continuous throughout the comprehensive planning process. The public participation will include the following: Contact Group Meetings. Periodic contact group meetings will beheld throughout the comprehensive plan process. This subcommittee of the Planning Commission would be responsible for directing the comprehensive plan efforts. Meetings would be held on an as needed basis to provide feedback on the previous tasks being undertaken. Visioning sessions as described in Task II. The workshop is proposed to help focus the comprehensive plan early in 'the process. This meeting is optional, Co Review Work Shops. Following the final draft of the policy plan and development framework, review workshops with the entire Planning Commission and Council is suggested. This will allow for discussion and revision prior to final draft. Public Hearing. Final draft presentation to the general public is mandatory. The public hearing will be with the Planning Commission with a subsequent presentation to the City Council. 5 SCHEDULE The schedule for undertaking the New Hope Comprehensive Plan is outlined on the following page. The specific timing of each task may vary depending on staff time and Committee meeting availability. Comprehensive Plan Committee meetings start August 12. Subsequent meetings may be scheduled either monthly or to correspond with the completion of the Comprehensive Plan tasks. EXHIBIT E NEW HOPE COMPREHENSIVE PLAN UPDATE ,,,, SCHEDULE July August 9epl~nl~r October POLICY P~N PUBLIC H~RING Commiflee Meetings Workshop Meetings/PC or CC Meetings PROJECT NO. 594 BULLETIN #1 PROJECT BULLETIN 1997 PARK IMPROVEMENTS CORNER PARK Overview The City of New Hope will be reconstructing the playground at Corner Park this fall. The project will include the removal of the existing play equipment and the installation of new equipment. The new equipment will include accessible play features for persons with disabilities. This project also includes the construction of a hard surface path providing access to the play area from the sidewalk along the south side of 47~ Avenue as well as the installation of an accessible picnic table near the play structure. The area between the play area and 47th Avenue will be re-graded to allow for better drainage of the area as well as to provide for the accessible path to the playground. The basketball court will also be removed and replaced this fall. Unlike the playground improvement, however, the basketball court will be replaced by City staff. Project Schedule :~ The New Hope City Council awarded the contract for the Corner Park Improvements in the amount of $43,699 to Arrigoni Brothers Company at the July 28 Council Meeting. A pre- construction meeting was conducted on August 13 with all appropriate personnel. The contractor plans to start construction on the project the week of September 8, 1997, and is estimated to complete the improvement project by the end of October. Work on the basketball court will begin at approximately the same time and should be completed by the end of September. Due to the lack of parking along 47~ Avenue and the heavy traffic in the area, the contractor will be parking their vehicles on Utah Avenue while they are at the park working on the project. Construction Hours Standard construction hours will be between the hours of 7 a.m. and 10 p.m. Monday through Friday, and 9 a.m. and 9 p.m. on Saturday. All work, including mobilization of equipment, will take place during these time periods. Contact Persons If you have questions or concerns during the improvement project, please direct your calls to the engineer representatives: Joe IIletschko, Project Inspector: 604-4800 Randy Neprash, Project Engineer: 604-4703 If you wish to speak to a City staff person, please contact Tom Schuster, Contract Manager, 533-4823 ext. 13. City of New Hope 4401 Xylon Avenue North New Hope, MN 55428 8/18/97 PROJECT #583 Bulletin #1 PROJECT BULLETIN 1997 BACKYARD DRAINAGE IMPROVEMENTS Overview The City of New Hope is proceeding with backyard drainage improvements in four areas of New Hope at the following locations: Area 1 - 46t~ / Winnetka Avenues Area 2 , Little Acre Park Area 6 - 40t~ / Boone Avenues (east side) Area 7 - Terra Linda Park The Backyard Drainage Improvement Project includes placing drainage piping to collect nuisance ponded water from existing backyards and shaping these areas so that they drain. Several residences will direct sump pump discharge hoses to the constructed storm pipe. All areas disturbed by the construction Of this work shall be restored to an equal or better situation compared to the condition of the site which existed prior to the construction. Project Schedule The New Hope City Council awarded the contract for the 1997 Backyard Drainage Improvement Project to Jay Brothers, Incorporated in the amount of $88,675 at the July 28 Council meeting. A pre- construction meeting was conducted on August 11 with all appropriate utility compar~es and construction personnel. The contractor plans to start construction on the project the week of September 8 and is estimated to complete the entire project in late October. The contractor has indicated that they will be working on one area at a time and do not expect to leave an area until they have completed work there. The restoration work, including sod, will be completed in the fall. The proposed sequence of the work is anticipated as follows: Area 1, Area 6, Area 2, and Area 7. Access All work is to be done on public right-of-way or easements which are provided by the Owner. Access to all sites shall generally be over the alignment of the storm sewer or drainage pipe. Entry Agreements and Certificates of Temporary and Permanent Construction Easements have been secured from the owners of property affected by this project. Construction Hours Standard construction hours will be between the hours of 7 a.m. and 10 p.m. Monday through Friday and 9 a.m. and 9 p.m. on. Saturday. All work, including mobilization of equipment, will take place during these time pedods. Contact Persons If you have questions or concerns during the infrastructure improvement project, please direct your calls to the engineer representatives: Vince Vander Top, Project Inspector: 604-4790 or 533-4823, ext. 15 Mark Hanson, City Engineer: 604-4838 If you desire to speak with someone with the City of New Hope, please contact Tom Schuster, Contract Manager, 533-4823 ext. 13. City of New Hope 4401 Xylon Avenue North New Hope, MN 55428 8/25/97 JULY 1997 AMERICAN PLANNING ASSOCIATION Neighborh.ood Character and Rezon,ng By Mark S. Dennison When does the existing use classification of a parcel of land no longer make sense? A change in the character of the neighborhood surrounding it since the original zoning ordinance or latest amendment may be a good indicator. A local zoning authority, either on its own initiative or at a landowner's request, may consider a rezoning to accommodate changed conditions in an area. Because communities grow and change, zoning cannot remain static. As many courts have observed, "changed conditions call for changed plans." [See Kravetz v. Plenge, 446 N.Y.S.2d 807 .(App. Div. 1982).] By nature, rezonings affect the competing interests of individual landowners who expect to benefit and others who view them as detrimental to the use and value of their property. As a general rule, property owners have no legal right to retain an existing zoning classification with respect to either their own or nearby property. Because owners hold property subject to the government's general police power, they can expect only that zoning changes will be reasonably related to legitimate public interests. Thus, local zoning ordinances may be amended to further the public welfare where necessary to account for a substantial change in neighborhood character. [See Kozesnik v. Montgomery Township, 131 A.2d 1 (N.J. 1951).] Judicial Review Most states consider rezonings to be legislative decisions. The logic is that the enactment of a zoning ordinance is clearly legislative and sets policy, so amendments should be deemed legislative as well. As such, the approval or denial ofa rezoning wilt not be invalidated unless the zoning board's decision is clearly shown to be "arbitrary and capricious," "an abuse of discretion," or "totally lacking in relationship m the public health, safety, and welfare." The burden is on the challenger to overcome the presumption that a rezoning decision is reasonable. Some states employ an important variation on this standard of judicial review, known as the "fairly debatable" rule. Under this standard, ifa zoning decision is supported by any substantial evidence, then the matter before it was fairly debatable and the court will not substitute its judgment for that of the zoning body. On the other hand, if the decision is not supported by any substantial evidence, the zoning board's action was arbitrary and capricious and should be invalidated. It is important to note that a few of those states (most notably Maryland and Mississippi) that apply the "fairly debatable" rule do not attach a presumption of validity to rezoning decisions, although they still consider them to be legislative acts. The courts in these states apply a "change or mistake" rule to rezonings, under which the existing zoning is presumed valid until proponents of the rezoning rebut the presumption with evidence of a mistake in the zoning ordinance or a substantial change in conditions since its adoption or latest amendment. [See Cardon Investments v. Town of New Market, 485 A.2d 678 (Md. 1984).] Ifsufflcient evidence is put forth to make the issue of change or mistake fairly debatable, then the presumption of validity attaches to the rezoning with its customary effect. [See Lurer v. Hammon; citations appear in box.] Compatibility of Rezoning with Comprehensive Plan Rezoning decisions frequently are challenged on grounds that the zoning body failed to consider properly the policies and goals of the comprehensive plan. [See Miller v. Town of Tilton.] The comprehensive plan, whether inherent in the zoning ordinance or a separate written document, should be designed to reflect current and future regulation of land uses. "Properly designed, the comprehensive plan contemplates a dynamic community. It recognizes the inevitability of change. Its goal is orderly change, balancing the community's growth needs'and the individual's interest in using his property as he sees fit." [Woodland Hills Conservation Ass'n, Inc. v. Gty of Jack~o_n.] Courts generally h;.':e stated that neighboring land-rises must be considered in order for a zoning change to meet the requirement that it was done in accordance with a comprehensive plan. [See Montgomery v. Bremer County Bd. of Supervisors, 299 N.W.2d 687 (Iowa 1980).] A change in · .'. Scenario One : The local zoning body approves an upzoning of la.2vd to a less restrictive use classification, and neighborhooit residents challenge the reasonableness of the rezoning. Coleman v. Gormley, 748 P.2d 361 (Colo. App. 1987) (changed conditions justified rezoning from residential to planned unit development use classification) Palisades Citizens Assoc., Inc. v. District of Columbia Zoning Commission, 368 A.2d 1143 (D.C. App. 1977) (sufficient evidence of change to justify rezoning from single-family to multifamily residential use) Luter v. Hamraon, 529 $o.2d 625 (Miss. 1988) (changed conditions warranted rezoning from residential to commercial) Woodland Hills Conservation Ass'n, Inc. v. City of Jackson, 443 So.2d 1173 (Miss. 1983) (rezoning from limited residential to general commercial supported by change in character of neighborhood) Bassani v. Board of County Commissioners for Yakima County, 853 P.2d 945 (Wa~N App. 1993) (changed circumstances justified rezoning from general rural to light industrial) (continued on page 3) neighborhood conditions since the original zoning ordinance was adopted is a highly relevant factor iudging the validity of tezoning. [fa rezoning reflects or is appropriate ro the changes, evidence of the changed conditions will rebut any contention that it ~vas not done in accordance with a comprehensive plan. (See Bassani v. Board of County Commissioners for Yakima County.) Where the zoning board finds that there have been substantial Athough the findings and decisions of local zoning bodies generally are cloaked with a presumption of validity, they are nevertheless frequently challenged as being arbitrary, capricious, and failing to advance legitimate police power objectives. changes in the neighborhood and a zoning change will promote the property's or&dy development and be in harmony with the comprehensive plan, the rezoning usually will withstand challenge. (See Sullivan v. Town ofActon.) Conversely, where changed conditions exist in support of a rezoning, a zoning board cannot simply raise the comprehensive plan as a defense to its refusal to rezone. Even though a requested zoning change may conflict with the comprehensive plan, if changed conditions mean that strict conformity with the plan fails to advance the public health, safety,, and general welfare, the refusal to rezone may be deemed unreasonable. (See DeKalb County v. Albritton Properties, Inc.) Spot Zoning The validity of rezoning decisions may likewise be challenged on "spot zoniGg" grounds. Spot zoning, in general terms, means the rezoning ora single tract of land, usually small in size, so that it is zoned differently from all surrounding prOperty (for example, a lot rezoned commercial is surrounded by property zoned for residential use). Where the rezoning permits a use that is inconsistent with the comprehensive plan for the area, is incompatible with the surrounding uses, grants a discriminatory benefit to the parcel owner, and/or harms neighboring properties or the community welfare, it may be invalidated as illegal spot zoning. [See Buddv. Davie County, 447 S.E.2d 449 (N.C. App. 1994) (rezoning from residential to industrial was illegal spot zoning).] [n determining whether a zoning change constitutes spot zoning, the courts will consider the character of the area that surrounds the rezoned parcel. [See Verdecchia v. Johnston County, 589 A.2d 830 (R.I. 1991).] A change in conditions in the area surrounding a rezoned parcel may indicate that the original zoning classification is no longer justifiable. [See Boland v. City of Great Falls, 910 P.2d 890 (Mont. 1996); County Commissioners for Yakima County, 853 P.2d 945 (Wash. App. 1993).] Defendants in spot zoning challenges may make this argument to counter allegations that the rezoned parcel is incompatible with the surrounding area. [See Bell v. City of Elkhorn, 364 N.W.2d 144 (Wis. 1985).] Further, a rezoning applicant may advance this theory to support approval of a z?[ark Dennison is an attorney and author who practices environmental, land-use, and zoning law in Westwood, New Jersey. requested zoning change. Thus, a local zoning body's refusal to rezone may itself constitute illegal spot zoning where changed conditions exist. [See Ross v. City of}Srba £inda, 2 Cal. Rptr.2d 638 (Cal. App. 1991); City ofMiami v. Woodlawn ?ark Cemetery Co., 553 $o.2d 1227 (Fla. App. i989).1 [n determining whether a rezoning is compatible with the surrounding area, planners must examine the tract relative to the vast majority of the land immediately around it, not just a small tract located in the vicinity. For example, where a single parcel is rezoned from residential to business use and is surrounded by many acres zoned for residential use, it makes litde difference chat it may be in conformity with another nearby parcel zoned £or business use. [See zV[ahaffey v. Forsyth County, 394 $.E.2d 203 (N.C. App. 1990).] The predominant use in the area provides the yardstick against which the rezoning must be measured for compatibility with neighboring uses. [n fact, a small pocket of less restrictive use located in the vicinity, may itself have been the result of former spot zoning action. [See Covington v. Town of Apex, 423 S.E.2d 537 (N.C. App. 1992).] [t cannot form the basis for asserting compatibility between the challenged rezoning and uses in the surrounding area. Changed Circumstances Although the findings and decisions of local zoning bodies generally are cloaked with a presumption of validity, they are nevertheless frequently challenged as being arbitral_, capricious, and failing to advance legitimate police power objectives. Because the purpose of rezoning is to adjust local zoning districts and regulations to accommodate changing development patterns and community needs, challenges usually focus on evidence of changed conditions. Whether or not changed conditions support a rezoning is a question that can be answered only by evaluating: 1. What area reasonably constitutes the "neighborhood" surrounding the subject property. 2. What changes have occurred in that neighborhood since the zoning ordinance or latest amendment was enacted, whichever occurred later. 3. Whether these changes resulted in a change in neighborhood character sufficient to justify, the rezoning. The determination of whether changed conditions are sufficient in nature and degree to warrant rezoning is flexible and allows for consideration of each case on its own facts. Whether the challenge is to the approval or denial of a rezoning request, the courts consider various factors when determining the sufficiency of changed conditions, including changes in traffic, the surrounding area, and the subject property, that property's suitability for uses permitted under the existing zoning, and the public need for the rezoning. Traffic Changes. The development of interstate highways and busy thoroughfares has changed considerably the residential character of many areas. Still, evidence of increased traffic is usually not sufficient justification in itself for a zoning change. [See Cardon Investments v. Town of New Marker, 485 A. 2d 678 (Md. 1984).] The evidence must reveal that other relevant changes have occurred in addition to or as a result of the increased traffic to support a rezoning based on changed conditions. [See fefferson County v. O'Rorke, 394 So.2d 937 (Ala. 1981).] A common scenario involves property owners in a residential neighborhood contesting the rezoning of adjacent land from residential to business or commercial use. In challenging a rezoning application, neighboring property, owners often complain that a zoning change wili increase traffic flow and thereby adversely affect their property, values and the neighborhood's residential character. [See City of Tampa v. Seth, 517 So.2d 786 (Fla. App. 1988).] Where the rezoning proponent fails to establish sufficient changed conditions in the area surrounding the parcel, these allegations may provide good cause for disapproval. [See Amalgamated Trust & Savings Bank v. County of Cook, 402 N.E.2d 719 (Ill. App. 1980).] However, where the rezoning applicant or municipal zoning body can show sufficient changed conditions, the adverse impact of the projected traffic increase may be balanced against the public benefit of the rezoning. (See Woodland Hilh Conservation Ass'n, Inc. v. City of Jackson.) Changes to Surrounding Area. The strongest indicator of changed conditions necessary, to sustain or overturn a rezoning decision concerns changes in the area surrounding the property, at issue. The delineation of the affected neighborhood depends on the facts and circumstances of each case, and courts refrain from issuing strict guidelines to define it. The definition of the neighborhood and how near a change must be to affect its character are primarily matters for the rezoning board to deter- mine. [See Board of Supervisors of Henrico County v. Fralin and Waldron, Inc., 278 S.E.2d 859 (Va. 1981) (zoning board defined neighborhood as area within three-fourths of a mile of the subject property).] It is a determination of fact that is a function of the zoning body and not an issue for the reviewing court. [See Coleman v. Gormley, 748 P.2d 361 (Colo. App. 1987).] For example, in Lurer v. Hammon, 529 So.2d 625 (Miss. 1988), the mayor and board of aldermen of Tylertown, Mississippi, rezoned from residential to commercial use an undeveloped parcel of land lying between a business enterprise and a residence and surrounded by commercial properties. Although the property, was zoned for single-family residential use, it had remained an undeveloped, vacant lot. Commercial properties were located to the north, south, and west, and one of only four remaining residential lots in the downtown area was located directly to the east. The owners of these residential lots contested the rezoning on grounds that there had not been sufficient change in the character of the neighborhood to justify the single parcel rezoning. in evaluating the rezoning's validity, the court reviewed the findings of the mayor and board. They based their decision on the lack of residential development and increased commercial development in the surrounding area, which included a lumber warehouse, nurse .ry, day care center, law office, fast food restaurant, and insurance office. The court concluded that this evidence showed a general commercialization of properties in the downtown area and the continued shrinkage of those properties used for residential purposes. Thus, the court held that the rezoning was justified by a change in neighborhood character. On the other hand, in City Commission of the City of Miami v. Woodlawn Park Cemetery Company, 553 So.2d 1227 (Fla. App. 1989), the court held that the city's refusal to rezone a 1.3- acre parcel of Woodlawn's 66-acre cemetery from residential to commercial use was arbitrary, and discriminatory in light of changed conditions in the area surrounding the property. The court reviewed the changes that had occurred since the 1930s, when the subject parcel was first zoned residential. The street on which the parcel fronted was an undeveloped country road in what was then a very small town called Miami. Over the next 50 years, the neighboring area had been totally transformed into a commercial area as part of the city's (continued j%m page 1) 4° Scenario Two The local zoning body approves a downzoning of land J~om a less restrictive to a more restrictive use classification, and owners of the rezoned land challenge the reasonableness of the rezoning. Sullivan v. Town of Acton, 645 N.E.2d 700 (Mass. App. 1995) (rezoning from business to residential use was a legitimate and reasonable means of advancing the goals of a long-range planning study) Miller v. Town of Tilton, 655 A.2d 409 (N.H. 1995) (rezoning from industrial to agricultural use was not illegal spot zoning because it was not inconsistent with comprehensive plan) Board of Supervisors of HenHco County v. Fralin and Waldron, Inc., 278 S.E.2d 859 (Va. 1981) (county board of supervisors failed to establish changed conditions necessary to rezone property from multifamily to single-family residential use) Woodcrest Investments Corp. v. Skagit County, 694 P.2d 705 (Wash. App. 1985) (insufficient evidence 9f changed circumstances to support rezoning residential to rural use classification) · :' Scenario Three The local zoning body refuses to upzone a petitioner's land to a less restrictive use classification, and the landowner challenges the denial based on a change in the character of the surrounding area. Woodard v. Ci~ of Decatur, 431 So.2d 1173 (,~da. 1983) (refusal to rezone from single-family residential to multifamily residential was fairly debatable) Jefferson County v. O'Rorke, 394 So.2d 937 (Ala. 1981) (refusal to rezone from residential to commercial was not fairly debatable in light of changed conditions) DeKalb County v. AlbHtton Properties, Inc., 344 S.E.2d 653 (Ga. 1986) (refusal to rezone subdivision tract from residential to commercial was unreasonable in light of changed conditions in surrounding area) Chesapeake Ranch Club, Inc. v. Fulcher, 426 A.2d 428 (Md. App. 1981) (applicant failed to establish changed conditions warranting rezoning from highway commercial to marine commercial use classification) Erigan Co., Inc. v. Town of Grantwood Village, 632 S.W. 2d 495 (Mo. App. 1982) (refusal to rezone is fairly debatable where evidence showed that rezoning from residential to commercial use would change character of neighborhood) Cloverleaf Mall, Ltd. v. D.B. Conerly, 387 So.2d 736 (Miss. 1980) (party, seeking rezoning failed to show that character of neighborhood had changed substantially since latest amendment to zoning ordinance) phenomenal development. Now the subject parcel was the Only property in the adjoining area still zoned residential: all the other properties had been rezoned from residential to commercial, and the area was heavily built up on the north, east, and west with a variety of businesses. Moreover, the street on which the parcel fronted was now a heavily traveled, four- lane, major thoroughfare in Miami, commercially developed on both sides of the street for miles in either direction. The evidence clearly showed a transformation over a relatively long period of time in the character of the area surrounding the subject parcel. Extensive intervening rezonings, commercial development, and traffic buildup had made the once purely residential area now largely commercial. Moreover, adjoining property rezonings were of such a nature that the subject parcel had become % 'veritable island,* or a 'literal peninsula,' of residential zoning in a surrounding sea of otherwise commercial rezonings." The court stated that the needs addressed by the property's original zoning classification had been dissipated by the city's intervening growth. It had now become so out of proportion with the interference with the use of the property that the city's exercise of the police power in retaining the residential use classification of the property could no longer be upheld. The court concluded that the city's refusal to rezone had arbitrarily discriminated against the landowner so that it could not make use of its land for the same commercial purposes enjoyed by adjoining neighbors. Suitability for Uses Permitted Under Existing Zoning A tract's suitability for use as presently zoned is an important consideration in rezoning challenges. Changed conditions may create a situation where the property's zoning renders an applicant's land "no longer suitable" for the permitted use. For example, a refusal to rezone from residential to commercial is arbitrary and capricious when the subject property is no longer useful for residential purposes as a result of significantly changed conditions in the immediate area. [See]efferson County v. O'Rorke, 394 So.2d 937 (Ala. 1981); Olive v. Cityof Jacksonville, 328 So.2d 854 (Fla. App. 1976); DeKalb County v. Albrirton Properties, [nc., 344 S.E.2d 653 (Ga. 1986).] However, a mere showing that changed conditions have rendered the property's development less profitable under its existing use classification is not alone sufficient to justify a zoning change. [See Woodard v. Oty of Decatur, 431 So.2d 1173 (Ala. 1983).] Financial loss is not the test to determine whether a refusal to rezone is arbitrary and capricious. The proponent of a zoning change must introduce evidence of failed attempts to sell or develop the subject property for the zoned Zomng News is a monthly newsletter published by the American Planning Association. Subscriptions are ava,iab[e For 550 IU.S3 and 565 (foreign). Frank S. So. Exicutive Director: William R. Klein, Director of Research. Zoning News is produced at APA. Jim Schwab. Editor: Shannon Armstrong. Lynerte Bow&n, Chris Burke, Mike Davidson. Fay Dolnick. San}ay Jeer, Megan lewis. Marya Morris, Martin Roupe. Jason Wittenberg. Repor£ers; Cynthia Cheski. Assistant Editor: Lisa Barton, Design and Production. Copyright © 1997 by American Planning Association, 122 S. Michigan Ave., Suite 1600, Chicago. IL 60603. The American Planning Association has headquarters offices at 1776 Massachusetts Ave., N.W., Washington. DC 20036. ?d[ rights rescued. No parr of this publication may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the &rnerican Planning Association. o Printed on recycled paper, including 50-70 r/O recycled fiber and 10% postconsumer waste. uses. [See Amalgamated Trust O'Savings Bank v. Count. q'Cook. 402 N.E.2d 719 (Ill. App. 1980).] A person relying on the length of time the property, has remained vacant must establish that the property is unsalable or undeveloped because of the zoning classification. Absent such proof; a court would have no more reason to conclude that the property's vacancy was occasioned by improper zoning than to conclude that the vacancy occurred because no attempts were made to use or develop the property, or because of other difficulties totally unrelated to zoning. [n Woodard v. City of Decatur, 431 So.2d 1173 (Ala. 1983), two property owners challenged as arbitrary and capricious the city council's refusal to rezone their property from single-family residential to multifamily residential. The property owners contended that it was not practical or economically feasible to develop the property for single-family residential purposes and that they would suffer economic loss because the city council failed to rezone the property. The city council, on the other hand, argued that the property was usable and had value as presently zoned, even though it could more profitably be used under a different zoning classification. The property owners introduced a technical report that indicated that the lots would have to be sold at an unmarketable price to make development economically feasible. The city council countered with testimony of the city engineer, who challenged those figures, in addition, the city council=introduced testimony of a land appraiser who had studied the property values in the area. The appraiser placed a fair market value of $25,900 on the property as zoned under the single-family zoning classification and a value of $158,025 if rezoned for multifamily residential use. The appraiser admitted, however, that there was little demand for either single-family or multifamily residential lots in the city. The court ruled that the fact that the market for this type of housing might be depressed was not determinative. The court said its review was limited to whether the refusal to rezone the subject property was fairly debatable and one upon which reasonable people could be expected to differ. Applying the "fairly debatable" test, the court concluded that there was a fairly debatable question regarding the feasibility of developing the property according to the single-family residential use classification. The city council could properly base its denial on this question, said the court. Public Need for Rezoning A rezoning may be justified ifa substantial public need exists, and this is so even if the tract's private owner will also benefit. [See CityofPharrv. Tippi~t, 616 S.W. 2d 173 (Tex. 1981).] Studies and plans of projected growth and development patterns may provide a substantial basis for a conclusion that there is a public need for certain types of land uses. [See Lurer v. Hamraon, 529 So.2d 625 (Miss. 1988).] Likewise, rezonings may be necessary to keep pace with rapid development in areas identified in a long-range comprehensive plan. [See Bassani v. Board of County Commissioners for Yakima County, 853 P.2d 945 (Wash. App. 1993).] On the other hand, in the case of a zoning board's attempt to downzone a landowner's property to a more restrictive use, the zoning board must offer evidence that changed circumstances necessitate the rezoning to protect the public interest. [See Board of Supervisors of Henrico County v. Fralin and Waldron, [nc., 278 S.E.2d 859 (Va. 1981).] Page 2 -- Augnsl Ill, 1997 z.n. " '~ ' ' ' ' ow ' 9 ,(~,~ ~ Does township s ban on neon wolate sign nets free speech. ~--~zl,~ [c ~: ('alabria, Gillette Liqtto~'s, 693 A.2d 949 (New .Ica'sc),) 1997~ Calabria. Counlry Kitchen, anti Gillelle Liquors were all businesses i~ Long Ilill Town~hip, N.J. In 1906, they were charged wilh violating Ihe Iownship's ordinance regulaling signs. E~ich business had signs illuminaled with neon tubing. According lo Ihe ordinance, "No sign shall be lighted by using unshielcled incandcscenl bulbs or neon tubes, m~rrors refleclmg a d~rect light source or similar devices." The ordinance didn't define neon signs, but generically referred 1~ Ihem as signs construcled out of lubed material with gas or powder thai lit up when eleclrified. Olher types of illumination, however, were permitled for signs. In courl, lhe bt, sinesses challenged Ihe ordiuance's constitutionality. They gave reasons why lhey used the signs and compared photographs of Iheir signs wilh olhers in Iht township to support lheir argument. Though acknowledging lhal Ihey used neon signs, Ihe businesses argued the lownship could not prove their signs were neon because Ihe ordinance did not provide a definition of"neon." The lownship's zoning expert testified lhe ordinance wasn't arbitrary, that it had been the product of years of planning and soliciting public comment, and Ihal il had ils rools in earlier ordinances dating back to 1974. In lheir leslimony, Ihe expert and lhe lown's zoning officer both described neon signs as lubing filled wilh powder or gas thai illuminated when electricity was applied. The Iownship apparenlly banned neon Io keep the area from having an nndesirable "highway look." When asked what the differences were belween neon signs and olher large, existing signs in contributing lo the "highway look," the experl replied, "11 all depends." Afler hearing lestimony at Ihe Irial, the court upheld lhe ordinance's consti- lulionalily and found each business violaled the ordinance. Thc businesses appealed, claiming the ordinance violated their right to free speech and due process, Ihe ordinance was unconstitutionally vague and over- broad, and lhal because lhe ordinance affected a fundamental right, it could nol be presumed v;did. Fhey also claimed they weren't guilly of lhe violalions. DECISION: Conviclions reversed. The convicli~ms had to be reversed, but nol for all the reasons Ihe busi- nesses Cl~imcd. There was n~ question lhe businesses' signs were neon. The ordinance didn'l have 1~ spell ~ml Iht definili~m ~fa comm~mly understood object. The township's zoning experl and zoning ~ffficer bolh agreed on the definition of neon, and the businesses lhemselves admilled lheir signs were neon. The ordinance didn't violale lhe bt, sinesses' righl to commercial speech. The Conslilnlion prolecled commercial speech, bul municipalilies could regulate lhe lime. manner, and place of lhal speech, in this siluation, the ordinance wasn'l rcslricling Ihe s?¢'t'('h Of the signs; it was merely regulaling the sign's ilhoni,a- lh,t. Besides, Iht businesses had several olher altemalives for presenting their signs. Whal was m~l immedialely cerlain, however, was whelher lhe ordinance served a significanl governmenl inlcrest. While the township could validly z.n. Augusl I 0, 1997 -- Page 3 delermine aesthetic issues, it had to show a factual basis for doing so. The township and its expert could not give any factual reasons for banning neon outright, rather lhan just regulating it. If"it all depend[ed]," as the experl said, lhe neon could be regulated and nol simply banned. see also: State v. Mortimer, 641 A.2d 257 (1994). see also: Capitol Movies lac. v. City of Passaic, 476 A.2d 869 (I984). Notice ~ Did notice's 'call if you have any questions' statement satisfy owner's due process rights? Tow, of Randolph ~: Estate of Mildred White, 693 A.2d 694 (Vermont) 1997 While owned 56 acres in Randolph, Vt., on which he kept junk vehicles. On May 17, 1993, the town's zoning administrator sent White a lhree-page violalion notice stating White's accumulation of junk vehicles and other debris on the land violated the town's zoning regulations. The notice informed White he had Io stop accumulating junk and had to have the already-accumulated junk removed by June 1, 1993. According to state law, fines of up to $50 would be assessed for each day of violation, so the letter instructed White lo remove the junk by June 15 to avoid penalties. The notice told White to conlact the zoning administrator or town altoruey with any questions and to inform the administrator when the violation was cor- rected, so lhe site could be inspected. In August 1993, the lown filed a complaint against White, seeking a court order to have the junk removed and to assess fines. The town asked for judgmenl withoul a trial, arguing the only issue that required a trial was lhe amount of lhe fine. White also requested judgment without a trial, asking the court to dismiss the town's complaint, arguing the notice failed to inform him of his right to request within 15 days a hearing to contest the administrator's decision. The court denied White's requests and granted the town judgment without a trial. It found the notice was properly issued and said White was bound by lhe administrator's decision because he didn't contest it before the zoning board of adjustment. The court did not directly address While's due process claim. At a later hearing, the court ordered White to remove the junk vehicles within 45 days and said he would be fined for each day he failed to do so. White appealed, arguing the notice violaled his due process rights by not informing him that he could file a requesl for a hearing within 15 days. Due process violations occurred when lhe stale deprived individuals of their taler- est in using property. In addition, White said the notice failed to inform him that the hearing was the exclusive remedy for challenging the administralor's decisions, or that, without his requesting a hearing within 15 days, the decision would become final. The town argued il did inform White of his right to a hearing, but that White failed to take advantage of the opportunity. DECISION: Reversed and returned in part. While had a nr,~lf.c'l.-,l~le inlcrcsl in his junk cars, and the notice violaled his