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040291 Planning AGENDA PLANNING COld~ISSION MEETING OF APRIL 2, 1991 CITY OF NEW HOPE, MINNESOTA 7:30 p.m. 1. CALL TO ORDER 2. ROLL CALL 3. PUBLIC HEARINGS 3.1 Case 91-07 Request for Preliminary Plat, Don Harvey Second Addition, Quebec and Winnetka Avenues, Winnetka Properties/Don Harvey, Petitioner 3.2 Case 91-08 Request to for Site/Building Plan Review for Revised PUD Site Plan, New Hope Mall, 4203-39 Winnetka Avenue North, New Hope/U.S. Swim Partnership, Petitioner 4. COMMITTEE REPORTS 4.1 Report of Design and Review Committee 4.2 Report of Codes and Standards Committee 5. OLD BUSINESS 5.1 Limitation of fast food restaurants in shopping centers 5.2 Miscellaneous issues 6. NEW BUSINESS 6.1 Approval of Planning Commission Minutes of March 2, 1991. 6.2 Review of City CSuncil Minutes of February 25, 1991, and March 11, 1991. 6.3 Review of EDA Minutes of February 11, 1991. 7. ANNOUNCEMENTS 8. ADJOURNMENT CITY OF NEW HOPE PLANNING CASE REPORT Planning Case: 91-07 Request: Request for Preliminary Plat for Don Harvey 2nd Addition Location: Quebec and Winnetka Avenues North PID No.: 17-118-21 32 0001 Zoning: I-1 (Limited Industrial) Petitioner: Winnetka Properties/Don harvey Report Date: March 29, 1991 Meeting Date: April 2, 1991 UPDATE Since the last Planning Commission meeting the developer and the City staff have met and discussed the need for a site plan and a drainage plan to be submitted before further action can be taken on the preliminary plat. The site plan is needed to show how existing non-conformities on the developed portion of the property will be corrected and to show specific percentages for lot coverage and green area ratios. The drainage plan is required because Old Dutch Pond is a designated DNR protected wetland and both a treatment basin and storm sewer improvements will be required. The drainage improvements will require construction and easements which extend beyond the plat to the north. The developer is agreeable to providing both a site and drainage plan to address staff concerns, however the plans have not yet been submitted to the Ci~,~or review. Staff recommends that this case be tabled for one month until the appropriate plans are submitted. Attachments: March Planning Case Report Preliminary Plat CITY OF NEW HOPE PLANNING CASE REPORT Planning Case: 91-07 Request: Request for Preliminary Plat for Don Harvey 2nd Addition Location: Quebec and Winnetka Avenues North PID No~: 17-118-21 32 0001 Zoning: I-1 (Limited Industrial) Petitioner: Winnetka Properties/Don harvey Report Date: March 1, 1991 Meeting Date: March 5, 1991 BACKGROUND 1. The petitioner is requesting subdivision and Preliminary Plat approval of Don Harvey 2nd Addition located adjacent to and northwest of the newly constructed Quebec Avenue extension. The request is made pursuant to Chapter 13 of the New Hope Code of Ordinances. 2. The property is zoned I-1 (Limited Industrial) and is proposed to be subdivided into two lots: the undeveloped property would be platted into one lot abutting the west side of Winnetka Avenue, while the easterly portion of the property with the two existing' warehouse/ manufacturing buildings would be platted into another lot. 3. The original proposal for the subdivision of this property called for subdividing all of the Harvey property into two blocks with five lots. The petitioner revised the plan to plat only the property east of Quebec Avenue into one lot (final plat now under consideration). This proposal is for the remaining~portion of the property, where 3 lots and an outlot were originally proposed. 4. The 7.5 acre parcel was first developed in 1976 with two identical warehouses located in the middle of the site sharing a back-to-back loading zone. 5. The -minimum lot area requirement for properties in the I-1 Zoning District is one (1) acre and the minimum lot width requirement is 150 feet. Lot area sizes and widths of the proposed plat are as follows: Area Width Lot 1, Block 1 111,580 sq.ft./2.56 acres 314 ft.(On Winnetka) Lot 2, Block i 180,525 sq.ft./4.14 acres 341 ft.(On Quebec) Quebec Avenue Dedication 22,837 sq.ft./.52 acres Winnetka Avenue 14,080 sq.ft./.32 acres Dedication TOTAL 329.022 sq.ft./7.5 acres The two proposed lots meet the area and width requirements. Planning Case Report 91-07 ~. March 5, 1991 Page -2- 6. The Preliminary Plat has been sent to the appropriate City Department Heads, utility companies, and County agencies for review and comments. 7. Property owners within 350' of the request have been notified. ANALYSIS 1. The two-lot proposal for the property is an improvement over the original three-lot/outlot proposal, however, there are still a number of issues that need to be resolved. 2. Staff requests that the petitioner submit a site plan to show how the existing non-conformities on Lot Z, Block i will be corrected. Staff met with the petitioner last fall and discussed a concept plan to increase green area and landscaping. A site plan should be submitted in conjunction with the Preliminary Plat that addresses: A. Specific percentages for the lot coverage and green area for the developed parcel to determine if the 40%/35% standards are met or if a variance will be necessary. B. Elimination of bituminous in front of the two buildings and the incorporation of landscaping in this area. C. Revised parking plan to eliminate parking in front of the buildings in conjunction with increased green area. D. Driveway improvements: curb-cut and new access at northeast corner of Lot 2 on Quebec Avenue; resolve existing curb-cut issue at northwest corner of Lot i on Winnetka Avenue. E. The off-site refe[ences to Lot I and Lot 2, Block 1, Don Harvey Addition, east of the proposed plat need to be deleted and corrected - this property has been platted as one lot. 3. The proposed plat contains two building on one lot and a variance will be required. 4. If the bituminous in front is replaced with green area, Fire Department connections on the front of both buildings will need to be relocated and truck directional signs should be installed (see staff sketch). 5. Drainage and utility easements need to be shown on the plat. The Pre- liminary Plat states "Easements to be dedicated on final plat as required by City". 6. Aside from the site plan, a second major issue that needs to be addressed is drainage. Existing drainage is conveyed overland across private property to the north to Old Dutch Pond. The City Engineer is recommending that a storm sewer system be installed. Shingle Creek Watershed and the DNR will also require a storm water treatment basin to Planning Case Report 91-07 March 5, 1991 Page -3- collect water before it enters Old Dutch Pond, a designated DNR protected wetland (see City Engineer correspondence). Both the storm sewer improvements will require construction and easements which extend beyond the plat and will need approval from the appropriate agencies. S~aff requests the petitioner to submit a drainage plan that addresses these concerns. 7. The City Attorney has examined the plat and.has found the legal descrip- tion to be inaccurate and this needs to be corrected. 8. Minnegasco responded when the original plat was sent out that they have an easement near the north line of the plat and this should be shown on the plat. 9. Hennepin County responded with the following requests: A. Seven additional feet of right-of-way should be dedicated on Winnetka Avenue for a uniform width - this is shown on plat. B. All access from the plat to CSAH 156 should be limited to proposed Quebec Avenue. The existing 'driveway located approximately 220 feet north of proposed Quebec Avenue must be removed and the area within County right of way restored. The other items outlined in the County letter regarding utility permits and restoration are routine. RECOMMENDATION Due to the large number of items that need to be addressed on the Preliminary Plat, staff recommends that the plat be tabled. Staff requests that the petitioner submit a site plan and a drainage plan to address the concerns raise in the staff report..' ~he site plan would then be reviewed by Design & Review and brought back tO the Commission. Staff has notified the applicant of this recommendation. Attachments: Section/Zoning Map Preliminary Plat Engineer Correspondence & Sketch (2-22/2-27-91/9-20-90) Attorney Correspondence (2-22-91) Hennepin County Correspondence (2-20-91) Minnegasco Correspondence (9-19-90) Staff Sketches & Correspondence (2-14-91) Previous Staff Report Case 90-27 (9-28-90) PRELIMINARY PLAT OF: DON HARVEY 2ND ADDITION WINNETKA PROPERTIES, INC. ,' 7147 SANDi)URG RD. GOLDEN VALLEY. MN 55427 ,) CITY OF NEW HOPE PLANNING CASE REPORT Planning Case: 91-08 Request: Request for Site/Building Plan Review for Revised PUD Site Plan Location: 4203-39 Winnetka Avenue North PID No.: 18-118-21 11 0016 Zoning: B-4 (Community Business) Petitioner: New Hope/U.S.Swim Partnership \ Report Date: March 29, 1991 Meeting Date: April 2, 1991 BACKGROUND 1. The petitioner is requesting Site/Building.Plan Review approval for a revised PUD site plan for the New Hope Mall, pursuant to Section 4.039A (lc & d) of the' New Hope Code of Ordinances. 2. Planning Case 85-38 dealt with the major redevelopment/expansion of the New Hope Mall, including a text amendment to permit a commercial recreational use in a B-4 zoning district, a conditional use permit for a PUD amendment, and preliminary plat approval to combine two lots. Planning Case 86-12 dealt with the construction approval, approval of the final plat and the Planned Unit Development Agreement for the conditional use permit. 3. The PUD Agreement that was approved included specific blueprint exhibits for the PUD, one of which was the Site Plan( labeled "PUD Exhibit B"). It is this plan which is proposed to be replaced with a new "Exhibit B" by this request. 4. This filing results from a City order which was issued to the property owner after unauthorized changes were made to the site in 1988 and 1989. Problems with the site are outlined in the September, 1989, letter from the Manager, and included: A. The parking lot was re-striped and was changed considerably from the original plan. No new plan was submitted or approved prior to the striping being done. B. The handicapped parking stalls do not meet with or conform to State law, as they are undersized and not adequately marked. C. Due to the re-striping, some of the driving aisles are now less than 24 feet wide, as required by City Code, and are not properly marked with yellow paint. Planning Case Report 91-08 ~ April 2, 1991 Page -2- 5. The City directed the property owner to submit a new architect-certified site plan for review/approval. The Building Official has met several times with the architect hired by the New Hope Mall to give advice on the revised plan. 6. The City has received a plan that has been certified by the architect with this filing and all problems appear to be resolved. ANALYSIS 1. Staff contacted the Chair of the Design & Review Committee to confirm whether D & R wanted to review this plan prior to the Planning Commission meeting. The Chair and staff both felt it was unnecessary as the submittal was required by the City and the new site plan addresses the concerns outlined in the orders issued by the Inspections Department. 2. The following problems will be corrected with the approval of this plan: A. Width of parking stalls - City Code states that parking spaces shall not be less than 8 feet 9 inches wide and 19 feet in length. Ail stalls shown on the plan meet or exceed the width/length requirements. Ail stall stripes are to be painted in white. B. Elimination of parking stalls in wrong locations - See NO PARKING AREAS below. C. Narrow driveways/aisles - Ail drive aisles are shown at a 24-foot width and meet City requirements. Curbs at the five entrances are to be painted in yellow. The end of stall stripes adjacent to the drive aisles are to be painted yellow, as are the rounded curbs at the drive aisles that intersect in the center of the mall. D. Striping/signing of NO P~RKING areas - All NO PARKING open areas are to be clearly marked and striped with yellow paint (these are located primarily at the rear of the mall on the north and west). Ail no parking areas along the sidewalk (near Applebees, the Subway Shop and U.S. Swim) are to have painted yellow curbs. E. . Fire lanes - Fire lanes throughout the site are to be defined with one foot wide yellow lines, where appropriate, and are to be signed "NO PARKING-FIRE LANE". F. Parking in loading zones - Existing LOADING ZONE sign to be removed near Applebees; approved loading areas to be signed "NO PARKING- LOADING ZONES". G. Handioapped parking stalls - Width - 10 handicapped parking stalls to be provided with a minimum width of 12 feet and ranging up to 13' 1" in width. Stall length will be a minimumof 19 feet. Planning Care Report 91-08 April 2, 1991 Page -3- H. Han4icapped parking stalls - Bignage - All handicapped parking stalls to have handicapped wheelchair symbol painted on parking surface. Ail stalls to be marked with HANDICAPPED PARKING signs and additional 12" x 6" signs are to be mounted below standard handicapped sign which reads "UP TO $200 FINE FOR VIOLATION". i. Non-conforming signs -A number of signs will be removed: "30 Minute Parking Only", "15 Minute Parking Only", and existing painted curb stenciled with Block Buster Video to be removed. 3. The original 1986 PUD site plan showed a total of 463 parking stalls. The revised plan shows 476 stalls, or an increase of 13 parking spaces. The plan meets the parking requirements of the City Code. 4. The plan would be implemented this spring, as soon as the weather permits. RECOMMENDATION Staff recommends site/building plan review approval of the revised PUD site plan for the New Hope Mall. Staff recommends that th~ Planning Commission designate the new plan, dated 2/4/91, to replace 1986 "PUD Exhibit B". Attachments: Section/Zoning Map Petitioner's March 6, 1991 letter City's September 6, 1989 letter New Site Plan Original PUD Exhibits Original Planner's Report - New Hope Mall Renovation 4401 Xylon Avenue North New Hope, Minnesota 55428 Phone: 533-1521 SEP 7 September 6, 1989 Mr. Peter J. Obernesser Managing Partner New Hope/US Swim Partnership 20 Boulder Crescent Suite C Colorado Springs, CO 80903 SUBJECT: NEW HOPE CITY CENTER Dear Peter: I am sorry I am so slow in responding to your letters of August 10 and August 18, 1989. I think we can work out the drainage problem and I have discussed this with the Building Official. However, if and when the situation with McDonalds gets resolved and construction begins, I would like to request that both parties see what can be done to improve the drainage as a driveway between the two properties is developed. There is another matter that just recently came up that is causing a re&l problem for the City and is further jeopardizing the Certificate of Occupancy. It involves the recent striping of the parking lot. ~' What apparently started out as good intentions, now has developed into what I consider to be a bit of a mess. The City assumed, along with myself, that the striping recently done on the parking lot would duplicate what was existing. That was the plan originally submitted to the City and made part of the planned uhit development agreement. Since there was no subsequent plan submitted, our assumption was that the lot would be re-striped exactly as it existed in the past. The striping that was done on the lot has ~hanged considerably from the original plan. No new plan was submitted to the City prior to the striping being done. This is the first problem. The second problem is that the handicapped parking stalls do not meet with and do not conform to State law. They are undersized and not adequately marked. The third problem is that some of the ) ... Family Styled City ~ For Family Livin~ Peter J. Obernesser Page 2 September 6, 1989 driving aisles are now less than 24 feet as required by the City code and not properly marked with yellow paint. The fourth problem exists in that whoever the company hired by Larry Grell, chose to defy a direct order to cease work until the C~ity was contacted with a striping plan. The inspectors went back and found that the lot had been completed although they had been told not to proceed. I would appreciate anything you can do to rectify this. Orders have been given by the inspections department to correct the striping and I hope that something can be worked out. I am afraid I will have to withhold any action on the Certificate of Occupancy until the striping is rectified. Sincerely, Daniel J. Donahue city Manager DJD/j f cc= Building official Ixllllnl Wlaflel#l Mill ~ ~ NEW HOPE ~ALL Parkln8 Lot 'Resl~lpln8 ' And Sllnale frepa,ed ~EXlITINO K- EW HOPE '~ ~ PARKING TABULATION z Building Arel 71,144 Iq. FL ~ ~ ~ ~ P~rklng Provided ....... 480 ~1~18 HDCP. Plrklng Required --480 Ildl ~ldld By 80-10 I0 IIINt Ptewlded -- NOt,, ...., A,... ,..,..,. ~ I [ Fire Lille (Ihowfl Thlt)~ I NO PARKING Aflowtd IR Fbl'Lifle8 ' I NOTE~ ExIItlnl HOCP. 811nl TO Remlln Mill BO Provided With Afl Addltlonil 81gfl Shown Below. Now HOCP. lions 8hell Milch The lllellfll liens. ~ ' · ~, . 42ND AVENUE NORTH (ROCKFORD: R~AD) ....... ' SITE PLAN Sheet Ne. ................... Of One Ellltllll Wlnnelkl Mill .~ - NEW HOPE MALL '~ ~ ~ K' ~TION ""-- II~l ~lded Il I0-10 ~ded ~ I lllfl -- I Ihlll '~ 42ND AVENUE NORTH tROCKFORD; R~AD) PARKING TABULATION Building Area 79,844 sq. Ft. Existing Parking (1986 PUD)--463 Stalls Proposed Parking ~ 476 Stalls HDCP. Parking Required 476 Stalls Divided By 50 =10 10 Stalls Provided NOTE: Shaded Areas Indicate I I Fire Lanes (Shown Thus)- NO PARKING Allowed In Fire Lanes NOTE: Existing HDCP. Signs To Remain Must Be Provided 'Wit, lt..,An Additional Sign Shown Below. New HDCP. Signs Shall Match The Existing Signs. Ilgn, mu~.~l~e a 12'x6' sign below the ttandard handicapped sign which readl as follows ' Colar - White on Bluo (Rellect=titod) Per Mlnnesetl SI&lute IG9.346. Subd. 2 Amended PLANNED UNIT DEVELOPMENT CONDITIONAL USE PERMIT ~. FOR PROPOSED NEW HOPE MALL 1. Pa~ti~s ~to Agreement. This Agreement dated the =~'%-day of (~C'~h,.~ , 1986 is between the City of New Hope~'v '" -~ Minnesota Municipal Corporation (hereafter City) and New Hope/U.S. Swim Partnership, a Colorado general partnership, (hereafter Developer). 2. Subject ProDert¥. That the Developers are the owners of the following described property which is the subject of this Agreement: See Exhibit A attached 3. Conditional Use Permit Planned Unit Development Approval. The Developers have asked the City to approve a Planned Unit Development (PUD) for the subject property consisting of the following uses: a commercial recreation facility and retail strip center allowing for permitted and conditional uses authorized in a B-4 zone per the New Hope Zoning Code. The City hereby approves the PUD conditional use permit on the condition that the Developers enter into this Agreement and comply with the terms contained, herein and Chapter 4.19 of the New Hope Code. 4. Platting Requirement. The Developers agree to plat the property pursuant to Chapter 13 of the New Hope City Code. That a preliminary plat has been submitted and approved. The Developer agrees to submit to the City a final plat for approval on or before October 31, 1986. 5. Development Exhibits. The Developers shall develop the plat in accordance with the plans shown on the following exhibits. If the exhibits vary from the written terms of this Agreement,,~.~h,% written terms shall control. The exhibits have be~n provided by the Developer, are on file with the New Hope City Clerk and are identified as follows: Exhibit B -- Site Plan Exhibit C -- Landscape Plan Exhibit D -- Building Elevation Plans Exhibit E -- Floor Plans - U.S. Swim & Fitness Club Exhibit F -- Floor Plans - Retail Area of New Hope Mall Exhibit G -- As Built Survey (05/27/86) Exhibit H -- Ingress and Egress Easement from Winnetka Associates 6. Shared Ingress and Egress. The Developers agree to provide ingress and egress to all uses on the subject property pursuant to the site plan identified as EXhibit B. Developers KEY ON COMMON NAiil BOTANICAL NAMI IIl~l IIOOT __ '"I Ji t-' ......... __ ~;,,,~..,_.-., BOUNDARY, TOPOGRAPHIC, AND LOCATION SURVEY FOR: :': ....... " -'< OFFICES AMERICA, INC. ..~ I I ~ - ......... =._-:F-=~. '",..,','~. ".4.'" ....... °'" ....... . ~,. COUNTY STATE AID HIGHWAY NO,;..9&~PLA..~T ' northwest associated consultants, inc. PLANNING REPORT TO: Dan Donahue FROM: Alan Brixius DATE: 27 November 1985 RE: New Hope Mall Renovation FILE NO: 131.01 - 85.38 BACKGROUND Offices America, Inc. has a contract to purchase the New Hope Mall. They have applied for several development requests to allow for the redevelopment of this existing shopping center. These applications include: 1. Text amendment to permit a commercial recreational use in the B-4 zoning district. 2. Conditional use permit for a PUD amendment. 3. Variance from parking stall and aisle dimensions. 4. Subdivision to combine two lots. TEXT AMENDMENT The applicant is proposing to expand the existing New Hope Mall to 91,800 square feet, of which 43,650 square feet is intended to be occupied by U.S. Swim and Fitness, a health club. The health club facility is a commercial recreational use which is not allowed in the B-4 zoning district. Currently only New Hope's B-3 district allows this type of facility as a permitted use and the industrial district allows it as a conditional use. The proposed health facility is consistent with the findings of the 42nd Avenue/ City Center Market Study which identified the lack of recreation and entertain- ment facilities in the City Center area. The introduction of the health club to the shopping mall would be a step to improving the area's market attraction by introducing a use that would serve to draw people to this commercial area. The increased attraction created by the health club should serve to benefit the new and existing commercial establishments in the New Hope City Center area through business interchange. 4820 m nnetonka blvd. minneapolis, mn, ste. 200 55416 (612) 925-9420 Dan Donahue 27 November 1985 Page Two Based on New Hope's planning objectives for the City Center, we would recommend that the City strongly consider amending its Zoning Ordinance to allow such a use in the B-4 zoning district. Health club facilities are generally characterized by having large buildings to house their activities, high client turn-over and traffic generation. These use characteristics must be addressed in any zoning text amendment. The City has two options in considering a possible zoning text amendment: 1. Permitted Use: Due to their high traffic generation and more regional market attraction, commercial recreational uses were listed as permitted uses in New Hope's B-3, Automobile Oriented Commercial Zoning District. The City must consider the impact of such a use in the B-4 zoning area. The intent of the B-4 zoning district is to provide for the establishment of commercial service and retail activities which draw from and serve customers from the entire community or subregion. Commercial recreation use would be consistent with this stated intention. Review of the New Hope Zoning Map reveals three B-4 zoning districts, each containing shopping centers ( City Center area,. Midland. Shopping Center, and'Poste Haste Center). While each of the areas is located along major traffic carrying streets, only the City Center provides sufficient buildable area to accommodate a health club and its related parking area. As noted earlier, the impact on adjacent land uses is expected to be beneficial due to increased market draw to the area. 2. Conditional Use Permit: If the City would like to be more discretionary on the review and approval of commercial recreational uses in the B-4 district, the use could be allowed by conditional use permit, as it is in the industrial districts. The New Hope commercial recreation facilities con- ditional use requirements a~e listed as follows: "Commercial Recreation Facilities. Commercial Recreation, provided that: (a) Access. The site of the proposed use has direct access to an arterial street as defined in the City Code, without utilizing public streets of a lower traffic handling classification to reach the arterial street, and (b) Proximity to Residential. The outside perimeter of the site, as legally described is, 500 feet or more from the boundary of a residential zoning classification, or (c) Compatibility. The architectural appearance and functional plan of the building and site shall not be so dissimilar to the existing buildings or area as to cause impairment in property values or constitute a blighting influence. Dan Donahue 27 November 1985 Page Three (d) Screening from Residential. Parking areas shall be screened from view of residential districts and shall be curbed with continuous concrete curbs not less than six inches high above the parking lot or driveway grade, at the curb line. (e) Access. Vehicular access points shall be limited and designed and constructed to create a minimum of conflict with through traffic movement. (f) Lighting Shielded. All lighting shall be hooded and-so directed that the light source is not visible from the right-of-way or from a residential zone or use. (g) Surfacing. The entire area other~t~ that occupied by buildings, structures or plantings shall be surfaced with a bituminous or concrete material which will control dust and drainage. The material and grading shall be subject to the approval of the City. (h) Landscaping. Landscaping shall be provided and the type of planting material and the number and size of plants shall be subject to the approval of the City." With the exception of provision (b), most commercial uses in the B-4 zoning district are required to meet the provisions outlined above through the City's general zoning provisions. The conditional use process does require a more detailed review process which may be desired by the City. Commercial recreational muSeS in the B-4 zoning district appear to be acceptable. As described in either option, the City determines how they would like to treat~ the uses. Upon making this decision, City staff can prepare the appropriate text amendment. CONDITIONAL USE PERMIT PLANNED UNIT DEVELOPMENT Due to the integration of uses and shared ancillary amenities, shopping centers are required to be planned unit developments. Planned unit developments are reviewed and processed in three stages. The applicant has submitted a concept plan for review at this time. The following is a site plan review based on the City's Zoning Ordinance and the 1977 Commercial Core Guidelines. Building Massing and Appearance ~ The applicant is proposing a 91,800 square foot shopping center, 43,650 square feet will be occupied by the U.S. Swim and Fitness Health Club. The balance will be leased for retail sales and service and 6,650 square feet is designated as service area. Dan Donahue 27 November 1985 Page Four The southern building extension raises a concern over the isolation of the K-Mart facility from the remainder of the City Center area. While the site plan provides a driveway connection between the Mall and K-Mart, the southern building serves as a visual barrier separation of the two commercial facilities. The building orientation is toward Winnetka and as such the building elevation visible to east bound motorists on 42nd will be the back of the building. This layout is undesirable and we would suggest a consistent architectural and landscape treatment on all sides of the southern building expansion. Display area exposure is also suggested along the southern wall to provide added exposure to 42nd Avenue. The archi- tectural changes are suggested to promote a continuous and coordinated appearance for the City Center area from all directions, as recommended in the City Center guidelines. The applicant is proposing a canopy along the south and east elevation, which will provide an attractive mall image. The owner of Winnetka Shopping Center has expressed some interest in continuing this architectural element to the Winnetka Center. The west elevation is proposed to be concrete block painted to match the brick front facade. This elevation is highly visible from 42nd Avenue and properties to the west. As such, the back of this building should be treated in an architectural and landscape manor consistent with the front of the building. Extending the canopy may not be desirable, however, the building materials should be consistent. Circulation and Parking Review of the proposed site plan indicates a well designed internal traffic circula- tion system which ~ccomplishes the following items: 1. Limited direct access points to Winnetka Avenue and 42nd Avenue. 2. Utilization of a shared access drive from Winnetka in conjunction with Winnetka Mall. '~¥ ~ 3. The site plan provides internal driveway connections to the other commercial area in the City Center. 4. The site plan shows a pedestrian sidewalk connection between the New Hope Mall and the Winnetka Shopping Center. The following parking items must still be addressed: Based on the New Hope parking requirements of six parking stalls for every 1,000 square feet for shopping centers over 30,000 square feet, the following parking calculation was made: Gross floor space 91,800 square feet Cover hallway -6,280 square feet ~ square feet 10% parking credit -8,550 square feet Net Floor Space 76,970 square feet 76,970 ~ 1,000 : 76.97 x 6 = 462 parking stalls Dan Donahue 27 November 1985 Page Five The applicant shows 460 parking stalls, however, the site plan indicates that some of the parking stalls are substandard in dimension when compared to the City's size requirements. The City requires 90 degree parking to provide 64 feet inter- lock to interlock to provide for a 20 foot stall length and 24 foot aisle width. We strongly recommend that City dimensional requirements be observed. We estimate that by enlarging the existing parking stalls approximately 20 stalls will be lo~t. The parking deficiency can be accommodated in a number of ways: 1. Reduce the shopping center building size to reduce the parking demand. 2. Reduce available green space to accommodate more parking. The site already lacks space for snow storage. As such, this alternative is not recommended. A snow storage plan should be provided. 3. Promote shared parking between the shopping centers under the PUD design. This alternative appears to be the most efficient. The over-flow traffic could use Winnetka Center parking. The New Hope Bank being a day time use and the health club more night time oriented could compatibly share parking as needed. The parking area located on the west side of the building contains 41 parking stalls. This area should be designated for employee parking since it will be inconvenient for customer use. A sidewalk should be provided to allow pedestrian access to the employee parking lot. This sidewalk should also pr°vide access to the loading dock area and the trash and service area. Loading Area The site plan shows a loading area sufficient to accommodate two large delivery trucks. An internal building hallway provides access to the loading for the majority of the shopping center, however, the southern extension has no access to this loading area. The service area should.h~ ~esigned to accommodate all deliveries. Direct J deliveries from the western driveway to the southern extension should be dis- couraged rather pedestrian access to the loading area and trash area should be provided. Lighting Plan In the subsequent development stage of the PUD, a lighting plan for the parking lot a6d building must be provided. Said plan should address location, illumination, and lighting fixture styles. Styles and location should be coordinated with adjacent shopping centers. Dan Donahue 27 November 1985 Page Six Landscape Plan Review of the landscape plan shows an extensive landscape layout providing a variety of landscape material. The type and size of the material is acceptable by City standards. Signage The building elevations show that wall signs will be mounted on the canopy. The site plan proposes two pylon signs. The New Hope Sign Ordinance requires the submission of a comprehensive sign plan for a shopping center. SUBDIVISION The parcel exists as two parcels of land. A subdivision must be approved to combine these existing parcels into a single parcel. CONCLUSION The City of New Hope has conducted numerous studies regarding the City Center area. The opportunity now presents itself to implement some of the City's planning objectives for the area. The applicant is now presenting only a concept plan for City approval. As noted in this report, there remains several design elements - that must be resolved between the City and the applicant. These design elements should be discussed to allow any revisions to be shown in the future development stage. cc: Doug Sandstad KEYQ4J COMMON NAIM~ BOTANICAL NAM HOOT IIZE I CITY OF NEW HOPE MEMORANDUM DATE: March 26, 1991 TO: Planning Commission FROM: Kirk McDonald Management Assistant/Community Development Coordinator SUBJECT: Limitation of Fast Food Restaurants in Shopping Centers In February when Taco John's and Frank's Pizza Were both requesting conditional use permits for convenience food establishments in the New Hope City Center and Winnetka Commons Shopping Center, respectively, the staff raised the concern of the centers becoming saturated with food operations. With the new Taco Johns at the City Center, five of the 15 tenants will be eateries. It was the staff's initial feeling that the center could be at or near the limit for such uses in a balanced Community Business District. The Planning Commission made no comment on this issue, however, at the February llth City Council meeting, when the requests were approved by the City Council, the Council requested that the Planning Commission make recommendations as to whether or not the City should place a limit on the number of convenience food establishments in shopping centers. This issue was referred to the Planning Consultant.and City Attorney for their review. Please find their reports attached. The Planning Consultant does not recommend placing a limit on the number of restaurants or fast food establishments allowed in shopping centers. The following observations are made in the report: 1. Adjacent communities do not have restrictions on food establishments in shopping centers and rely on the market' to dictate the tenant composition. 2. Although the percentage of food establishments may be high when based on the number of tenant spaces, the Planner's survey indicates that the percentage of food establishments (based on square footage) in relation to total leasable square footage of each center is only 8%... which is comparable to surrounding communities. 3. The greatest concentration of food establishments is at the City Center (5)...all other shopping centers presently contain 3 or fewer food establishments. 4. Food establishments may draw customers from the entire trade area and/or locate to take advantage of customer traffic generated by larger complementary businesses. 5. The strength of the retail market dictates tenant composition and, due to the amount of vacant space in several of the centers, it would probably not be beneficial to place constraints on tenant composition that would inhibit rates of occupancy. 6. Limiting the number of food establishments would present problems: which tenants would/would not be accepted; how to differentiate between shopping center and free- ' standing establishments. The Planner concludes that the zoning ordinance outlines permitted/ conditional uses for each district and that existing regulations should provide adequate controls for design and performance standards. He also states that the market is the best determinant of tenant composition. The City Attorney also responded to the question as to whether the City can limit the number of fast food establishments in shopping centers. It is the Attorney's opinion that a prohibition against the concentration of fast food establishments in shopping centers would not be enforceable. Because the zoning ordinance allows fast food establishments by conditional use permit, if the establishment meets the CUP requirements, the City has no choice but to issue the CUP. If the City desires to limit the number of fast food establishments the requirements for a CUP could be redrafted so that they were more difficult to meet (parking or square footage requirements). However, any new requirement must be reasonable and cannot be arbitrary. The Attorney does not feel it would be wise to limit the tenant base of shopping centers. He feels it would be wiser to allow the market to dictate the number of fast food establishments in a shopping center than attempting to legislate the appropriate number. ~,\: ~ RECOMMENDATION Staff is unaware if the entire Planning Commission wants to review this issue or if you want to refer the matter to the Codes & Standards Committee. Due to the short Planning Commission agenda, the .non-controversial subject matter, and the similar opinions expressed by both the Attorney and the Planner, staff felt that perhaps the entire Commission could act on the issue so the recommendation could be forwarded to the Council in a timely manner. Staff recommends that, based on the opinions and reports of the City Attorney and Planning Consultant, the Commission forward to the Council a recommendation that the City not attempt to limit the number of fast food establishments in shopping centers. Nort we ASS ciated consultants, Inc. ~ U R B A P L N I NG · DES I G N M AR K E T R ES E A R C H PLANNING REPORT TO: Kirk McDonald FROM: Elizabeth Stockman/Alan Brixius DATE: 14 March 1991 RE: New Hope - Shopping Mall/Convenience Food Survey FILE NO: 131.00 - 91.06 BACKGROUND The City of New Hope has recently raised a concern with respect to the number of convenience food establishments located within their shopping centers. Due to the existing and potentially increased numbers of convenience food establishments located in New Hope shopping centers, the City is questioning the balance of commercial and service activities in the community. The City Council has requested that the Planning Commission make recommendations as to whether or not the City should place a limit on the number of food establishments. In response to the aforementioned concerns, NAC has completed a survey of shopping centers in surrounding communities. The following analysis includes the survey results and addresses each concern. ~,~: ~ ISSUES AND ANALYSIS In review of the number of food establishments in New Hope, a survey of existing local conditions as well as a survey of shopping centers in adjacent communities was conducted. Based on our review, the following observations are offered: 1. Adjacent communities contacted do not have any restrictions on food establishments in shopping centers. Most communities rely on the market to dictate the tenant composition of the shopping center, provided the proposed use is allowed in the applicable zoning district. 4601 Excelsior Blvd..Suite 410.Minneapolis, MN 55416.(612) 925-9420. Fax 925-2721 2. As ~he survey results indicate in Figure 1, the percentage of food establishments (based on square footage) in relation to the total leasable square footage of each shopping center for the ~ity of New Hope is eight percent. Although the City indicated that the percentage of food establishments was higher when based on the number of tenant spaces, survey findings show results at a percent comparable to and in some cases, less than the percentages of food establishments in shopping centers of surrounding communities. 3. The restaurant operations survey information (Figure 2) completed by the City gives a detailed account of the specific food establishments (and the square footage of each) broken down by shopping center. As indicated by this inventory, the greatest concentration and variety of food establishments are located in the New Hope Mall - a total of five, including the Taco John's which is not yet open. All other shopping centers contain three or fewer food establishments (although this may change dependent upon the number of vacancies). 4. Restaurants and convenience food establishments individually or accumulatively, can serve to draw customers from the entire trade area. In other situations, the food establishment may exist as a'suscipient business that chose its location in order to take advantage of customer traffic generated by a larger complementary business. In the case of the New Hope Mall, both of these market conditions exist. The restaurants do provide some accumulative attraction for the City Center area. Also, a number of shopping center food establishments, as well as the freestanding food establishments, greatly benefit from their proximity to the U.S. Swim and Fitness Health Club. The operational characteristic of the Health Club is complimented with the convenience and entertainment opportunities of the various food establishments. 5. Currently, ~'~ character of the shopping center and the strength of the retail market dictate the tenant composition of New Hope's shopping centers. This offers the individual shopping centers flexibility in leasing their available vacant space. Due to the amount of vacant space in the Midland Center and the Winnetka Commons Center, it may not be beneficial to place artificial constraints on the tenant composition of the shopping centers that would serve to inhibit a higher rate of occupancy. It is in the best interest of the City, shopping center owner, other shopping center tenants to provide a high occupancy rate of complementary businesses in the local shopping centers. 2 6. From a zoning and legal perspective, limiting the number of food establishments in a shopping center presents a number of problems. It woUld be extremely difficult to dictate who would and who would not be acceptable as tenants within a shopping center. How would the City differentiate the shopping center food establishments and freestanding food establishments in the same district. This situation is likely to result in conflicts. CONCLUSION The success of the New Hope shopping centers can be partially attributed to the food establishments in each center. Restricting the number of food establishments within shopping centers would be an artificial obstruction to shopping center leasing, tenant composition and market support. This type of regulation may be detrimental, specifically for shopping centers with high vacancy rates. Currently, the zoning districts outline the uses that are permitted within a specific area. In commercial areas, restaurants are permitted uses and fast food establishments are conditional uses. These existing regulations should provide adequate control when addressing design and performance standards for these uses. Within the existing zoning controls, the market is the best determinant of tenant composition and the vitality of the Community's shopping centers. cc: Doug Sandstad Steve Sondrall 3 NEW HQPE SHOPPING MALL/FOOD ESTABLISHMENTS SURVEY RESULTS LISTED BY CITY Average Total Total Percent , Number Total Number Sq. Ft. of Food Shopping Leasable Food o.f Food Establish- Malls Sq. Ft. .Establish- Establish- ments based Surveyed in Malls ments ments on Sq. Ft. Columbia Heights 3 123,180 1 4,000 3 2% Crystal 1 69,000 1 8,300 12 0% Fridley 5 201,103 6 18,422 9 2% Golden Valley 3 144,000 2 4,700 3 3% New Hope 6 421,000 16 33,950 8 0% Maple Grove 3 369,350 6 14,730 4 0% Plymouth 4 334,606 6 39,683 11 9% Robbinsdale 2 203,943 6 21,000 10 3% AVERAGE 3.38 233,272.75 5.5 18,098.13 7.74% SOURCE: Northwest Associated Consultants, Inc. Figure 1 "RESTAURANT" OPERATIONS SURVEY City of New Hope 2-22-91 SHOPPING CENTER (B-4 Zone): NAHE: SIZE: FLOOR AREA RATIO: CODE! (7.8,9): POSTE ~TE 14,000 sq.ft. Die Piper Inn 3,000 square feet MIMMEIT~COI~ONS 43,000 Brue$geres Bagels 1,900 " 4% 8 Gun8 Ho 1,800 " 7' Restaurant" *F~rankies~To-Go (Not yet open) l,650 " 42 8 8-'Fast Food" TOTALS 3 5,350 ~-I2Z 9-Take-Out Only HIDLAND CIDITER 69.000 Dominoes Pizza 1,500 2% 9 Kinhdo 1,600 2% 7 G_~oody's Subs 800 1% 9 TOTALS 3 3,700 NLq{ HOPE 8ALL 79,000 Applebees 3,000 42 7 Subway 1.100 1% 8 Little Caesar's 1,500 2% 9 T.C.B.Y. 1,100 1% 8 *T~aco Joia (Not yet open) 1,300 22 8 TOTALS 5 " 8,000 102 VINMKT~ CENTER 92,000 Circus 11,000 122 7 Zappy*s 800 12 9 Super Valu (Counter) 900 1% 9 TOTALS 3 12,700 [-P, AItT CENTER 124,000 Deli 1,200 1% 8 SHOPPING CTR TOTALS 421,000 16 Businesses 33,950 8Z Dominoes Pizza (62nd Ave) 2,200 3iZ 9 Broadway Pizza l,O00 8 Country Kitchen 3,000 7 Hardees 3,200 8 McDonalds 4,500 8 Ponderosa 5,200 7 New Hope Bowl .l,O00 7 Pizza Hut 1,400 9 Port Arthur 3)[00 7 Papa's Cafe 1,500 7 Sunshine Factory l],000 7 Taco Bell 1,800 8 Boss Donuts 1,600 8 13 Businesses 42~500 29 76,650 (2,630 sq. ft. average) ## Note :ha: two businesses are hoc yeC open*. Of :he to:al, 29, 10 are "Restaurants", 12 are "Fas: Food", 7 are Take-Out Figure 2 CORRICK & $ONDRALL $811 WEST BROADWAY ROBI~SDALE, MII~IESOTA 55422 TELEPHONE (E 12) 53S-224 I FAX (612) ~33-2243 LEGAL AEIIISTANTE CDRRICK LAW OFFICES, P.A. WILLIAM J. ¢ORRICK I_~¥ONNE E. KESKE STEVEN A. SONDRALL, P.A. SHARON D. DERBY STEYEN A. BONDRALL MICHAEL R. LAFLEUR MARTIJ~I P. MALECHA WILLIAM C. STRAIT Narch 20, 1991 Hr. Kirk HcDona3d Hanagement Asst. City of New Hope 4401Xylon Avenue North New Hope, HN 55428 RE: Limitation of Fast Food Establishments in Shopping Centers Our File No. 99.40040 Dear Kirk: This letter is in response to recent correspondence you transmitted to the City Planners in connection with fast food establishments in shopping centers. Specifically, staff has been asked to research the question of whether we can limit the number of fast food establishments in shopping centers. It is my opinion ~harb an express prohibition against the concentration of fast food estab3ishments in shopping centers would not be enforceable. This is due to the fact that fast food establishments exist by conditional use pursuant to the requirements set forth in our Zoning Code. Therefore, if an applicant for a fast food CUP meets the requirements of our Zoning Code, we have no choice but to issue a conditional use permit. However, preventive measures could be taken to guard against a concentration of fast food establishments in shopping centers by redrafting the CUP requirements. Specifically, parking regulations or square footage requirements could be structured in. such a manner that would implicitly limit the number of fast food establishments by making it more difficult to meet the CUP requirements. In other words, if the applicant cannot meet the requirements for a CUP, the City would be able to establish findings of fact for denial of the CUP permit. If we want to regulate the number of- fast food establishments in shopping centers, I recommend that we refer the Mr. Kirk McDonald March 20, 1991 Page 2 matter to the City Planner to consider rewriting CUP requirements that would have the desired limiting effect. I make this recommendation with one caveat. Any new requirement must be reasonable and related to a legitimate governmental purpose. We cannot legislate a requirement that is arbitrary, unreasonable and without a governmental purpose. From a policy point of view, limiting the tenant base of our shopping center landlords may not be a wise idea. It may be wiser to allow the market to dictate the number of fast food establishments in a shopping center than attempting to legislate the appropriate number. A shopping center leased by several fast food establishments may be more economicaqly beneficial to the City than a vacant shopping center and it wiil certainqy be more beneficial to the landlord/owner. If you have any further questions on this matter, please do not hesitate to contact me. Very truly yours, Steven A. Sondrall cc: Daniel J. Donahue, City Manager Alan Brixius, City Planner 440! Xylon Avenue North New Hope, Minnesota 55425 Phone: 535-7527 ~ March 4, 1991 Mr. Alan Brixius Northwest Associated Consultants 4601 Excelsior Boulevard, Suite 410 Minneapolis, MN 55416 Subject: LIMITATION ON CONVENIENCE FOOD ESTABLIS~)AENTS Dear A1: In February when Taco Johns and Frank's Pizza were both requesting conditional use permits for convenience food establishments in the New Hope City Center and Winnetka Commons Shopping Center, respectively, the staff raised the concern of the centers becoming saturated with food operations. With the new Taco Johns at the City Center, five of the 15 tenants will be eateries. It is the staff's feeling that the center could be at or near the limit for such uses in a balanced Community Business District. The Planning Commission made no comment on this issue, however, the City Council requested that the Commission make recommendations as to whether or not the City should place a limit on the' number of food establishment s. Please give us your opinion...does the Community Business District lose its balanced mixture of commercial and service activities when it 'is overrun with food establishments? Is this bad for the City or should we just be pleased that the vacant spaces are being filled? Do other cities limit the number of food establishments located at shopping centers? Enclosed please find the Taco Johns staff report, the pertinent Council minutes, and a survey prepared by Doug Sandstad showing the number of food operations at New Hope's shopping centers. I would appreciate it if you would respond with a short report, at your convenience. Sincerely, Kirk McDonald Management Assistant/Community Development Coordinator KM/lb Encl. As stated cc: Dan Donahue, City Manager Steve Sondrall, City Attorney Doug Sandstad, Building Offi?~l~_ Family $~,,d C~y ~H~ For Family Livi~ CZTY OF m HOP! Planning Case: 91-01 Request: Request for Conditional Use Permit to Allow a Convenience , Food Establishment Location: 4219 Winnetka Avenue North PID No.: 18-118-21 11 0016 Zoning: B-4 (Community Business) Petitioner: Timothy C. Johnson/Taco John's Report Date: February 1, 1991 Meeting Date: February 5, 1991 1. The petitioner has submitted an application requesting a conditional use permit to allow a convenience food establishment in a B-4 Community Business Zoning District, pursuant to Sections 4.123(3) and 4.134(1) of the New Hope Code. 2. Tim Johnson/New Hope City Center/U.S.Swim Partnership is proposing to open a 3,000 square foot Taco John's eating establishment at the New Hope City Center. This matter was tabled at the January Planning Commission meeting because, although application had been made, detailed pl.ans had not been received. 3. The convenience food establishment would be located adjacent to and just south of the existing~ubway Shop. The petitioner has operated the Subway Shop for the past 2-1/2 years and would like to expand the fast food service operation by opening a Taco John's. 4. The use would be eat in/take out for consumption on and off the premises. The dining area would provide seating for 34 customers and service would be from a counter. 5. Plan~ing Case 86-12 approved the 79,000 square foot expansion/renova- tion of the New Hope Mall PUD. Restaurants are allowed as a permitted use in a B-4 Zoning District, however "drive-in and convenience food" establishments require a Conditional Use Permit. By City Ordinance definition, this use is convenience food which is defined as Nan establishment which serves food in or on disposable containsrs,,,for consumption on or off the premises. Customers are generally served at a pick-up station.by clerks rather than served at tables...bywaiters of waitresses". Planning Cass Report 91-01 February 5, 1991 Page -2- 7. Ten conditions ars listed for "Drive-in and Convenience Food". No drive-thru is possible or proposed. The conditions that are appli- cable to this use include: A. Compatibility - architectural appearance of building =o be compatible with .surrounding uses so property owners are not impaired, B. ~ -at boundaries of residential district, a 5-foot green strip to be landscaped, C.Curb&ns - parking areas and driveways to be curbed, D. Vehicle access - access points to be limited so there is a minimum of conflict with through traffic, E. ~ - entire area to have drainage system subject to City approval, F. ~ - entire area other than occupied by buildings/plantings to be surfaced to control dust/drainage, G. Refuse storaae - refuse to bs stored in containers, which shall be screened and enclosed by a fence. 8. Other issues to bs considered for conditional uses in Business Districts include: A. Traffic - the uss should not cause traffic hazards or congestion, B. N~arbv residences - adjacent residentially-zoned land should not be adversely affected because of traffic generation, noise, glare, or other nuisance characteristics, C. Effect on other businesses - existing nearby businesses should not be adversely affected because of curtailment of customers trade brought about by intrusion of unduly heavy non-shopping traffic or general unsightliness. and msst with Design & Review to insure that his request would Be considered by the Couuis.ion. The plans were not su~mitted in time for A. Table the case until Design & Review has had an opportunity to review the plans, or B. Consider the request, due to the simplicity of the case and due to the fact that Design a Review does not routinely review conditional use permit requests. 10. Property owners within 350' of the subject property have been notified. 1. The majority of issues and conditions listsdundsr ~? and ~8 above were addressed in Planning Case 86-12 when the New Hope Mai1 PU~was approved and ars mst. While drainagn, curbing, landscaping, surfacing, and traffic would be important considerations if this was a new free- standing business, these matters were previously addressed for the entire shopping canter development. Planning Cas~ R~porC 91-01 February 5, 1991 Page -3- 2. The City Code requires one parking spa=. for each 15 square fee= of gross service and seating floor area excluding the kitchen, but no= less than 15 spaces for drive-in and convenience food establishments. The CDde would be applicable if this was a free-standing establishmen=. However, the parking requirements for shopping centers were applied the time of the PUD approval and tenants are included in that number. A total of 440 spaces ars provided at the center. ' There are currently three "convenience" food establishments in =he New Hope Mall (TCBY YoqurC, Little Caesar's Pizza, and Subway) and this Taco Johns application will represent =he fourth f&sC food outlet in center. While staff support the filling of vacant spaces and does no= oppose the opening of Taco Johns, one point to consider is the poin= which the cancer nay become saturated with food operations. Five (including Applebee's Restaurant) of the 15 tenants in the center will be eateries. With one-third of the tenants selling food, the can=er is probably at or near the limit for such uses in a balanced Communi=y Business District, which includes co~mercial and service activi=ies. 4. The petitioner has submit=ed no signage plans and a condition of any approval should be that sign plans be submitted to the City for approval and be in conformance with the sign code and the comprehensive sign plan for ~he center. 5. Staff has the sane concern about front sidewalk trash receptacles for =his'center, due Co,he number of food establishments, and reques=s =ha= =he owner develop a suitable plan and submit it to the City for approval prior to implementation. 6. No outside rear trash enclosures are shown on the plan and these de=ails need to be submitted Co the City for review/approval. RECOMMENDATION SCarf recommends approval of =he request for a Conditional Usa Permit allow a convenience food establishment in a B-4 Zoning District, subjec= =he following conditions= 1. Sign~ge plan be submit=ed to City for approval. 2. Owner to develop plan for front sidewalk trash receptacles and submi= City for approval. 3. Details of outdoor trash storage be submitted to City for approval. Attachments: Sec=ion/Zoning Map City CanCer Site Plan Current Tenant Rcs=er Floor Plan Equipment List Correspondence 1985 Planner's Report-New Hope Mall Renovation Mr. Kirk McDonald, Management Assistant/Community Development Coordinator, explained thmt the petitioner is requesting m conditional use permit to allow a convenience food establishment in a B-4 Community Business Zoning District. He stated Mr. Johnson, the owner of the existing Subway Shop, desires to expand the fast food service operation by opening a Tmco Johns in the New Hope o City Center. He explained that the use would be eat- in/take-out for consumption on and off the premises and the dining area would provide seating for 34 customers and service would be from a counter. He stated the Planning Commission reviewed the case at its meeting of February 5, 1991, and recommended approval subject to: 1) signage plan be submitted to City for approval; 2) Owner to develop plan for front sidewalk trash receptacles and submit~_o C~ova_~~ Councilmember Enck requested that the Planning Commission make recommndattons as to whether or not the City should limit the number of food establishments allowed in the City. RESOLUTION 91-$3 Counctlmember Enck introduced the following resolution and Item 8.1 moved its adoption: "RESOLUTION APPROVIN~ PI. ANNXN~ CASE ' Il), 91-01, REQUEST FOR A CONDITIONAL USE PERMIT TO ALLOW COIIVENIENCE FOOD ESTABLISHREIET IN A B-4 COMMUNITY BUSINESS ZONING DISTRICT AT 4219 WINNETKA AVENUE NORTH". The motion for the adoption of the foregoing resolution was seconded by'Councilmember Wtlltamson, and upon vote being taken thereon; the following voted in favor thereof: L'Herault, Otten, Erickson, Enck, Williamson; and the following voted against the same: None; Absent: None; whereupon the resolution was declared duly passed and adooted, signed by the mayor which was attested to by the PLANNIN~ CASE Mayor Erickson introduced for discussion Item 8.2, 91-04 Planning Case 91-04, Request for Variances from Sign Item 8.2 Ordinance Requirements, 9400 3$th Avenue North (PID #18- 118-21 33 0102), Randy Rau/Holiday Station #505, Petitioner. Mr. Kirk McDonald explained that the petitioner is requesting two variances to the sign ordinance. One variance is to expand a non-conforming off-premise ground sign and the second variance is to exceed the sign area (square footage) requirement of the New Hope Code. He stated Mr. Rau recently installed three new signs (Express Teller, Car Wash~ Live Bait/Tackle) on the existing Holiday ground sign. He stated t~e request is to allow the current signs to remain in place. New Hope City Council Page 4 February 11, 1991 CITY OF NEW HOPE MEMORANDUM DATE: March 27, 1991 TO: Planning Commission FROM: Kirk McDonald Management Assistant/Community Development Coordinator SUBJECT: Miscellaneous Planning Issues 1. Contents of Reader Board Siqns I believe it was in January that a question was raised about products and services being advertised on reader board signs. The specific question was whether the content of reader board signs is regulated by the sign ordinance. There is no section of the ordinance that specifically regulates the content of reader board signs or states what can/cannot be stated on a reader board. I stated that if you were interested in having staff research what other communities are doing to regulate reader boards that I would pursue it. Several commissioners indicated an interest. Before any research was done I wanted to check with the City Attorney for his opinion on the application of the sign ordinance to various business identification signs throughout the City, which include advertisements for products or services provided at the business. It is the opinion of the Attorney that the definition of "business sign", which is a "sign which identifies a business...or is used in the identification or promotion of any...commodlty or service...offered or sold upon the premise where such sig~,~.s, located", clearly a1%ows a business sign to advertise the sa~e of products or services. The Attorney also sent a copy of a recent case from Minneapolis dealing with the constitutionality of sign code prohibitions. The case holds that the prohibition of signs based on their content is unconstitutional. It is the Attorney's recommendation to permit the practice of allowing businesses to indicate on their signs the nature of products or services sold on site as permissible signage. Based on this opinion, I will not be pursuing any research on the regulation of content on reader board signs. 2. Floodplain Ordinance The original State Model Ordinance that was reviewed by the Planner and the Codes & Standards Committee was a two-map format that creates two types of districts: a floodway district and a flood fringe district. The existing New Hope Ordinance is slightly more restrictive, as it provides regulations for only a singular floodplain district. The Planner recommended that the city pursue its existing regulations with a single map "general floodplain district". Staff has requested and received the single general floodplain district ordinance from the DNa and the new sample ordinance & has been forwarded to the Planner and Attorney for review/ comment. When they have completed a report on the single district ordinance, the Codes & Standards Committee should again convene to review this matter. 3. ShoDDinq Center Parking Requirements The City Council did not adopt the staff and Planning Commission recommendation to reduce the number of parking spaces for shopping centers that exceed 50,000 square feet in size, as they felt a developer could utilize the variance process if they desire less asphalt coverage than the code requires. 4. Holiday Sign Variance The City Council granted a variance to Mr. Rau to expand a non-conforming off-premise ground sign, but the variance to exceed the 200 square foot size regulation was not granted. Rau will be required to combine the signs with no spaces between them and not exceed the 200 square foot sign area. 5. Brix Semi Parking Mr. Brix appeared again at the March 25th Council meeting to state his displeasure with the New Hope ordinance which prohibits the parking of his semi-tractor at his residentially zoned property,%: the is still requesting that the code be amended, even though the Planning Consultant, Planning Commission, and City Council all agree that the ordinance should not be changed. He presented the Council with petitions he has been circulating around his neighborhood which call for the ordinance to be amended to allow the parking of commercial vehicles on residential property. 6. Bank sign The owner of the new Park National Bank that is under construction on Bass Lake Road has inquired about the possibility of installing a flashing time/temperature sign or electronic message board. These signs are prohibited by City Code, as no flashing signs or signs which create the illusion of movement are allowed. The bank may seek a variance in the future. I have attached background material if you are 7. Time Limit on Plannlnq Cases The issue of a time limit on planning cases was raised at the last Planning Commission meeting in regard to the K-Mart site/building plan review request. This matter has been tabled for the last several meetings due to the fact that the · City and K-Mart are working together to develop a plan that addresses both K-Mart and city concerns. Section 4.202(lk) of the City Code states that "the City Council shall act upon a Special Zoning Procedure application after it has received the report and recommendations from the Planning Commission and City staff or sixty days after the first regular Planning Commission meeting at which the request was considered, if no recommendation is received from the Planning Commission". I have discussed this matter with the City Attorney and he does not feel that this restriction is necessarily applicable in this situation because K-Mart and the City have mutually agreed to delay the request. It was the City that requested to have input into the plan so that access to neighboring properties could be addressed~ The delay may result in an improved parking/landscaping plan. The improvements could not be made until spring anyway. The staff recommends that the Commission take no action at this time. The recommended plan is currently under review by K-Mart officials and staff anticipates they will respond before the next meeting. CORFUCK & SONDR.'~LL A PARTN[RSHIP OF PRoIrE'e~81ONA/C~RPORATIONI~ 381 ! WEST BROADWAY ~,,a.~ M~..S~A 55422 TELEPHONE (E ! E) 5~r~'2~'a, ! CORRICK LAW OFFICEB, P.A. - WILLIAM J. CORRICK LAVONNE E. KEEKE STEVEN A. $ONDRALL, P.A. SHARON D. DERBY STEVEN A. BONDRALL MICHAEL R. LAFLEUR MART~,I P. MALF. CHA WILLIAM C. STRAIT March 13, 1991 Mr. Kirk McDonald Management Asst. City of New Hope 4401Xylon Avenue North New Hope, MN 55428 RE: New Hope Sign Ordinance Our File No. 99.10000 Dear Kirk: This letter is in response to the question you asked me concerning the application of the New Hope Sign Ordinance to various business identification, signs throughout the City which include advertisements for products or services provided at a business location, as well as the name or identification of the business. As I understand it, there is some question about the legality of that practice. I refer you to Section 3.422 (7) which defines a business sign. That definition, contained in our own zoning code, holds as follows: (7) Sign, Business. Any sign which identifies a business or group of businesses, either retail or wholesale, or any sign which identifies a professional ~r is used in the identification or promotion of any principal commodity or service, including entertainment, offered or sold upon the premise where such sign,is located. This definition clearly allows a business sign to advertise the sale of products or services. Therefore, our own code expands the definition of a business sign to permit the advertisement of products or services in addition to indicating the name of the business. Mr. Kirk McDonald March 13, 1991 Page 2 Also, I have enclosed a copy of a recent case from Minneapolis d~aling with the constitutionality of sign code prohibitions. The name of the case is Goward vs. City of Minneapolis, 456 N.W.2d 460 (Minn. App. 1990). Basically, this case holds that prohibition of signs based on their content is unconstitutional. In my opinion we are coming dangerously close to unconstitutional content based regulation if we take the position that the advertisement of services and products on site is prohibited. This is especially true in light of our own code definition which seems to permit this practice. Therefore, it would be my recommendation to permit the practice of allowing businesses to indicate on their signs the. nature of products or services sold on site as permissible signage. If you have any further questions regarding this matter, please do not hesitate to contact me. Very truly yours, Steven A. Sondrall slw2 Enclosures cc- Daniel J. Donahue, City Manager Doug Sandstad, City Bldg. Official Alan Brixius, C~,~Ptanner 460 Min~ 45~NORTH WESTERN REPORTER, 2d SERIES The record supports the jury's conclusion 4. Constltutiom that Travelers failed to make a proper nmil- Clayton L. GOWARi), ltespondent, t! For purpe: ina of the notice of tile right of first refus- al. The first notice sent to Hanson on June v.. analysis, regul~ 27, 1988, and to Gerzewski on June 28, CITY OF MINNEAPOLIS, Appellant. L~. is justified with regulated spec< 1988, did not comply with the requirements No. C0--89-2164. !.r: purposes unrel.· of Minn.Stat. § 500.24, subd. 7. In addi- ii' sion is neutral, tion, Travelers learned that Hanson was no Court of Appeals of Minnesota. ~. effect on some longer the proper party to receive the no- ~:'i-.~ not others. U.~ tices, and generated an internal memo indi- May 29, 1990. eating that all future notices should be sent 5. Constitutiom ~-, Exception to Gerz~ewski and the other HLF sharehold- Homeowner brought action for injunc- I~i rendered city la' ers. Travelers did send the correct form of ~. based, so that the notice on August 30, 1988, but mailed it tire relief after city threatened to prose- to Hanson instead of to Gerzewski and the cute him for erecting signs with political ~'~. Amendment scr messages on his residential property in vie- ,~.~.~: serve compellin~ others.that noticesHans°nshouldagainbe sentn°tifiedto GerzewskiTravelers lation of city lawn sign ordinance. The J~'~ ly drawn to ac and the others. It was not until September District Court, Hennepin County, Henry W. ~i" Coast. Amend. 1 20, 1988, that Gerzewski received notice in McCarr, J., joined enforcement of ordi- ~i 6. Constitutiom the proper form from Travelers. While nance against homeowner. City appealed. I~~ City's inter Travelers also coniemis that its actions con- The Court of Appeals, Short, J., held that compelling state First Amendment barred city from prohib- :.,~. content-based rc stituted a good faith effort to provide no- iting property owner from displaying signs :,~'., lawn sign etd tice, there is sufficient evidence to support Amend. the jury's finding that Travelers failed to that contained political messages on prop- ~.. make proper mailing of the notice of the erty zoned for residential uses, since ordi- 7. Constitutiom right of first refusal, nance did not constitute valid-time, place or City did nc manner restriction on speech, nance restrictin Affirmed. ordinance did n DECISION ernmentai inter, The trial court properly instructed the and city otherwi jury that intent of the parties may be con- 1. Constitutional Law ~=48(4) sic evidence of nance; city faih sidered in determining when property is Ordinary presumption of constitution- ti°hale behind e~ "acquired" or "held" under Minn.Stat. ality afforded legislative enactments does ,.~ was aesthetics~ § 500.24, subd. 6. The trial court's refusal not apply to laws restricting First Amend- i~..', to instruct the jury on the doctrine of waiv- meat rights. U.S.C.A. Coast. Amend. 1. 8. Constitutiom er was proper. Thus, the jury's verdict Zoning and ] that Travelers acquired the property on 2. Constitutional Law ~=,47 City's lawn August 1, 1983, was proper, is supported Court of Appeals' standard of review effect of bannir by the record, and was not influenced by an of case attacking constitutionality of ordi- criticizing treat~ error of law. ;'~,: ~'~ nance is determined not by broad powers of . did not leave There is support in the record for the city to enact zoning ordinances but by means of corn finding that Travelers failed to make a rights allegedly infringed by city's action, homeowner's si: handling of his proper mailing of the notice of right of 3. Constitutional Law ~=90(3) closely related first refusal. Ordinance restricting time, place or adequate altern: Affirmed. manner of speech will survive constitution- tion existed. U -- al scrutiny only if it is justified without 9. Constitutiom reference to content of regulated speech; it Municipal C' ,.k~.-_-:-.-.,.~ is narrowly tailored to serve significant Zoning and governmental interest; and it leaves open First Amen~ ample alternative channels for communica- hibiting properl tion of information. U.S.C.A. Const. Amend. 1. GOWARD v. CITY OF MINNEAPOI,IS Minn. 461 Cite aa 4S6 N.W.2d 460 (Mlnn. App. 1990) '~ 4. Constitutional l,aw ~=90(1) signs containing political messages on espondent, For purposes of First Amendment property zoned for residential use under ,; analysis, regulation is content-neutral if it lawn sign ordinance that permitted other is justified without reference to content of political speech in form of campaign signs; , Appellant. regulated speech; regulation that serves ordinance was not valid time, place or man- purposes unrelated to content of expres- ncr restriction on speech because it was sion is neutral, even if it has incidental content-based, city failed to show signifi- innesota, effect on some speakers or messages but cant governmental interest underlying ordi- not others. U.S.C.A. Const. Amend. 1. nance, and ordinance did not leave open ~ 5. Constitutional l,aw ~=90.3 adequate alternate channels of communica- ~ Exception for campaign-related signs tion. U.S.C.A. Const. Amend. 1. ~n for injunc- : rendered city lawn sign ordinance content- led to prose- based, so that it would survive First S~llabus by th~ Court with political ) Amendment scr, tiny only if necessary to The first amendment bars a city frmn operty in rio- ~it, l'vc cOral)oiling al;tlc interest and narrow- inance. The ly drawn to achieve that end. U.S.C.A. prohibiting a prol)erty owner from display- ty, Henry W. Const. Amend. 1. lng signs containing political messages on property zoned for residential use. ent of ordi- 6. Constilutional l,aw ~=90.3 ity appealed. ; City's interest in aesthetics was not J., held that compelling state interest that could justify Mark R. Anfinson, Charles J. Rethwisch, from prohib- content-based restrictions contained in city 'Minneapolis, for respondent. ~layingsigns lawn sign ordinance. U.S.C.A. Const. ges on prop- Amend. 1. Robert J. Alfton, Minneapolis City Atty., s, since ordi- '" Michael T. Norton, Assr; City Atty., Minne- 7. Constitutional Law ~:~90.3 ime, place or City did not establish basis for ordi- spoils, for appellant. hence restricting speech where city sign Considered and decided by SHORT, ~.~: ordinance did not identify particular gov- ernmental interest sought to be advanced P.J., and NORTON and MULALLY,* JJ. and city otherwise failed to present extrin- ) SiC t:vid¢llCe Of i,lcrc.~t m,derlying ordi- OPINION hence; city failed to demonstrate that ~'onstitution- tionale behind enactment of sign ordinance SHORT, Judge. irstmentSAmend-d°es ;" was aesthetics.. U..%~,.A~Const. Amend.,,~: ~ 1. The City of Minneapolis appeals from an ,mend. 1. 8. Constilnlmnal i,aw' ~='90.3 ' order of the trial court enjoining enforce- . ;~ Zoning and: Planning ¢~81 ment of part of its municipal code against City's lawn sign ordinance, which had respondent Clayton Goward. Respondent t of review effect of banning homeowner's lawn signs brought this action for injunctive relief lity of ordi- criticizing treatment of his zoning dispute, when the city threatened to prosecute him d powers of did not leave open adequate alternate for erecting signs on his residential proper- :es but by means of communication; messages on ty criticizing the city government. The i'] homeowner's signs which criticized city's signs violated city code provisions for areas ity's action. ~ handling of his zoning dispute were so zoned for residential use. We affirm. i~ closely related to their location that no ~', place or ~;~ adequate alternative means of communica- FACTS onstitution- tion existed. U.S.C.A. Const. Amend. 1. No facts are in dispute. Respondent has ed without ;.~i 9. Constitutional Law ~=90.3 owned his present home since 1959. He t speech; it '! Municipal Corporations ~=602 converted the house into a duplex in 1960. significant ! Zoning and Planning ~:'81 In 1963, the city rezoned the property to a eaves open '~' First Amendment barred city from pro- single family residential district. Respon- 462 Mi.n. 4S6 NORTII WESTERN REPORTER,2d SERiEs which couhl not be enlarged without city If you have had a cruel and unpleasant (A) N permission. Over the next 20 years, re- experience with tile Department of In- CATI spondent made numerous changes to the spections or with a hateful neighbor, (1) Are: home. Respondent obtained permits from please call or write to me: Clayton Go- There s tile city on five occasi,ms, i iowc. vcr, re- ward. plate : spondent made several changes without ob- The Minneapolis Department of Inspee- area--f taining permits. This work included an 8' tions and a hateful neighbor have forced the nan by 10' addition to the front of the second me to demolish a beautiful addition on a permi story; a hay window or; lhe east side of tile my home which has cost me $50,000 and lng lot second story; an enclosed room on the two trips to the hospital. The same or dwellin~ back side of the second story; and an open worse could happen to you. shall be °~eck on the front of the third story. Are you thinking of buying your own (2) Are~ In 1985, city inspectors cited respondent home? Don't do it! Your home is not For no for expanding tile nonconforming use with- your castle. Owning a home could be- identific out city permission. Respondent pled come a disaster to you. (9) squ~ guilty to these charges. The city also Two signs were attactwd to ti~e back of · . tile nar hrougl~t an action to COmlwl respondent to the house. One of them stated: may be remove the expansions. The parties even- lot two tually reached an agreement which called This was once my beautiful great room; for respondent to remove most of the room complete with carpeting & beaUtiful cur- i,: street-- at tile b:wk of the second story. The other tains. Is it nothi~g to you all ye who (3) Proj alteratioas were permitted to remain. The pass by? flat to parties reduced this agreement to an order A few days later, the city informed re- (4) Hei~ and judgment in July of 1987. No appeal spondent the signs violated the city code than on was taken, and both parties complied fully and had to be removed. Respondent appar- curb lc, with the terms of the judgment, ently was permitted to retain the signs for (B) "] In October of 1987, however, respondent an additional five days and was then re- SIGN erected several large signs in his yard and quired to remove them. Respondent com- (1) Are~ attached more to his house. Some of the menced this action seeking declaratory and more th signs facing the street contained the fol- injunctive relief from the city's enforce- . except t lowing messages: ment of the sign ordinance. The city con- signs--~ Watch my prediction: The Minneapolis cedes it would enforce the ordinance permitt~ Department of Inspections and tile City against respondent if he reinstalled the (12) sql Attorneys Office will quickly force ~ne to signs, than ei~ remove these signs. Why? I. The truth Respondent stated in deposition that he lot. in my signs embarrasses them. 2. My did not attempt to use any other means to (2) Proj signs could muster sympathy for my communicate his grievance ~o the lmblic, yond t~ cause. Specifically, he did not write to the newspa- way. Attention: Minneapolis De~.t~. ~f Inspec- pers; he did not protest before city hall or (3) Hei~ tions; City Attorneys Offi~ ~Iy dear city council; and he did not buy advertising than on, neighbor: You have made my life aliv- space in any newspaper. However, a news- the Curt lng hell for the last two years! paper article about respondent's problems (C) SI Drive up the back alley & see what was published in the Minneapolis Star Trib- ING man's inhumanity to man has done to my une on October 16, 1987. The article in- (1) Are~ home. eluded a photo of respondent with some of parking T.o the tree house builder in St. Louis his signs. '~ ed to ot P~/rk: Let's join forces against those who The trial court declared the following and to ~- are trying to destroy us. Minneapolis ordinance unconstitutional: feet ca, I have been ordered to demolish part of 538.180. Signs. In R1 District the fol- designa my home or go to jail! Is this democracy lowing nonflashing, noniiluminated signs tity of s and the United States Constitution at are permitted under the conditions speci- maximu work? fled: shall be GOWARD v. CITY OF MINNEAPOLIS Minn. 463 Cite a-4S6 NLW.2d t unpleasant (A) NAMEPLATE AND IDENTIFI- lot two (2) such signs--one facing each merit of In- CATION SIGNS street--shall be permitted. il neighbor, (1) Area and content--Residential. (2) Projection. No sign shall project be- Clayton Go- There shall be not more than one name- yond the property line into the public plate--not exceeding one square foot in way. t of Inspec- area--for eact~ dwelling unit, indicating (3) Height. No sign shall project higher have forced the name and address of the occupant or than seven (7) feet above curb level. addition on a permitted occupation. On a corner zoo- Minneapolis, Minn., Code of Ordinances $50,000 and ing lot two (2) such nameplates for each § 538.180(A)-(C) (1987). 'be same or ,Iwclli.g u.it -.nc f.'.'.ing cacb utrcet~ The city code co~lai.s other provisions shall be pern~ittctl, for political campaign signs: ,~ your own (2) Area and content--Nonresidential. 522.300. Signs. (a) Permanently af- ~ome is not For nonresidential buildings a single fixed. Ali signs shall be permanently ~e couht be- identification sig,--not exceeding nine affixed to the gronnd or a str,ctnre. (9) square feet in arca~imlicating only Portable signs are not authorized. the back of the name and address of the building (b) Political campaign signs. Political d: may be displayed. On a corner zoning campaign signs are authorized in ali dis- great room;' lot two (2) such sigus--one facing each triers. Subsection {b) shall not be con- ,autiful cur- street~shall be permitted, strued as authorizing any such signs on all ye who (3) Projection. Ali signs shall be fixed public property or on private property fiat to tire surface of the building, where otherwise prohibited. fformed re- (4) Height. No sign shall project higher Minneapolis, Minn., Code of. Ordinances e city code than one story, or fifteen (15) feet above § 522.800 (1983). ~dent appar- curb level, whichever is lower. 109.60. Political campaign signs. Not- ~e signs for (B) "FOR SALE". AND "TO RENT" withstanding any other provision of this as then re- SIGNS Code to the contrary, no license or permit ,ndent corn- (1) Area and number. There shall be not shall be required for the placing of tem- ~ratory and more than one such sign per zoning lot, porary political campaign signs not more 's enforce- except that on a cormu' zt,ting lot two (2) than thirty-two (:~2) squaru feel in urea ~e city con- signs--one facing each street--shall be where the placi~g of stroh ~igns is autbo- ordinance permitted. No sign shall exceed twelve rized by the zoning ordinance. Lawn stalled the (12) square feet i~r?~.re~ nor be closer signs shall be removed six (6) days after than eight (8} feet to any other zoning a general election. ,~n that he lot. Minneapolis, Minn., Ct,de of Ordinances : means to . (2) Projection. No sign shall project be- § 109.60 (1981). l~espondcn~'s signs do not the public, yond the property line into the public fall into any of the permitted categories. he newapa- way. There is no dispute that the ordinance pro- ~ity hall or ... (3) Height. No sign shall project higher hibita respondent from posting his signs. ~dvertising 'i: " than one story or fifteen (15) feet above er, a news- .'~!i the curb level whichever is lower. ISSUE ~ problems ~'. , Star Trib- : (C) SIGNS ACCESSORY TO PARK- Does enforcement of Minneapolis, Minn., article in- ING AREAS Code of Ordinances § 538.180 (1987) rio- th some of (1) Area and number. Signs designating late respondent's first amendment right parking area entrances or exits are limit- of free speech? ed to one sign for each exit or entrance, following and to a nmximum size of two (2) square ANAI~YSIS utionah feet each. One sign per parking area [11 On appeal from sumcaaryjudgment, ~ct the fol- designsting the conditions of use or iden- this court's role is to determine whether 464 Minn. .156 N¢)RTil WESTERN REPORTER, 2d SERIES Mittncs,t, tlospihUs ~' ('lit~ics, 42(; est; and (3) it Icaw~s open ample alterna- example, t N.W.2d 425, ,127 (Minn.1988). The nonmov- tire channels for commnnieation of the in- and "for r lng party bas the burden of producing evi- formation. Ward v. Rock ,Igai~st Rac- eel signs r dence as to all material facts for which it ism, U.S. , ~, 109 S.Ct. 2746, determine bears the burden of proof at trial. Celotex 2753, 105 L. Ed.2d 6(;1 (1989).~ The time, the otherw Corp. v. Catrett, 477 U.S. 317, 322-23, 106 place or manner analysis has been routine- of the do~ S.Ct. 2548, 2552-53, 91 L. Ed~2d 265 (1986); ly applied in cases involving zoning laws regulation~ Carlisle r. City qf Minneapolis, 437 restricting speech on privately-owned prop- In City N.W.2d 712, 715 (Minn. App. 1989). The or- erty. See, e.g., City oJ'Re~to~ v. Playtime payers for dinary presumption of constitutionality al- Theatres, Inc., 475 U.S. 41, 4~47, 106 S.Ct. forded legislative enactments does not ap- 925, 928, 89 L. Ed.2d 29 (1986) (adult films 2118, 80 L Court said ~y to laws restricting first amendment shown in privately-owned theatres); Me- rights. Joh~tson v. State Civil Serrice De- tromedia, Inc. v. City of San Diego, 453 An asse partment, 280 Minn. 61, 66, 157 N.W.2d U.S. 490, 51~16, 101 S.Ct. 2882, 289~97, "Abortio has the" 747, 751 (1968). The burden of proving a 69 L.Ed.2d 800 (1981) (plurality opinion) ? need for such a law is on the government. (billboards confining commercial speech hol Kills, Id; sec also Meyer r. Gra~tt, .186 U.S. 414, located on private property); Schad, 452 tutional 426, 108 S.Ct. 1886, 1894, 100 L. Ed.2d 425 U.S. at 74-76, 101 S.Ct. at 2185-2186 (live that is j nude dancing); State v. Hopfi 323 N.W.2d cent--Cji (1988). 746, 753 (Minn. 1982) (advertising devices ties for 121 Thc city seeks deference to its near churches, schools, an(i u('enie areas), not thes~ broad powers to emtct zoning ordinances. We thus analyze each requirement in turn. create a ~ The city's power to zone, ho~vever, is limit- ally forb: ed by express constitutional and statutory 1. Content Neutrality. 466 U.S. at provisions. Our standard of review is de- [41 In determining whether a govern- omitted). termined not by the power exercised by the ment regulation is content-neutral, the certain top city, but by the rights allegedly infringed government's purpose is the controlling other topics by the city's action. Schad v. Borough of consideration. Rock Against Racism, -- agenda for Mount Ephraim, 452 U.S. 61, 88, 101 S.Ct. U.S. at ,109 S.Ct. at 2754. The regula- ed Edison 2176, 2182, 68 L.Ed.2d 671 (1981). Respon- tion is content-neutral if it is justified with- sion, 447 U dent's signs vent his criticism of city ac- out reference to the content of the regular- 2333-34, 65 ties. Such political speech is at the core of ed speech. Id. A regulation that serves pertinent c first amendment protection, and the city purposes unrelated to the content of ex- 92, 95, 92 S must "allow the widest room for discus- pression is neutral, even if it has an inci- (1972); see sion, the narrowest range for its restri¢- dental effect on some speakers, or roes- tinction in tion." See Thomas v. Collins, 323 U.S. sages but not others. Id. Here, the gev- Renton, I02 516, 530, 65 S.Ct. 315, 322, 89 L. Ed. 430 ernmenmi objective the city asserts is to ("[Slubject (1945). preserve the appearance of residential process of s [31 An ordinance restricting the time, neighborhoods by reducing the visual clut- for truth~t ter caused by signs. This objective is un- the marketF place or maturer of speech willy,ye eon- stitutional scrutiny only if fl) it ~ justified related to the content of the signs. ' ted)). without reference to the content of the The ordinance contains exceptions, how. Regulatiot regulated speech; (2) it is narrowly ~ilored ever, which permit ceftin signs based sol~ subjects of s ~ se~e a significant governmen~l inter- ly on the speech contained on them. For a viewpoin~ Barnes, Reg !. The test articulated In City Cotmcil o/ Los dental restriction on alleged Fh'sl Amendment to Aflfect ~ Angel~ ~. T~xp~yers/or Vincent, 466 U.S. 789, freedoms is no greater than is essential to the 104 ~.Ct. 2118, 80 L.Ed.2d 772 (1984) is some- furtherance of that interest. 53-54 (1985) what different: 466 U.S. at 80~, 104 S.Ct. at 2128 (quoting Unit. First amen IA] govermnent regulation is sufficiently justi- ed Stat~ ~. O'BHen, 391 U.S. 367, 377, 88 S.Ct. 34 Vand. L.h fled if it is within the constitutional power of 1673, 1679, 20 L.Ed.2d 672 (1968)). These two Rest~ctions the Government; if it furthers an important tests appear to have become interchangeable. or substantial governmental interest; if the See Day, ~e HybHdizmion o[ the Content-Neu. tent: The f governmental interest is unrelated to the sup- rrm Stander& for the Free Speech Clang 19 t~K R~gt~6t~ pression of free expression; and if the lnct- Ariz. St.L.J. 195, 215 (1987). 11 (1978). lES GOWARD v. CITY OF MINNEAPOIJS Minn. 465 Cite ae4~6 N.W.2d 4~0 (Minn. App. 1990) ; open ample alterna, example, the ordinance permits "for sale" speech in some forums is most often erit- ,munication of the in- and "for rent" signs, and temporary politi- leal of the status quo. An impartial ban Rock Against Rat. ealsigns relating to a campaign. We must thus has the effect of suppressing view- , 109 S.Ct. 2746, determine whether these exceptions take points critical of the government. 1 (1989).t The time, the otherwise content-neutral ordinance out [5] By permitting campaign-related 'sis has been routirl~ of the domain of time, place or manner signs while harming signs on such political ~volving zoning laws regulations, issues as ahortion, taxes, and gun control, wivately-owned prol> ~Renton v. Playtime In City Council o.f Los Angeles ~. Tax- the city ordinance falls into the dilemma ;. 41, 46-,17, 106 S.Ct. payersJbr Vincent, .166 U.S. 789, 104 S.Ct. noted in Taxpayers for Vincent. The city 9 (198(0 (adult films 2118, 80 i,.Ed.2d 772 (1984), the Supreme is providing a fin.urn Lo people whose choice reed theatres); Me- Court said: of topic it finds acceptal,le, but is denying ' of San Diego, 453 An assertion that "Jesus Saves," that that forum to }ess favored or less flattering $.Ct. 2882, 2896-97, "Ahorlion is Murder," that every woman topics, such as respomtent's criticism of ~ (plurality opinion) has the "llight to Choose," or that"Alco- city action. commercial speech hol Kills," may have a claim to a consti- The plurality in Metromedia, Inc. said: perty); Schad, 452 tutional exemption from the ordinance Although the city may distinguish be- . at 2185-2186 (live that is just as strong as "Roland Vin- tween the relative value of different eat- Hopf, 323 N.W.2d cent--City Council." To create an excep- egories of commercial speech, the city advertising devices tion for appellees' political speech and does not have the same range of choice and scenic areas), not these other types of speech might in the area of noncommercial speech to ~quirement in turn. create a risk of engaging in constitution- evaluate the strength of, or distinguish ally forbidden content discrimination, between, various communicative inter- ~' 466 U.S. at 816, 104 S.Ct. at 2134 (citation ests. vhether a govern- omitted). By placing a higher value on 453 U.S. at 514, 101 S.Ct. at 2896. The ntent-neutral, the certain topics of political speech than on plurality concluded that: is the controlling other topics, the city impermissibly sets the With respect to noncommercial speech, ~inst Racism, ~ agenda for lmblie debate. See Consolidat- the city may not choose the appropriate 2754. The regula- ed Edison ('o. v. Public Service Commis- subjects for public discourse: "To allow it is justified with- sion, 447 II.S. 530, 5117-38, 100 S.Ct. 2326, a government the choice of permissible. mt of the regulat- 2333-3.1, t15 l~.l.,al.2d 319 (1980); Police De- subjects for Imblie debate wouhl be to ;at/on that serves partment of Chicago v. Mosley, 408 U.S. allow that government control over the ~e content of ex- 92, 95, 92 S.Ct. 2286, 2289, 33 L.Ed.2d 212 search for political truth." if it has an inci- (1972); see a~.. ~ote, The Content Dis- Id. at 515, 101 S.Ct. at 2896 (citation omit- peekers or mca- tinction itt b'r~;e Speech Analysis A. fter ted). Such subject-based restrictions make Here, the gev- Renton, 102 tlarv, l,Rev. 1904, 1913 (1989) the ordinance content-based. Id. at 516-17, 'ity asserts is to ("[Slubject matter restrictions distort the 101 S. Ct. at 2897-98. We hold that the ~ of residential process of self-government and the search exception for campaign-related signs ren- ,~ the visual clut- for truth--the norm ultimately underlying ders the ordinance content-based. Further, ; objective is un- the marketplace of ideas." (footnote omit- the exception in the city's ordinance which the signs. .. ted)), allows "for sale" and "for rent" signs ira- exceptions, how- Regulations that distinguish between permissibly inverts first amendment cai- signs based sole- subjects of speech on their face often have ues. The city may not treat commercial Ion them. For a viewpoint discriminatory effect. See speech more favorably than political I First Amendment Barnes, Regulations of Speech Intended speech. See id. at 513, 101 S.Ct. at 2895. is essential Io the to A.(fect Beha.vior, 63 Den. U.L. Rev. 37, Other jurisdictions which have con- 53-5.1 11985); Schauer, Categories and the sidered similar ordinances have uniformly 'i28 (quoting Unit. First Amendment: A Play in Three Acts, held a city may not select a particular type 3~7, 377, 88 S.Ct. 34 Vand. L.Rev. 265, 284-85 (1981); Stone, of speech for differential'treatment. See, 968)). These two ~ imerchangeable. I Restrictions qfSpeech Because of Its Con- e.g., National Advertising Co. v. City of th~ Contc,~t-tVcu. tt'~tt: 77,: I'cculiar (:~sv o. f Subject-Mat- Oran!/v, 861 I,'.2d '.'-,11;, 2,111 (gth Cir. 1988) ~pt~ch Claus¢ 19 ] ter Restrictions, 46 U.Chi. L. Rev. 81, 109- (city cannot analyze content of outdoor i 11 (1978). This is true because political noncommercial messages to determine 466 Minn. 456 N()RTII WESTERN REPORTER, 2d SERIES wlmthcr and where they are allowed); aware of any case that bolds a city's inter- tel inte~ Baldwin t,. Redwood City, 540 F.2d 1360, est ;in aesthetics is compelling. We hold city ha~ 1372-73 (9th Cir. 1976) (ordinances which aesthetic interest alone cannot be a compel- sic evid exchtde political sign.q from residential dis- ling state interest. The ordinance also fails ordinan tricts behl unconstitution:tl), cert. denied, the remaining requirements of the time, basis f¢ 431 U.S. 913, 97 S.Ct. 2173, 53 L. Ed.2d 223 place and manner test. Exce[ (1977); National Adt,ertising Co. t,. Town cases h 703 F.Sttpp. 228, 237 (E.D.N.Y. constitu of Babylo~,1989) (an ordinance does not pass constitu- 2. Narrowly tailored to meet significant tional muster if it favors any type of com- governmental interest, est in' Quadre., mere(al speech over noncommercial [7] Aesthetic concerns are a significant Regula~ 'speech), affd in part, 900 F.2d 551 (2d governmental interest that may justify State I~ Cir.1990); Ross v. Gosh(, 35l F.Supp. 949, banning billboards and signs. See Taxpay- tiny, 37 954 (D.Haw.1972) (ordinance prohibiting po- ers for Vincent, 466 U.S. at 806-07, 104 The city lit(cai signs held unconstitutional); City of S.Ct. at 2129-30; Hopf 323 N.W.2d at 754; addition Lakeu,ood v. Col. fax Unlimited Associa- City of Cottage Grove v. Ott, 395 N.W.2d terest n lion, 4;3.1 l'.2d 52, 62 (t,oh).l,)81) (ordinance Ill, 113-14 (Minn. Al)p.1981;). Tim city or- also hat limiting permissible messages borne by po- dinanee prohibiting respondent's signs, the for' litieal signs is unconstitutional); New Jer- while arguably serving that interest,: eon- owned a sey v. Mille~; 83 N.J. 402, 413-14, 416 A.2d rains no statement of a significant govern- lie foru~ 821, 827 (19811) (ordinance which limited mental interest, nor bas the city offered 2133. ! residential property owner's eommuniea- extrinsic evidence of such an interest. In using hi tion constitutes an absolute ban on political essence, the city seeks judicial notice of an city has speech); Peltz t,. City of South Euclid, 11 unstated and unexplained legislative put- eontrolli Ohio St.2d 128, 133, 22R N.I,.2d 320, 323 pose for an ordin:tncc that restricts speech, at 811, (1967) (ordinance prohibiting political signs See National Advertising Co. v. ~bwn of Court h~ impermissibly bars a property owner from Babylon, 900 F.2d 551, 556 (2d Cir. 1990). ests ato expressing his opinion on his own proper- It is true that the Minneapolis zoning code interest ty); City of Euclid v. Mabel, 19 Ohio as a whole was adopted, in gene. ral, for the lit(cai st App.3d 235, 238, 484 N.E.2d 249, 253 (1984) purpose of promoting and protecting the speaker. (ordinance which regulates on the basis of public health, safety, morals, comfort, subject matter is invalid on its face), cert. aesthetics, economic Viability and general 3. Al denied, 474 U.S. 826, 106 S.Ct. 85, 88 viability of the city. See Minneapolis, L.Ed.2d 70 (1985); Fan v. ?'ravel In. fo~w~a- Minn., Code of Ordinances, § 522.20 (1986). [8] T lion Council of Oregon,, 52 Or. App. 399, This does not demonstrate that tile ratio- leave op 415, 628 P.2d 1217, 1227 (1981) (ordinance nale behind the enactment of tile sign ordi- commun which contains tithe limit:ttions on political hence was aestiwtics. ,qce Natiomll Ad- argues ~ signs impermissibly restricts the scope of vertising Co., 900 F.2d at 555. We cannot message political speech), accept the city attorney's statement that the edit~ r,.; ~ billing. 161 Appellant concedes [~,~ %rdinance aesthetics was tile city's motivating pur- cannot survive the strict scrutiny applied to pose where tile record was silent on that whether content-based restrictions on political point. See Dills v. City of Marietta, 674 whether speech. Content-based restrictions on F.2d 1377, 1381 (llth Cir. 1982), cert. de- quate. ' speech survive first amendment scrutiny hied, 461 U.S. 905, 103 S.Ct. 1873, 76 812, 104 has stat, only if they are necessary to serve a eom- L.Ed.2d 806 (1983). Tile onus of proving a ,. That [ pelling state interest and are narrowly need for a law burdening speech falls on dra~vn to achieve that end. Widener v. the city. Grant, 486 U.S. at 426, 108 S.Ct. burde~ Vincent, 454 U.S. 263, 270, 102 S.Ct. 269, at 1894. Because the city sign ordinance does Amen¢ 274, 70 l~.Ed.2d 440 (1981). We are not does not identify the particular governmen- Amen~ 2. In a counterclaim, the city sought injunctive city's true concern in enforcing the ordinance only t~ relief and attorney fees from respondent for was its disapproval of the messages contained select "collaterally attacking" the prior settlement by on the signs. the use of signs. Thc cotantcrclaim suggests the effect( GOWARD v. CITY OF MINNEAPOI,IS Minn. 467 Cite a.~456 N.W.2d 460 (Mlnn. App. 19901 city's inter- iai interests sought to be advanced and the Grant, 486 U.S. at -t24, 108 S.Ct. at 1893 ,~. We hold city bas otherwise failed to present extrin- (citations omitted). ~e a compel- sic evidence of the interests underlying the Several cases have held that notwith- ce also fails ordinance, the city has not established a standing the regulation, ample alternative f the time, 5 basis for an ordinance restricting speech, channels of communication remained open. · Except for Taxpayers for Vincent, the See Rock Against Racism, -- Il.S. at , 109 S.Ct. at 2760; Frisby v. Schultz, cases holding that aesthetic interests can significant constitute a significant governmental inter- 487 U.S. 474, 483-84, 108 S.Ct. 2495, 2501- est inw~lvcd "semi-protected" speech. 02, 101 L.Ed.2d 420 111.1881; Playtime The- Qu:tdrcs, ('o,tcnt-Ncutral t'ublic z;brum atres, Inc., 475 [I.S. at 53-54, 106 S.Ct. at significant Rcgulatio~s: The Rise of the Aesthetic 931-932; Taxpaye,rs for Vincent, 466 U.S. ay justify State Interest, The Fall of Judicial Scru- at 812, 104 S.Ct. at 2182; Hopf, 323 N.W.2d se Taxpay. tiuy, 37 Hastings l,.J. 439, 443-47 119861. at 754. These eases involved relatively mi- 06-07, 104 The city in T~.rtmycrs./i,' ['im~t;nt had the nor interference witti tile right to speak. .2d at 754; additional interest of traffic safety, an in- Rock Against Racism, for example, in- J5 N.W.2d terest not asserted here. The city there volved a city requirement that a city-sup- he city or- ~'s signs, '~ the forum because it was government- certs given in a public band shell. The rest, a con- Court held the law had "no effect on the owned and not normally available as a pub- ~t govern- lie forum. 466 U.S. at 814, 104 S.Ct. at quantity or content of that expression." -- U.S. at , 109 S.Ct. at 2760. Sim- crest.Y offeredin 2133. Here respondent has an interest in ilarly, in Frisby, the tit3; enacted an ordi- ' using his own property as he sees fit. The lice of an nonce banning picketing in front of resi- ltive pur- : city has a correspondingly lesser interest in denees. As the Court e'onstrued it, the :s speech, controlling speech on private property. Id. ordinance allowed general marching at 811, 104 S.Ct. at 2132. The Supreme through the neighborhoods, or around the Town of Court has never hcht that aesthetic inter. 2ir.19901. ests alone tau coustitute a governmental block. 487 U.S. at .1~3-84, 1118 IS.Ct. at 250I--02. As narrowed, the ordinance ling code interest significant enougl~ to override po- therefore left open ample alternatives. In I, for the 'ting the litical speech on prola:rty ownetl by the Playtime T}tcalres, lite., tile city had comfort, speaker. We hohl it cannot, banned adult movie theaters from locating general within 1,000 feet of residential amt other mapolis, 8. Alternati've channels, zones. The Court held ample alternatives ~ {1986). [81 The governmen~M~ i~gulation must remained open because 520 acres of aeees- leave open ample alternative channels for sible real estate remained available. 475 [e ratio- gn ordi- ,., communicating the information. The city U.S. at 53-54, 106 S.Ct. at 931-932. In ~al Ad- argues respondent could communicate his Taxpayers for Vincent, the city had cannot message through such means as letters to banned posting signs on public property. nt that ~i the editor, picketing at city hall, or hand- The Court noted that ample alternative lg put- .!~ billing. However, the issue is not merely modes of communication remained, and >n that '- whether alternative forums exist, but that no findings indicated that the posting ts, 674 '; whether the alternative forums are ada- of political signs on public property is "a 'rt. de- : quote. Taxpayers./hr Vincent, 466 U.S. at uniquely valuable or important mode of 73, 76 812, 104 S.Ct. at 2132. The Supreme Court communication, or that appellees' ability to ~vinga has stated: communicate effectively is threatened." ills on That fa regulation] leaves open "more 466 U.S. at 812, 104 S.Ct. at 2132. Finally ~ S.Ct. hurdensonie" avenues or' communication, in Hopf, the Minnesota Supreme Court held inance does not relieve its burden on First that an ordinance banning billboards within nmen- Amendment expression. The First 100 feet of churches and schools left open Amendment prntccts appellees' right not ample alternative channels of commtinica- {inance only trained select what they believe to be the most These cases all .bare a common thread: effective means for so doing, the regulations did not impair the ability of 468 Minn. 456 NORTtl WESTERN REPORTER.,2d SERIES tile speaker to communicate the ~nessage to channels of communication. See Schad, Court, the desired audience. In contrast, a regu- 452'U:8. at 76, 101 S.Ct. at 2186 (total hah J., aw lation that leaves open no adequate alterna- on live entertainment does not leave adc- wage Court rive channels must fail. See Grant, 486 quate alternative channels). We have pre- U.S. at 424, 108 S.Ct. at 1893; Metrome- viously held that a total ban on commercial mutua dia, Inc., 453 U.S. at 516, 525, 101 S.Ct. at billboards is permissible. See Ott, 395 ployer tion" 2897, 2901 (plurality and concurring opin- N.W.2d at 114. That decision was prem- ions); Heffron v. International Society ised on the fact that the ordinance in ques- emplo: for Krishna Consciousness, 452 U.S. 640, tion did not reach noncommercial speech. A: 654-55, 101 S.Ct. 2559. 2567-68, 69 L.Ed.2d Id. Noncommercial speech, the type at reman 298 (1981); Schad, 452 U.S. at 75-77, 101 issue in the present case, is at the zenith of S.Ct. at 2186-2187; Linmark Associates, first amendment protection. Grant, 486 Inc. v. Township of IVillingboro, 431 U.S. U.S. at 425, 108 S.Ct. at 1893-94. There- 1. La~ 85, 93, 97 S.Ct. 1614, 1618, 52 L.Ed.2d 155 fore, we hold that the near-total ban on M (1977). noncommercial lawn signs in residential emplo.~ These cases expressly reject the view zones violates the first amendment. Our ignatk that a law that limits expression can be hohting does not prewmt the city frmn eh- tling e justified merely' on the ground that the acting reasonable ordinances limiting sign penalt. expression can be exercised elsewhere, dimensions, establishing setback require- ['or Schad, 452 U.S. at 76-77, 101 S.Ct. at ments, and so forth. 2181;-2187. The cases recognize that signs are a cheap, effective and autonomous DECISION 2. Lal~ method of communication. See Metrome- The Minneapolis ordinance is not a valid dia, Inc., 453 U.S. at 516, 101 S.Ct. at 2897; time, place, or manner restriction on speech of suit see also Hop. f, 323 N.W.2d at 754 ("it]he because (a) it is content-based; (b) the city where billboard is a unique advertising device has failed to show a significant governmen- wages which cannot easily be replaced by newspa- tal interest underlying the ordinance; and ~ comm~ pers, television, leaflets and the like."). In (c) the ordinance does not leave open ade- Linmark Associates, Inc., the Supreme quate alternative channels.. Because we 3. Lab Court held that a lawn sign advertising the find the ordinance violates respondent's "£ fact that the house was for sale was a first amendment right of free speech, we in acti unique form of expression, for which no affirm the trial court's ruling that the ordi- all ou' adequate alternative existed. 431 U.S. at nance is unconstitutional. Curred 93, 97 S.Ct. at 1618. Tile Court noted that Affirmed. not im such signs are most likely to reach the s audience to which the message is directed. ~k~Wt?~ del We think the messages contained on re- spondent's signs are so cl~ly*!;onnected to their Iocahon that no adequate alternative Patrick G. O'KRONGLIS, Appellant, termin means of communication exists. The signs v. tionshi' invite passers by to look at the house, and to consider whether the city treated respon- Ardell BROBERG, individually and the wa recove dent in a humane fashion. The same mes- d/b/a Kingsway Homes, Inc., sage communicated any place other than Respondent. for un § 181.~ the house would carry little impact. No. C3-89-1932. [91 The city's lawn sign ordinance Court of Appeals of Minnesota. amounts to a total ban on a form of politi- Lesli cai expression. Despite the narrow excep- June 1990. Nm-the tion for campaign-related signs, the first lant. amendment does not permit such a law Employer challenged conciliation court Ard~ because it fails to leave open adequate judgment for unpaid wages. The District 4401 Xylon Avenue North New Hope, Minnesota 55428 Phone: 533-1521 March 18, 1991 Mr. J. J. Choromanski 8110 60th Avenue North New Hope, MN 55428 Subject: TIME/TEMPERATURE SIGN OR ELECTRONIC MESSAGE BOARD FOR BANK Dear Mr. Choromanski: As per our telephone conversation, I am enclosing copies of pertinent excerpts from the New Hope Sign Ordinance regarding flashing or moving signs. Section 3.446 states that "No flashing signs, rotating or moving signs, animated signs, signs with moving lights, or creating the illusion of movement' shall be permitted". In discussing this with the New Hope City Attorney and the City's Planning Consultant, both feel that f-lashing time/temperature signs or electronic message boards are clearly prohibited by the code. I am also enclosing the minutes from a planning case in 1980 when Home Savings at the Winnetka Shopping Center requested a variance for a time/temperature device. The Planning Commission and City Council both denied the request. In order for a variance to be granted from the Sign Ordinance, certain conditions must be met. These conditions are listed under Section 3.48. I hope this informat~ will provide you with some background on your request. After reviewing the ordinance and the minutes, if you want to proceed with a variance application, please contact me. Sincerely, Kirk McDonald . Management Assistant/Community Development Coordinator K /lb Enclosure: Ordinance and Minutes cc: Dan Donahue, City Manager Doug Standstad, Building Official Park National Bank File Family Styled City '~~ For Family Living (3) Signf Address. A' sign communicating street address only, whether written or in numerical form. Sign~ Area. That area within the marginal lines created by the sign surface which ~eers the advertisement or, in the case of messages, figures or symbols attached directly to the part of a building, which is included in the smallest geometric figure which can be made to circumscribe the message, figure or symbol displayed thereon. (5) S~gnf Banners and Pennants. Attention getting devices which resemble flags and are of a paper, cloth or plastic or plastic- like consistency. (6) Sign~ Billboard. Any advertising sign having an area of more than three hundred square feet. (7) Signr Susxness. Any sign which identifies a business or group of businesses, either retail or wholesale, or any sign which identifies a professional or is used in the identification or promotion of any principal commodity or service, including entertainment, offered or sold u~ofl the premise where such sign is located. (8) Si~nr Canopy and Marquee. Any message or identification which is affixed to a canopy or marquee. (9) Signr Flashing. Any illuminated sign on which the artificial light is not maintained stationary and/or constant in intensity and color at all time when such sign is in use. (10) Signr Ground. Any sign placed upon, or supported by the ground independently of the main building or structure on the property. Signs on accessory structures shall be considered ground signs. Si~n,.Identification. The principal sign identifying the business conducted on the premises. In Residential Districts, the sign identifying a resident, school, church, or other non- business uae. Si~n~ Illuminated. Any sign which has characters, letters, figures, design or outline illuminated by electric lights or luminous tU~91~9~.s part of the sign proper. (Ord. 76-17) Sign, LO~O. Any letter, character, symbol, or abbreviation used to represent an entire word or group of words denoting the name or purpose of any business. For purposes of this Sign Code, a trademark may qualify as a symbol, but only if any brand name or other word used therein is a single letter, character or an abbreviation. (Ord. 76-17, 80-5) (14) Si~nF Motion. Any sign which revolves, rotates, has any moving parts, or gives the illusion of motion. 3-37 07268& 3.442, 3.443, ~.444, 3.445, 3.446, 3.447, 3.448 3.442 Maintenance_of_Signs. All signs, including electric wiring, supporting structures, guy wires or chains, shall he properly maintained and kept in a safe condition. The owner of any sign shall be required to have properly painted, at least once every three years, all parts and supports o[ the said sign, unless the same are galvanized or otherwise treated to prevent co£rosion. 3.443 Building and Electrical Codes Applicable. All signs shall be wired to conform to Subsection 3.221 (2). Sign structures shall be designed to provide a forty psf snow load and a forty psf wind pressure. (Code 072684) 3.444 Window Signs. (1) Maximum Window Area. In no event shall the size of the interior window signage exceed the lesser of twenty percent of the entire window area of the one side of the building upon which said signs shall be displayed or one hundred twenty-five square feet. (2) Illuminated Signs. An interior window sign may be illuminated provided it complies with the following conditions= a. Use. The sign is restricted to business identification on-~fy, as defined in Section 3.422 (ll). This may include the business name or logo exclusive to the property. b. Flashing Signs. Flashing signs are prohibited. c. Total Area. The encompassed area of the illuminated sign shall not exceed the maximum window sign area as defined in paragraph 1. above. (3) Temporary Advertising Signs. Advertising signs that are clearly intended for temporary display only, may be affixed to a window provided that the sign area conforms with the formula allowance outlined in this subsection. The allowable sign area for a window advertising sign is in addition to the total permitted wall sign area as regulated in Section 3.465 (1). Window signs other than for advertising, such as business identification, or any sign which is permanently affixed to a window, shall constitute a dual purpose sign and thus be regulated under the above and the provisions of Section 3.465 (1).. (Code 072684, Ord.' 87-9} 3.445 Illuminated Signa.~'~i~hs shall be shaded wherever necessary tO avoid casting bright light upon property located in any residential district or upon any public str.~et or park. Any illuminated sign located on a lot adjacent to or across the street from any single family residential district, which sign is visible from such single familF residential district, shall not be illuminated at any time between the hours of ll=00 p.m. and 7=00 a.m., when the premises is not open for business. Flaehi~ or #ovin~ Sl~e. No flashing signs, rotating or moving 3.4~6 lignl, maim&ted lfgfll, Signs with moving lights, or creating the lllu~lo~ of mov~t shall be permitted. ~.447 Projecting Signs. NO projecting sign shall be permitted. ~.44~ Access Wa~ or Window. No sign shall physically obstruct any required access way or window in such a manner as to create a safe~y hazard. 3-3gA 072664 ~. David S~a r~resen~ ~e pe~i~e~. He a~a~ he W~no~ r~es~lng a v~ce ~n ~e f~e, ~ ~o ill~ ~hm ~o ~ve a ~e ~d ~m~ra~ure ~v~ce ~d~ ~o ~he sign. ~e nme ~C~on of ~e s~gn ~s 80 s~e feet, v~ ~e ~e ~d cmperaC=e ~ce H~ Sav~s ~u~d He then presenc~ ~ illustration o~ ~e pr~s~ siVn. ~e c~e/c~rac~e ~ion ~d ~y ~ive ~ee~. ,e noc~ ~ac ~ sc~d c~e ~d ~acure si~n us~ ~l~shing ~i~AC ~s presented a pro~l~ ~=h ~ighC bu~s ~g duC. The si~ as 9c~os~ uses only one lighC ~o=al sign is w~=Ain =he ~x~ s~gn s~e Sec ~ ~e order for s~e of =heir o~her loca=io~. ~ey will even=u~lly ch~ge All of =heir ~isti~g ~lashing =~e/=~era=ure signs for ~is ings had nec br~gh= in =~ir =~es= for · v~i~ce aC ~e s~e ~. Shes noted =ha= a n~r of =~ngl had h~ ~fo=l =hac meeCi~. Nys=r~ had p=~s~ a on ~ir ~. This is ~= H~ Savings ~ ~ne. ~e ~al~ asked if Chis is really ~aC ~ h~ ~ Co~d? ~est~, ~c should ~ =~esc~ lace=. ~if is ~aC t~y ~d do~. In anMr co a ~esCion ~di~ C~ ~ H~ ~ si~s, ~ich Shes ~chicec~s had al~ done, ~. Shes scaC~ ~aC ~e ~ siV~ ~=e ~led s~aCely ~ca~e ~e ~ was an ~cho= c~C. H~e Savings was hOC considec~ ~ ~chor Cen~C such ~ ~s, H~dw~e H~, dC the b~. ~ey ~re Co blend wi~ ~e C~C space. -X= v~ his ~de~sC~ ~ac C~cil had giv~ app=~al fo= cae 100 signs for all of =~ The ~im~ sCaC~ ~C c~ 1~ ~e f~C =es~icCion ds ~ ~d~ce ~. Shes =es~nd~ ~C ~s is ~C H~ S~qs ~ ~1~ wi~. Shes ~chiCec=s had mdc done ~e =o CAe C~ssi~ ~de~Cly. C~ssione= ~ ~d ~y ~ p~iC~r felt ~C v~ n~eea~ Co ~ve a c~e/C~aC~e siva? c~flg. IC ~uld ~ ~e ~ly I&~ ~ ~ ~Cor ~ac ~ld hava i c~e/C~aC~e rescue. inq ~n~ ~e C~ce= ~uld ~k ~ ic ~ a p~lAc s~ice, as c~ ~ in o~ c~C~es ~e~ feel c~sa~e: ~.~ r~' ~e ~Aon o~ ~ ~s si~ vas ~ercisi~ or really a p~lic se.ice? ~. Shes scac~ ~C i~ ~e si~ nrc ~o ~ on a ~le, in cae ~ddle of c~ p=~ lo~, ic consider~ ~o ~ ~ver~si~, ~C ~ lC is in w~ ~ a~ Sav~8 fronC s&vn, c~ ~elC CAe ~escion ra~s~ r~dl~ a ~ns~Io ~ ~ c~ra~ sign ~or ~ N~ ~ Sca~ clue a c~ ~ c~raCu~e ~ea~. He ~ r~resenc~ ~ ~ ac ~C ~c/1 ~c~ He re'lc dis~ss~on ~ i~ro~ ~ pylon s&~ inc~i~ a C~ ~ ~erat~e ~on. He ~o~ht ~c ~r- d~s~s~ons ~ghC ~ve ~ ~r. ~ c~e ~ ~raC~ ~ f~ ~ Saves ~ld ~ inco~ra~ ~c~ CAe Co~l ~e you ~uld s~ on H~ Ave~e, ~:e ~re ~e ~ uny ~ one =el. b fel~ ~ ~o~ ~ Sav~n ~e co ~ ~11~ ~o puc tn C~a C~ of s~gn ~ ~ ~u~ ~ ~r~le ~or eve~ o~ ~s~nes8 Co r~uesC c~s c~ of sign. C~issione: ~l~k ~k~ w~he~ eve~ branch of H~e Savings h~ a ~e ~d ~pe~aC~e device? A ~ep:esen~a~ive o~ H~e Savings s~a~ ~a~ some o~ ~hei~ s~o~e ~on~ loca~ioms migh~ no~ have r~ ~o~ The ~ai~an c~en~ed ~ he ~hough~ ~he~e ~re ~ decisions ~or ~he C~ssiom ~o make -- ~irs~, ~he~e~ or no~ ~he p~opca~ sign w~ a ~las~n~ sign, and iff ~iola~iofl o~ Ci~70~dinance, and seco~ whe~he~ o~ hOC ~he7 wished ~o app:~e a v~i~ce ~o~ ~his sign. He added ~a~ ~he O~dinaflce spoke ~o ~:~i~ ~o el~ina~e a c~val a~osphe~e c:ea~ed ~ ~oo ~Y moving signs. ~e~e is on17 one ~ving iff ~he Ci~7 a~ the presefl~ ~e -- ~s ~s ~he ~ Comissione~ G~d~shaug c~ed ~aC he ~el~ ~2 sign ~haC chang~ or ~l~h~ ~d ~o ~ considered ff a moving sign. C~iasioneE Edw~da agree, consid~ ~e p~opos~ sign ~ ~vifl~ s~qn b~ on ~he ~acCs as p~esen~ed. C~issione~ ~l~k no~ ~ whe~he~ ~he sign m~ o~ no~ was acad~ic, ~e ~dl~nce s~s ~o C~issione~ Palm ~e~eFF~ ~o ~he ~:ding o~ ~e O:dinance ~ha~ s~ke ~o moving pa~:a o~ ~he illusion of C~isaiome~ Daly made a mo~ion rec~endin~ denial o~ ~he si~n variance ~es~ ~or a ~e and ~- pe~u~e si~n ~o~ H~e Savings in Case ~24. C~issione~ Edwards second. vo~ing ag~: w~elock, ~s~n: GundeFs~ fllpoer ~pe rime an~ =empera=ure S!~ for Home Savings In the Winnetka ShopplnK Cen~ec ~th and WinnetKa Avenues. was considePed by Mr. Dave Shes, peri=loner , was presen= represen=ing Home Savings. He said Home Savings presently has a sign of 80 square, fee=. Undernea=n the approved signage pmogr~ for cen=er, Home Savings was allowed 100 square fee=. The rime and =empera=ure device as proposed would De an additional 20 fee~ which would bring =he =oral up =o 100 square feet. A vamiance Is no= reques=ed for addi=ional squaPe foo:age. Wha= Is presen=ed lsa device =ha= Is a differen= concep= In slgnage. Home Savin~s has used a flasnin~ ll~= =2pe of si~n and has had. m~2 problems wl~h =his =ype of sign, ou=side of the fac= :ha= i= Is a flasnin~ ligh= sign. The old ~ype sign was also very lnefflclen=. ~{ow sign la more In line wl=h a Seiko quar=z wa=c~ -- a dlgi=al kind of watch. There would be a single fluorescen= llgh: a~o~ =he =oD ~d individual discs =~a= chan~e wi=~ ~he :ime. This is ~ elec:omagne~lc device. The discs ~urn ove~ ~u= =~e llgh~ shines on i= con=lnuousl~. This would be =he firs= of =he new ~enera=lon clock/=empera=ure devices Home Savings, al=hough =hey do have a couple on ordeP for o=her br~ches. ~. Shes continued =ha: wha: =he2 ~e reques:lng is a vaPl~ce fop wha= =he Planning Co~!ssion considers a moving sign. Time chases and =empe~a=ure c~anges -- ~d :had ls wha: =hey are presen=In~. He said l= Is a public service =ype =~lng, bur basically l: lsa simple device =ha= Ho~ Savings has used In o=~er loom=ions. ~e Ma2or s~id =ha~ he =hou~h~ l= had been made clear a: :he ~ime =he sl~n plan for ten=er was approved, =ha: =he flashin~ si~n would no= ~e accep=a~le. He said =ha= was mood of =he Council. ~e sign ordinance does no= allow a flashing sign wl=~ou= variance, ~d =he new Hope b~k had asked for =he s~e =hlng znd was denied. Firs= =he b~k had w~:ed =he :lme/tempera:ure device on =he p21on si~ and =hen on =he window. The Mayor s~d =hese co~en=s should se= =he s~a~e for discussion =his Councilwoman Hokr co,eh=ed :ha= she did no= :hink =he sl~ would ~e effec:lve from ~he proposed Icom=ion. Aside from =he fac= =ha= l= ls a~ains= :he ordln~ce, =ne proposed loea:ion does no= ~e l= a public service. ID would no= be visible unless you were In =he cen:er~ l= would no~ ~e visl~le :o =raffic. She said she did no~ :hInk l~ would ~e ~. Shem replied =ha: =he2 have a sign consul=~= which s=udies such ma~:ePs for Home Savings. His reco~enda=lon Is =~a= =~e si~n should ~o in Oeing Home Savin~s Is nexc :o Lund% and ~ere Is a large parkin~ lo= on ~o:~ sldes~ I= Is a= =~e main en:r~ce drive =o ~o:~ sides o£ the pamkIn~ lot. These signs are expensive unit~ and Home Savings had debated whether 'the skin was worthwhile from that aspect. With .the ~u~ber of people they anticipate usl~ the center, they concluded Chat i; would be a worthwhile effort to provide this service. Mr. Shea agreed Chat It would be used primarily by the people in the parking loc areas. Mr. Shea said they would not want to locate such a siKn too close to the street because =hen you do have a potential problem with interference with traffic lights. Mr. Shea said'flashing'is a relative word and that moving would relate Co the ordinance as well. If you had a clock with a dial and hands that move, Chat would also be against the ordinance. This is a "new generation" device. I~ is a re!aClvely maintenance free, low energy use item. That is why Home Savings has gone to the new device. Councilman Enck inquired as Co when Mr· Shea had become aware of Chis request for this particul~ sign for Home Savings. Mr. Shea responded that Home Savings always wants a time and temperature sign. AC any location where you have a Home Savings, you would have this in mind initially. The sign program that was established for the Winnetka Center included 100 square feet for Home Savings as well as for the other tenants-other than the 0ank. Councilman Enck said that he was ncc talking about ~he area, but about ~he digital dis- play of time and temperature. Responsive comment from Mr. Shea was tha~ Home Savings always had the thought in mind of the digital display. Councilman Enck then inquired of Mr. Shea whether he had not also represented the anchor tenants in connection with the sign plan ~resen=ed about a month ago. Mr. Shea replied that he was before Council a month ago representing New Hope State Bank. He concurred that Lunds and Hardware Hank were discussed at the same time, ~ut pointed out that he did not represen$ Chose people. Councilman Enck then asked whether Mr. Shea was aware at that time of the fact that the Home Savings sign as presented toniCt was in violation of the current ordinance. Mr. Shea said he did have a question on thaC and had brought it up =o the Planning Com- mission meeting the last time. The time frame a month ago did not permit a request for a variance to get on that series of meetings, it was a speedy effort to get the initial program before the Planning Commission and =he Council. In that period of time, =hey could not prepare the variance request for Home Savings. This then had Co slide o~,e~ to this series of meetings. The signage program for the center included a 100 square'foot sign for Home Savings. Home Savings always.~ad it in their mind to make this kind of variance The question did come up as Co whether or not a variance was required. This was brought up a~ the last Planning Commission meeting. The ordinance seem to discuss more flashing ~ype signs -- such as the Bijou Theater --arrows of light~splnning~wheels, ~hose types of tnlngs. A= the last Planning Commission meeting, tn~ £1rs= question was whether this sign was in violation of the city ordinance. The Planning Commission considered that it was in violation of the ordinance, and a variance would ~e needed. Councilman Enck said that, in the ~seusslons Mr. Chea had with the Council relative Co the display of time and temperature for the New Hope Bank, the Council indication at that time was that such a sign was in vlola$1on of the city code as relates =o signs. Councilman Enck said that it was interesting $o have Mr. Shea now ma~e the statement =hat there was some concern as to the timing for the presentation of the sign. The indications are :hat Mr. Shea had i= for some time, and =he minutes from the Planning Commission seem to suggest tha= Mr. Shea had directions to withhold a presentation for Home Savings, except to ge= the 10G squre feet and then let them come in later. Mr. Shea c~untered tha$ Home Savings is not an anchor tenant, they are a small tenant in the center. The small tenants were set up to go in at lOG square feet. He said =hey thought that, if they had a variance request, they would have to handle it on their own. Councilman Enck then quo=ed from the Planning Commission minutes --"Mr. Shea noted that a number of things had happened ~efore that meeting. Nystrom ~ad proposed a blanket 100 .square feet for each of the tenant signs. Home Savings had ~een asked to Just present their name sign, without trying to raise any objections or anything llke that. Nystrom had said they wanted the sign plan to go throuKh easily. Home Savings had' complied wl$h this request, by presentlfl~ only the name sign. Nystrom had said $hat, if they had any variances they wanted, they should brln~ them up later on their own. This is what Home Savings had done." Councilman Enck questioned whether there had been some misrepresentations, i~. Mr. Shea to this Council tn&t there would be no v&rl~nces requested for any other signs within that shopping center. Immediately, we have & request for & variance from the sl~n ordinance. Mr. She& said this was his error in &ssuming that, in talking about variances, you were talking about square footage. He said he now agrees that this is a variance. It was his misunderstanding earlier. Councilman Enck then continued reading from the Planning Commission minutes. "The Chairman asked if this is really what they had been told?" ~r. Shes stated it seemed that this is the way the Center wanted it worked. If a variance was to be requested, it should be requested later. This is what they had done. Mr. Shea stated that this is the way it was approached and the way they felt it should be handled. It is an item that is more difficult than asking for square footage, an item ~hey were not sure about. He said they did want to present it in an independent fashlcn. He said he felt it was a separate item f~cmasignage item; it was a public service device and not a sign as such. He said this evening they are asking for a time and temperature device. To his mind this device fell into a grey area; it was not actually a Home Savings sign. He then apologized for misleading the Council by not requesting a variance to sign ordinance at that time. Question was directed to counsel as to whether it might be advisable to have findings of fact for denial. The City Attorney replied that it is not required Dy statute to have findings of fact. The Mayor stated t~h~t he had no problem with the procedures, this was their prerogitive to come in with the request the way they did. Councilman Otten commented that the ordinance was very specific in regard to moving signs ~d signs that give the indication of movement. He t~en asked how ~he city code addressed a clock. The City Manager said the Ordin~ce talks to a flashing movement, illusion, etc. A standard clock would also be a moving sign if It were dntended to a~tract a~ten~ion to the business. A standard clcck would also be prohibited.under the ordinance. Councilman Otten then said that he would oppose the request on the basis ~hat it would require a sign ordinance variance. The Mayor spoke against the variance on the basis that the ~ew Hope bank had reques~od a similar device and had been discouraged from pursuing such a device. He said he did not t~in~ it would be ethical to then grant such a sign to Home Savings. He then said the Council did want to hold the tine on flashing type signs. No co~ents were heard from the audience. ~o~io~ by Councilman Enck, second by Councilman Otte~ $0 de~y $~ recuest for a z~ ~he s!~ nr~ce fo~ Mome E~s for a time/temoerature device, as recues~eC Voting In Cavor: Erickson, ~ck, Hokr, Voting against: None