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HomeMy WebLinkAbout04/15/2008 MINUTES OF THE MAPLEWOOD PLANNING COMMISSION 1830 COUNTY ROAD BEAST, MAPLEWOOD, MINNESOTA TUESDAY, APRIL 15,2008 I. CALL TO ORDER Chairperson Fischer called the meeting to order at 7:00 p.m. II. ROLL CALL Commissioner Joseph Boeser Vice-Chairperson Tushar Desai Chairperson Lorraine Fischer Commissioner Harland Hess Commissioner Robert Martin Commissioner Gary Pearson Commissioner Dale Trippler Commissioner Joe Walton Commissioner Jeremy Yarwood Staff Present: Absent Absent Present Present Present Present Present Present at 7:04 p.m. Present Ken Roberts. Planner Tom Ekstrand. Citv Planner Chuck Ahl. City Enqineer/Actinq Citv Manaqer III. APPROVAL OF AGENDA CommissionerTrippler moved to approve the amended agenda adding item 4.a.-Minutes of April 1 ,2008, under Approval of Minutes and item 10.b.-Upcoming Open Houses for Comprehensive Plan. Commissioner Pearson seconded The motion passed. IV. APPROVAL OF MINUTES a. April 1, 2008 Ayes - all CommissionerTrippler moved approval of the amended minutes of April 1 ,2008, correcting Ms. Fischer's comments on page four striking "one acre" and adding "RE" in its place, on page three changing "by" to "be", striking the language in the motion on page two referring to dynamic display signs, driver distraction and traffic accidents and adding a public safety condition which would require staff to direct the removal of a dynamic sign if a sign is found to be a hazard by the police. Commissioner Pearson seconded The motion passed. V. PUBLIC HEARING Ayes - Fischer, Hess, Martin, Pearson, Trippler, Yarwood Abstentions - Walton 7:10 p.m. Carver Crossing (Carver Avenue and Henry Lane) 1. Conditional use permit (CUP) for a planned unit development (PUD) 2. Vacation of existing easement and right of way vacations 3. Preliminary plat Planning Commission Minutes of 04-15-08 -2- City planner Tom Ekstrand presented the report and introduced city attorney John Baker. Mr. Baker said he is the defense attorney in the case of CoPar Companies and the City of Maplewood. Mr. Baker said he wanted to talk to the commission explaining about (1) what is different with this item because of the litigation and how it affects this application and what happens if there is a denial, (2) address what is at stake in this litigation without jeopardizing the city's position, and (3) highlight what is different about this proposal from what the commission saw earlier. Mr. Baker said if the city denies the application, the case will go to a judge to decide the case. Mr. Baker said the potentials include (1) approval of the old 191-unit proposal that the commission and city council considered and denied in 2006, (2) separate or combined with number one, a determination that the previous denial constituted a taking without just compensation, or (3) that the city wins and the court upholds the ruling of the council's denial. Mr. Baker explained that the city council denied the Conditional Use Permit and Planned Unit Development on September 28, 2006 by a vote of three to two. The city council did not adopt written findings, so the findings the city must defend are the comments articulated by those council members who voted in favor of the denial on the record. Mr. Baker explained that after the city's denial, CoPar Companies then filed suit in court. The city did get some help from the Minnesota Supreme Court regarding the reinterpretation of the Automatic Approval Statute. The plaintiff lost on and the city prevailed on in 2007, but this left two claims to be decided. Mr. Baker said that one of the claims was that the denial was arbitrary, capricious and unreasonable and therefore, needed to be overturned and that if this claim were granted it would mean the 191-unit project that was considered in 2006 is granted. The other claim was that this constitutes a taking without just compensation, which the plaintiffs have set based on an appraisal of the value of 191 units versus the value of what they could build with the current approvals, which they say is 34 units at $7.9 million. Mr. Baker said mediations with the plaintiff have been ongoing in a series of meetings since October, which is a process they feel is valuable to continue. Mr. Baker explained that since this matter has time constraints, it will be considered by the city council at a special meeting on May 5. Mr. Baker said that the city council wants a recommendation from the planning commission before they consider this matter on May 5. Mr. Baker said he feels the plaintiffs argument will be that the density of what they proposed was within the density of the comprehensive plan. Mr. Baker explained that even in the south having R-1 R zoning area, the zoning permits uses with a considerably lower density and their argument may be that based on the Minnesota Supreme Court decisions that when there is a conflict between the guide plan and zoning that the guide plan prevails, so any reliance by the city on stricter limits on density in the R 1 R zoning is arbitrary and capricious. Mr. Baker said he believes they will argue that while the R1 R status is relevant, they will ask the Court to view the zoning ordinance as a whole and since a PUD is a conditional use, that they will argue that this reflects a legislative determination that the city already determined that when the city adopted that ordinance and that under reasonable conditions that satisfy the PUD and CUP criteria it is considered legislatively acceptable. Mr. Baker mentioned that in the R1 R district there are references in the Purpose section to the extension of city sewer and water. The council felt that since they had not extended city sewer and water in this area that the city was not yet at the point that they needed to permit greater densities. Planning Commission Minutes of 04-15-08 -3- Mr. Baker felt the plaintiff will argue that there is evidence in the record that sewer and water was available to the site. Mr. Baker reminded the commission that he is giving the commission the plaintiff's better arguments. Mr. Baker said he believes that when the comprehensive guide plan and zoning conflicts, that the comprehensive guide plan should not be the source of development rights. Mr. Baker said that even if there is a guide plan that is more permissive than the zoning, it should be the law that the city has the decision of when they want to up zone. Mr. Baker emphasized that this is not recognized legally in Minnesota but is a gray area. Mr. Baker then continued with differences from the 2006 application and review. Mr. Baker explained that the density has changed from 191 to 165 units, possibly going down to 149 units. Mr. Baker said that with the 165-unit plan that is more of a cluster plan there is much more green space and will preserve more trees and woodlands. Mr. Baker explained that in order to meet the 149-unit plan, the applicant is willing to temporarily postpone development of the southern portion closest to the Mississippi River to allow the city time to present a referendum for the city's purchase of these 16 south lots for preservation as open space. City planner Ekstrand presented a summary report of the 165-unit proposal. Mr. Ekstrand also discussed policies for building and land development in the Mississippi River Critical Area. Mr. Ekstrand explained that most of the neighbors' objections with this development are regarding increased traffic concerns. Commissioner Martin asked about the traffic studies done and whether the EAW. was completed in 2006. Planner Roberts said the traffic study was done in 2005 and 2006 as part of the EAW. for the site. City engineer Chuck Ahl commented that a requirement of the EAW. is that it is required to project out for 20 years and that one of the conditions of the approval is that improvements to turning lanes and traffic movement on Carver Avenue are made to handle the traffic volume. Commissioner Martin asked if the cutoff from Carver Avenue to Highway 61 was included in the study. Mr. Ahl responded that all of the improvements to Highway 61 and the Wakota bridge area were in MnDOT's plans for many years and just beginning to be implemented and were included in this study. Commissioner Hess asked whether the 165-units proposed fall within the farm residential and rural single dwelling zoning. Planner Roberts responded that as Mr. Baker pointed out, the 165-units are below the single dwelling classification of the land use map classification of the comprehensive plan for the area. Mr. Roberts explained that they would be below the farm classification if the zoning classification were to be considered, but if the R 1 R zoning is considered, the area south of Fish Creek is low density and they would be above that. City engineer Ahl explained that the commission must decide whether this new plan revision is significant enough from the previous plan. Mr. Ahl reviewed the Concept Plan W/Referendum from the staff report. Mr. Ahl said areas were added to this plan as conservation easements dedicated for protection with additional conditions that are similar to open space land. Mr. Ahl explained the areas considered for protection by a city referendum to purchase the land. Mr. Ahl said that if the referendum were to fail, the developer would be able to develop 165 units rather than 149 units. Mr. Ahl explained that if the referendum were successful, the public would be granted all of the green areas and would have 50 percent public ownership of the site. Planning Commission Minutes of 04-15-08 -4- Mr. Ahl explained that this is a land use case and the city does not have insurance coverage should they lose this case. This is a risk for the city and the city council would need to find the money to cover the cost if the case were lost. Commissioner Walton commented on if there is value to the land that is protected in this area. Mr. Walton said this is called cluster development but it does not work the way cluster development is intended to work. Mr. Walton said the area to the north is existing wetlands and asked about the south area. Mr. Ahl responded saying the area to the south is the slope that was identified for protection. Mr. Ahl said that the slope ordinance language is an "exception" part of the ordinance and that in 1984 the planning commission said that this ordinance will allow development of some of those 18 percent slopes. Mr. Ahl said that this is probably not the protection wanted today and that this section of the code will probably be revised in the future, but the 1984 ordinance is what is in effect for this development. Commissioner Trippler commented that it is hardly a generous offer for them to offer the city the land that they can't use in order to get what they want. Mr. Trippler said that this is a side issue and the real issue is whether the city has the right to plan for and zone city land and whether developers have an obligation to comply with the way the city plans and zones its property. Mr. Trippler said it is a critical issue that the R 1 R classification was established in 2003, since the developer purchased the property in 2004 and 2005. Mr. Trippler said it is the developer's responsibility to understand the zoning of the property and does not have the right to claim ignorance. Mr. Trippler explained he feels the zoning was clearly established prior to the purchase of the property and that it is in the city's best interest to take this case to court. Commissioner Yarwood asked staff why a zoning change for the south property was not considered rather than a PUD. City planner Ekstrand responded that the PUD allows flexibility in design and that the applicant had the option to apply for a PUD and did apply for a PUD. Mr. Ekstrand said the applicant applied for flexibility in design in a variety of building setbacks, housing units on smaller lots than the code usually allows, some of the street right of ways were 50 feet wide rather than 60 feet wide, and for a long dead-end street that would be more than 1,000 feet long. Mr. Yarwood said that the proposal for the south property allows for more than 100 units more than allowed under the current zoning. Mr. Yarwood said this is a unique property and this development is not appropriate for this area. Mr. Yarwood suggested that historically there are many instances for considering this area as rural, such as the city's consideration of the property for purchase as open space land and more recently being zoned as R1 R. Commissioner Fischer asked if there is case law that if there is a conflict between the comprehensive plan and zoning ordinance, that the comprehensive plan takes precedence over the zoning district. City attorney John Baker responded that the answer to this has changed over time. Mr. Baker said that previously the Meriam amendment was passed and made the zoning supreme, but in 1993 the Metropolitan Land Use Plan Act was amended and provided to the contrary. Mr. Baker said he does not feel this answers the question that if a guide plan provides one density and zoning provides a lower density and if an application comes in with a density above the zoning but below the guide plan the city has no choice but to grant it. Planning Commission Minutes of 04-15-08 -5- Commissioner Trippler asked staff to comment on why there is no information in the staff report regarding noise and also why this development is proceeding under the old tree ordinance rather than the new ordinance. Planner Roberts responded that noise issues were studied under the EAW. and apologized for not including more information on noise issues in the staff report. Mr. Roberts said that noise levels did exceed acceptable levels in the area closest to the freeway and that staff has required a Condition 5.d. in the staff report that requires adequate sound protection be provided in the form of a study for the units in the area violating the noise ordinance. Mr. Roberts also said the decision to consider this development under the old tree ordinance was part of the settlement plan directed by the city attorney. Mr. Baker also addressed the tree ordinance issue saying that it was a compromise and that it is appropriate for the city to consider the ordinance that was in place at the time of the challenged decision and that if the court decides this complaint it will base it on the old ordinance. Commissioner Walton asked the city attorney to comment on the $7.9 million lawsuit based on the 191 original units minus the developer's number of 34 units and the likelihood of the $7.9 million standing up in court. Mr. Baker said his judgment is that the likelihood is low with the reasons being related to the zoning and taking issues. Mr. Baker said his assessment of the taking claim is that their chances of success in this scenario are remote. Mr. Baker explained that this is relevant, but is also the worst case scenario. Mr. Walton responded that he feels there is too much discussion of the lawsuit and that it is the responsibility of the planning commission to make their best judgment for the appropriate land use for this area based on past and future plans and zonings and other information at their disposal. Commissioner Trippler suggested that the city might consider purchase of the entire south parcel with a referendum to cover the cost of the developer's purchase price to reimburse him for that parcel. Mr. Baker responded that various scenarios regarding acquisitions have been discussed as part of the process. Mr. Baker said this has not been an offer the developer has made or has been willing to entertain previously. Commissioner Fischer asked whether this proposal is based on sewer availability to the site. City engineer Ahl responded that sewer has been stubbed in to the site off of the Dorland cul-de-sac and Heights Drive on the south and Carver Avenue on the north. Commissioner Walton asked for clarification on ownership of the property to the west of the south development site referred to as Outlot E. Mr. Ahl responded that this parcel is owned by the applicant and is the 16-lot parcel that is the subject of a potential referendum and that the developer has agreed to delay building there until the referendum question is answered. Mr. Ahl commented that these 16 lots were appraised for $135,000 per lot. The applicant Kurt Schneider of CoPar Companies said he did not have a formal presentation. Mr. Schneider highlighted the following details: the plan has a low density of 2.28 homes per acre where the land use plan would allow 4.1 units per acre, storm water planning exceeds established standards infiltrating 57% more cubic feet of water than is required, extensive landscape tree preservation, protection of wetlands, and the immediate availability of public infrastructure. Planning Commission Minutes of 04-15-08 -6- Commissioner Yarwood asked the applicant why the southern part of the site could not be developed on an R1 R designation with a similar footprint. Mr. Schneider responded that the development and vision for the site has specifically followed the city's land use plan and the strong encouragements and requirements of the land use plan to pursue a planned unit development. Mr. Yarwood asked the applicant if it could be developed as an R1 R designation with the same footprint. Mr. Schneider responded no, it is not their plan or the city's land use plan. Commissioner Trippler asked the applicant whether their company has developed in other areas without regard to the zoning for those developments. Mr. Howard Rosten, representing CoPar Companies, responded saying it is the position of the developer that they are not in violation of city code with respect to this development. Commissioner Walton asked the developer if he considers this proposal to be cluster development. The developer responded that this is a cluster development. Mr. Walton said he defines a cluster development as allowing conservation of areas that could be developed, but are instead highly valued for whatever reason. The public hearing was opened for comments from the public. The following people spoke: 1. Jim Kerrigan, 2620 Carver Avenue, said he would like to see a lower density. 2. Michael Bailey, 1615 Sterling Street, disputed the units per acre numbers the developers referred to earlier in the meeting and that they are not accurate. Ms. Bailey said she felt the city should take the risk and go forward to a court decision. 3. Ron Kulas, 1324 S. Dorland, asked for an explanation of what is a referendum. Mr. Kulas spoke regarding the problems for developers building in the current housing market. 4. Ron Cockriel, 434 Century Avenue, spoke regarding the inconsistency with the land use plan that was not revised and the zoning plan for this site. 5. Tom Dimond, 2119 Skyway Drive, St Paul, suggested that language be added referring to "funding", but not from a specific source and also add a clause stating that the city has the option to acquire the south parcel if it has not been developed. 6. Carolyn Petersen, 1801 Gervais Avenue, said concern for this development is not limited to only the neighbors in the south but residents throughout the city and other cities along the corridor. 7. Michael Bailey, 1615 Sterling Street, spoke concerning questions still remaining about the moratorium and Ms. Bailey was concerned that the developer should pay for the installation of utilities rather than the city. 8. Kurt Schneider, CoPar Development, spoke regarding the EAW. process. City engineer Ahl responded clarifying that the EAW. was done "through" the city who hired the consultant, but not "by" the city and was paid for by CoPar Development. 9. Sue Bonitz, 1635 Sterling Street, asked if there was another environmental study beyond the EAW. City engineer Ahl responded that the EAW. was completed and determined there was not enough of an environmental impact to justify an environmental impact statement. Ms. Bonitz asked how much it will cost the city to install utilities. Mr. Ahl responded that this issue has not yet been resolved as to what the developer's share and the city's share of these costs will be. Planning Commission Minutes of 04-15-08 -7- There were no further comments from the public; the public hearing was closed. Commissioner Yarwood reiterated his question of why this property could not be developed in the R1 R designation. Mr. Yarwood said the city has one chance at developing this property right. Commissioner Pearson said that none of the discussion tonight has been about maintaining the character of the area, but in the past the moratorium, zoning and other discussions have been concerned with maintaining the character of the area and character has always been a big part of the discussion. Commissioner Fischer asked how many times in the past a cul-de-sac over 1,000 feet has been allowed. Planner Roberts responded that there are very few in the city. Commissioner Trippler said he agrees with Commissioner Pearson that this site is unique. Mr. Trippler said that he feels the city can win the law suit and if the city wants the right to decide how the city is developed in the future, they should continue to stand on this case and fight. Commissioner Yarwood moved to deny the resolution for a conditional use permit for 165-unit planned unit development for the Carver Crossing of Maplewood development on the west side of 1- 494, south of Carver Avenue. Commissioner Trippler seconded Ayes - Fischer, Hess, Pearson, Trippler, Walton, Yarwood Nays - Martin The motion passed. Commissioner Yarwood moved to deny the resolution vacating the unused easements and right of ways within the Carver Crossing of Maplewood development (the area west of 1-494 and south of Carver Avenue.) Commissioner Fischer asked staff if this is relevant at this point. Planner Roberts responded that it is important to have the motion on the record and that they do not have a development plan with an R1 R zoning. Commissioner Pearson seconded Ayes - Fischer, Hess, Martin, Pearson, Trippler, Walton, Yarwood The motion passed. Commissioner Yarwood moved to deny the Carver Crossing of Maplewood preliminary plat (received by the city on March 31, 2008.) Commissioner Trippler seconded Ayes - Fischer, Hess, Martin, Pearson, Trippler, Walton, Yarwood The motion passed Commissioner Trippler wanted to go on record to say that if the developer is willing to develop the property according to the way the property is zoned, he would be willing to vote for it. The commission took a five-minute break and then reconvened. Planning Commission Minutes of 04-15-08 -8- VI. NEW BUSINESS a. 2008 Comprehensive Plan Update - Land Use Plan Review and Discussion Planner Roberts introduced Mr. Michael Martin of M.F.RA who said he would be giving a presentation for the proposed land use map. Mr. Martin said that the moratorium study done previously did result in an executive report and he will put this report on the city's website for access and review. Mr. Roberts mentioned that all of the work done on the south Maplewood study will be integrated into the comprehensive plan update. Mr. Martin also mentioned that the information received from commissioners on goals and policies was incorporated into the latest draft of the goals and policies for the comprehensive plan. Commissioner Trippler asked if the commission will be seeing the result of the questionnaire that the commissioners filled out last month regarding zoning/land use conflicts in the city. Mr. Martin responded that the questionnaires were evaluated and the majority of the identified conflicts were conflicts in the zonings. Mr. Martin said the draft of the comprehensive plan will be reviewed by the commission at the May 22 open house. Mr. Martin said this PowerPoint presentation would be put on the website also. Mr. Martin gave an overview of the density ranges of the four residential districts, a brief discussion on the parks and open space classifications, and then gave an overview of the April 22 open house. Commissioner Trippler said he thought the density ranges were what the commission had discussed and that they were fine. Mr. Martin said the density ranges discussed are described on a net basis. Commissioner Walton commented that with the densities presented, it seems that Maplewood is closest to Woodbury in densities. Commissioner Hess asked if the commission should be applying numbers to the densities relating to the classifications received at the last meeting. Mr. Martin responded that they want the commissioners to review the densities projections and proceeded to explain the residential densities and how the numbers were projected. Commissioner Hess suggested that a grid pattern be added to the concept land use map showing numbers and letters to help identify areas of the city. Commissioner Fischer asked if any of the commissioners object to the density patterns proposed by the consultant. It was noted that there is no objection at this point. Mr. Martin mentioned that this is not the last time the commission can give feedback on the categories and density ranges and that there will be more discussion upcoming at the April 22 open house. b. Meeting and Broadcast Ordinance Planner Roberts explained that the review of this ordinance, drafted by the city attorney and requiring broadcast and recording of all meetings of government, was requested by the city council. Planning Commission Minutes of 04-15-08 -9- Commissioner Trippler questioned the language in the first sentence of Section 1 (a) and whether this language is intended to require videotaping of all council meetings. Commissioner Fischer suggested that staff submit this question to the council for their review. Mr. Trippler also suggested that any references to other government ordinances be either removed or clarified in the city's ordinance to eliminate any problem if the other government ordinances were changed. Mr. Trippler suggested that in Section 1 (g) there is confusion with the use of the word "violation" twice. Commissioner Pearson referred to Section 1(h) and said he is in agreement with this terminology as long as the "disruption or breakdown" does not become the norm. Commissioner Trippler questioned what this ordinance would cost the city and where the money would come from. Commissioner Pearson responded that money always comes from the taxpayer and that if you're going to spend taxpayers' money it should be to keep taxpayers more informed and aware of the process. VII. UNFINISHED BUSINESS None VIII. VISITOR PRESENTATIONS None IX. COMMISSION PRESENTATIONS . April 14 Council meeting: Planner Roberts reported on this meeting. . April 28 Council meeting: Commissioner Fischer will attend. . May 5 Special Council meeting: Commissioner Trippler will attend. . May 12 Council meeting: Commissioner Hess will attend. . May 26/27 Council meeting: Commissioner Martin will attend. Commissioner Trippler referred to the council's discussion about the code amendment on procedures on April 14 and whether the council should be required to get the recommendation of the planning commission and asked why the language in the code was changed. Mr. Trippler wanted to clarify for the record that the reason the language was put in was because the commission did not want the city council to do what they did with Clear Channel and that is completely ignore waiting for the commission's recommendation and plow ahead with passing over us. Mr. Trippler explained there was time for the commission to get the information needed and still get back to the council before the clock ran out. X. STAFF PRESENTATIONS Staff updated the commission on the following: a. Annual Tour Date: June 30, 2008 b. Upcoming Open Houses for Comprehensive Plan XI. ADJOURNMENT The meeting was adjourned at 11 :04 p.m.