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09-26-1989 PC MIN MEETING OF THE ELK RIVER PLANNING COMMISSION HELD AT THE ELK RIVER PUBLIC LIBRARY TUESDAY. SEPTEMBER 26. 1989 . Members Present: Chairman Kimball. Commissioners Johnson. Eber1ey. Fuchs. Morton and Schroeder Members Absent: Commissioner Nadeau Staff Present: Stephen Rohlf. Building and Zoning Administrator; Steven Bjork. Zoning Assistant; Tim Keane. City Attorney 1. Pursuant to due call and notice thereof; the meeting of the Elk River Planning Commission was called to order at 7:00 p.m. by Chairman Kimball. 2. Consider 9/26/89 Planning Commission Agenda COMMISSIONER EBERLEY MOVED TO APPROVE THE 9/26/89 PLANNING COMMISSION AGENDA. COMMISSIONER FUCHS SECONDED THE MOTION. THE MOTION CARRIED 6-0. 3. Consider 8/22/89 Planning Commission Minutes The following corrections were made to the Planning Commission Minutes. Page 1. Item 3. No.3 - It should read "Item 7" not Item 5". . Page 2 Motion was corrected to read "Commissioner Eberley and Commissioner Morton." Page 3 Raymond" read "When motion. 5th Also Ben paragraph "Mr. Raymond" should be corrected to read "Ms. in the same paragraph "to Ben Franklin" be corrected to Franklin closed." Change "Table" to "Continue" in the Page table 5 this Item 7 - Motion should read "Commissioner Schroeder moved to issue until next month to give the Planning Commission time" Page 6 - Item 8 - Condition No. 4 - change wording to read "the results be approved by City staff prior to building permit issuance. Page 6 - Item 8 - Condition No. 16 - delete word "operation". COMMISSIONER EBERLEY MOVED TO APPROVED THE 8/22/89 PLANNING COMMISSION MINUTES AS AMENDED. COMMISSIONER MORTON SECONDED THE MOTION. THE MOTION 6-0. 4. Consider 9/19/89 Planning Commission Workshop Minutes COMMISSIONER FUCHS MOVED TO APPROVE COMMISSIONER JOHNSON SECONDED THE MOTION. THE 9/19/89 WORKSHOP MINUTES. THE MOTION CARRIED 6-0. 5. Zone Change Request and Conditional Use Permit Request by Fellowship Church/P.H. . Steven Bjork. Zoning Assistant. indicated that this item was withdrawn at the request of the petitioners. Faith Planning Commission Minutes 9/26/89 . 6. Conditional Use Permit by Trailer King Steven Bjork, this request for review. Zoning Assistant, indicated that the City Council denied based on an inadequate site plan provided by the applicant 7. Conditional Use Permit to Allow Offices in the Elk River Ma11/P.H. Chairman Kimball indicated that the public hearing was continued from the previous meeting and asked for any additional testimony. Chairman Kimball read the procedures for a public hearing. Mr. Jack Sheedy, Regional Manager for Equitec explained that they did not have any more information conducive to offices in the Elk River Mall. He indicated that there were some merchants present that were not at the last meeting to support this issue. At this time, Chairman Kimball read letters sumbmitted by the Elk River Mall Association Inc. and Equitec Properties. Chairman Kimball requested that this be part of the public record. Mr. Sheedy indicated that the signatures on the Elk River Mall Association letter represented about 7% of the leasable area in the mall. . Gary Engel representing Jerry Hagen of Hagen Foods, read a letter submitted by Jerry Hagen in support of the request. Chairman Kimball asked that this letter be submitted as part of the public record. Ed Orwo11 owner of Jean's Hallmark indicated he was concerned that Mr. Hagen does not share in the common area expenses. He felt that they handle their own common area expense and do not participate in the rest of the Mall. Mr. Sheedy indicated that when Jerry Hagen signed his last lease, his lease was amended so he picks up his total percentage for the shopping center. Mr. Sheedy was concerned with the following conditions as outlined in the Elk River Mall Merchants letter and addressed these concerns: 1. Mr. Sheedy limitation be lifted. indicated he and at the would like clarification on the five year end of five years would these limitations 2. The Elk River Mall Merchants are requesting that each office should be bordered by retail space. Mr. Sheedy indicated that may not be possible. This could lead to an administrative nightmare for the City and felt this was too restrictive. 3. Mr. Sheedy indicated he would also like clarification if the 10% included the total mall area. . Ann Raymond of "Trading Winds Paperback Exchange" explained the reason for the offices to be bordered by retail was to protect Pet Appeal. Ms. Raymond indicated this would be a way to protect them from being bordered by offices and professional space. Ms. Raymond further explained the reason for the five year limitation was to give them time to get more retail space in the mall. 2. . . . Planning Commission Mintues 9/26/89 Chairman Kimball closed the public hearing. Commissioner Fuchs indicated he had a problem with the restriction that each office should be bordered by retail space. Commissoner Fuchs was in agreement with the owners that this would be too restrictive. He indicated that the 10% office space allowed in the mall be called professional office space to allow for a greater traffic flow. Commissioner Fuchs further indicated that he was in disagreement with the five year limitation that this was too restrictive. He would like to see this changed to a three year limitation. Commissioner Morton indicated that rather than restricting the owners farther, we should allow them to make the decision as to what kind of office space they are going to be renting since we are already looking at a limitation on the gross 1easeab1e space and in the best interest to get the higher traffic flow. Commissioner Morton felt that the five years is a little over restrictive and would suggest three years rather than five. Commissioner Fuchs was in agreement with Commissioner Morton. Commissioner Eber1ey indicated that she was having a hard time regarding the time frame restrictions and if this was justifiable or defensible. Tim Keane, City Attorney indicated that this was clearly defensible. Mr. Keane explained "that the regulatory frame work of the PUD is quite broad and I'm not at all troubled with advancing rational for the restrictions. It is a very defensible direction to take". Commissioner Schroeder indicated that he had no problem with the request when the City Attorney can say its very defensible to go along with what appears to be a reasonable compromise to the situation. Commissioner Johnson was in agreement with Commissioner Schroeder. Commissioner Johnson further indicated that she would like to see the three year limitation rather than the five. After discussing this issue, it was the consensus of the Planning Commission that the 10% would include the space between Hagens and Ben Franklin to the end of the new addition. COMMISSIONER FUCHS MOVED TO RECOMMEND TO THE CITY COUNCIL APPROVAL OF THE CONDITIONAL USE PERMIT TO AMEND THE ELK RIVER DEVELOPMENT AGREEMENT TO ALLOW UP TO 10% OF THE LEASEABLE SPACE IN THE MALL TO BE USED AS BUSINESS AND PROFESSIONAL OFFICES . (THIS WOULD BE FROM THE NORTH END TO THE SOUTH END WHICH WOULD INCLUDE COUNTY MARKET AND PAMIDA FOR LOT 1, BLOCK 1, ELK RIVER PLAZA 2ND ADDITION, LOT 2, BLOCK 1, ELK RIVER PLAZA 2ND ADDITION AND LOT 4, BLOCK 2, ELK RIVER PLAZA 1ST ADDITION) WITH THE CONDITION THAT AFTER THREE YEAR TIME FRAME, RESTRICTIONS FOR OFFICES IN THE PUD AGREEMENT BE ELIMINATED. COMMISSIONER MORTON SECONDED THE MOTION. THE MOTION CARRIED 6-0. 3. . . . Planning Commission Minutes 9/26/89 8. Conditional Use Permit by Triple S. Investments (Big Wheel) to Allow. Offices in the Elk River Ma11/P.H. Chairman Kimball indicated that the public hearing was continued from the previous Planning Commission meeting and asked for any additional testimony. There being no additional testimony, Chairman Kimball closed the public hearing. Steve Rohlf indicated this was the same question and issue as the last item and felt they met the seven standards. COMMISSIONER MORTON MOVED TO RECOMMEND TO THE CITY COUNCIL APPROVAL OF THE CONDITIONAL USE PERMIT TO AMEND THE DEVELOPMENT AGREEMENT TO ALLOW BUSINESS AND PROFESSIONAL OFFICES ON LOT 5, BLOCK 1, ELK RIVER PLAZA 2ND ADDITION. COMMISSIONER JOHNSON SECONDED THE MOTION. THE MOTION CARRIED 5-1. Commissioner Kimball voted against this request. 9. Variance Request by Raymond Wa1d (Landmark Motel)/P.H. Steven Bjork, Zoning Assistant, addressed this issue indicating that the applicant is requesting an expansion of a non-conforming use for Lots 8 and 9, Block 6, Houlton Addition. Mr. Bjork addressed the standards for granting alterations for non-conforming uses as outlined in his memo. Raymond Wald, the applicant, was present and indicated the main reason for his request was to make the cabins big enough so they are rentable. Chairman Kimball opened the public hearing. The following people were opposed to the variance request by Raymond Wa1d: Chuck Regan of 1165 Main Street was concerned about the excessive noise and traffic problems. He also felt the house was not being used for its original intent. Ethel Macgregor of 1145 Main Street was concerned with the garage and what it was being used for. William Macgregor residential area. down. of 1145 Main Street felt this use should not be in a Mr. Macgregor would like to see the intensity cut Bud Houlton who that this use indicated that they had to put lives south of the motel was in agreeemnt with Mr. Ragan has changed from its original intent. Mr. Houlton the tenants were encroaching on his property, therefore up a fence. John Houlton of 1185 Main indicated that the assessed value of their property was lowered as a direct result of the motel. 4. Planning Commission Minutes September 26. 1989 . Mrs. Andrew Horvath of 1141 Nile Lane was in agreement with Mr. Ragen and Mr. Houlton that this would lower the land values. Mrs. Horvath felt the use has changed from its original intent. Kirstin Clouse of 1135 Main felt uncomfortable with the situation because of the occasional harassment of neighbors by the motel tenants. Randy Clouse did not feel comfortable with what Mr. Wa1d was proposing. Chairman Kimball closed the public hearing. Steve Rohlf. Building and Zoning Administrator felt the use had intensified since it was originally grandfathered in. Mr. Rohlf explained that with a variance you can set conditions to assure compatibility as related to the standards of the variance. He indicated he would be willing to give them the expansion so we could put restrictions on it. Mr. Rohlf suggested that if this request is approved. one of the conditions he would like is right of entry with proper notice to inspect the property. Only The fire chief has the right of entry under fire code violations. . Commissioner Eber1ey questioned the City Attorney on c1arifiction on what basis this expansion or variance must be measured. Is this only a question of the four standards for the expansion of a non conforming use or does the Planning Commission also consider the five standards for granting a variance. Tim Keane. City Attorney. stated that we have four standards for the expansion of a non conforming use. Also. to intensify a non-conforming use. the application must be considered pursuant to the procedures and standards set forth in Section 900.40. which are the variance procedures and standards. Steve Rohlf. Building and Zoning Administrator indicated what your actually looking at is nine standards. four for non conforming use and five for the variance. Mr. Rho1f stated that if you grant this. one of the conditions I would recommend is that staff have the right to inspect the property to see what it is now being used for. and to see if it was intensified. Mr. Rohlf further indicated that he would like to see the number of guest per unit limited. Commissioner Schroeder felt they did not meet the five standards for a variance and making recommendations would be hard to enforce. . Commissioner Fuchs was in agreement with Commssioner Schroeder that if we were to approve this with conditions it would be hard to enforce. Commissioner Fuchs indicated he would like to see this tabled until we can find out what was actually grandfathered in. In addition. I feel we should look at the site to determine if the garage is being used for rental units. Commissioner Fuchs questioned whether the house was actually used as a residence only or do we have units rented out within the house. He further indicated that the police records should be looked at to see what is actually on record to see if this is detrimental to the neighborhood. 5. . . . Planning Commission Minu~es September 26. 1989 ! Steve Rohlf indicated that there are no records of what was grandfathered-in in 1980. therefore making it difficult to know what we can enforce. Commissioner Kimball questioned Mr. Keane on a legal determination of the use. Commissioner Kimball indicated he would like to see this issue resolved rather than tabling it. Tim Keane. City Attorney indicated that what you're faced with is that in 1980 the existing zoning ordinance was adopted and incorporated with prOV1S10ns and clauses for grandfathering in these uses creating the non- conformities and the amoritization of the non-conforming use. Steve Rohlf indicated that the applicant created a dangerous situation for a lot of people when he had the cubicles in the basement. Staff plans to have the fire marshall back to make sure that it is not happening again as he has the right of entry. Mr. Rohlf further indicated that he had asked legal counsel if we could enforce the 10 units as 10 units and not multiple units each. Mr. Keane indicated that we could as a condition of this approval. Commissioner Johnson indicated that she was uncomfortable with approving this request and then putting conditions that mayor may not be enforceable or carefully watched. Commissioner Kimball was in agreement with Commissioner Schroeder that there could be problems enforcing that which is already enforceable. COMMISSIONER SCHROEDER MOVED TO RECOMMEND TO THE CITY COUNCIL DENIAL BASED ON THE PLANNING COMMISSION'S FINDINGS THAT THE REQUEST DOES NOT MEET CONDITION NO. 2 FOR GRANTING THE EXPANSION OF A NON CONFORMING USE AND THE REQUEST DOES NOT MEET THE FIVE STANDARDS FOR GRANTING A VARIANCE. THE FINDINGS OF FACT WERE AS FOLLOWS: 1. THE APPLICANT HAS NO HARDSHIP IN REGARDS TO THE PROPERTY. 2. SINCE THERE WAS NO HARDSHIP. VARIANCE STANDARD NO.2 CAN NOT BE MET. 3. THERE WAS NO OTHER PROPERTIES IN THE R-1C ZONE THAT ARE CURRENTLY ENJOYING RIGHTS THAT THE APPLICANT IS NOT ALLOWED. 4. THE APPLICANT PURCHASED THE MOTEL PROPERTY WITH FULL KNOWLEDGE THE PROPERTY IN QUESTION WAS CLASSIFIED AS A NON-CONFORMING THAT THAT USE. 5. THE USE HAS A DETRIMENTAL AFFECT ON THE NEIGHBORHOOD. COMMI SSIONER EBERLEY SECONDED THE MOTION. THE MOTION CARRIED 6-0. After discussing the motion. it was the concensus of the Commission that they would like to have a resolution created to address the concerns by the Planning Commission. 6. . . . Planning Commission Mintues 9/26/89 COMMISSIONER EBERLEY DIRECTING STAFF TO FOLLOWING CONCERNS: REQUESTED REVIEW THE THAT THE CITY COUNCIL SHOULD CONSIDER PROPERTY IN QUESTION IN REGARDS TO THE 1. FIRE CODE VIOLATIONS. 2. MULTIPLE TENANTS. OVER CROWDING. 3. TRAFFIC CONCERNS. 4. REVIEW OF GRANDFATHERED RIGHTS FOR THIS OPERATION. 5. POSSIBLE PUBLIC NUISANCE. 6. USE OF MAIN STRUCTURE. COMMISSIONER SCHROEDER SECONDED THE MOTION. THE MOTION CARRIED 6-0. 10. Site Plan Handout Tim Keane. City Attorney. suggested that the site plans not be included in the packets until they have been reviewed and accepted by staff. 11. Impact Fees Tim Keane. City Attorney. distributed a memo on Impact Fees. Mr. Keane discussed the issues in his memo relating to private financing for public improvements such as; water. sewer. storm systems and road fees. This issue would later be discussed at the Planning Commission workshop to be held on October 17. 1989 to further update the ordinance. 12. Cluster Development Steve Rohlf. as outlined homes. Building and Zoning Administrator. reviewed the questions in his memo that need to be answered regarding cluster 13. Discussion Conditional Use Permit Review General discussion was held on past conditional use permits. 14. Planning Commission Representative to Attend Council Meeting on October 16. 1989 It was indicated that Commissioners Schroeder and Kimball would attend the October 16. 1989 City Council meeting. 7. Planning Commission Mintues September 26, 1989 . 15. Adj ournment There being no further business, COMMISSIONER MORTON MOVED TO ADJOURN THE MEETING. COMMISSION EBERLEY SECONDED THE MOTION. THE MOTION CARRIED 6- O. The meeting of the Elk River Planning approximately 11:00 p.m. Commission adjourned at Respectfully submitted, -ShtWJ1U0ltWU Sharon Maue Zoning Secretary . . 8.