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Planning Commission Agenda 10-06-2009 AGENDA MONTICELLO PLANNING COMMISSION October 6th, 2009 6:00 PM Mississippi Room, Monticello Community Center Commissioners: Rod Dragsten, Charlotte Gabler, Lloyd Hilgart, William Spartz, and Barry Voight Council Liaison: Susie Wojchouski Staff: Angela Schumann, Gary Anderson, Steve Grittman – NAC 1. Call to order. 2. Consideration to approve the Planning Commission minutes of August 4th and September 1st and September 22nd, 2009. 3. Citizen Comments. 4. Consideration of adding items to the agenda. 5. Public Hearing – Consideration of a request for amendment to Planned Unit Development to allow application of R-1 Zoning District Standards in an R-1A Zoning District. Applicant: Pearson, Robert 6. Public Hearing - Consideration of a request for amendment to Chapter 3, Section 5 of Monticello Zoning Ordinance relating to off-street parking and storage on residential property. Applicant: City of Monticello 7. Consideration of a request for sketch plan review of a proposed Comprehensive Plan Amendment for a ground-floor residential development in the CCD. Applicant: Master’s 5th Avenue 8. Community Development Director’s Update. 9. Adjourn. Planning Commission Minutes — 09/01/09 AGENDA MONTICELLO PLANNING COMMISSION September 1St, 2009 Mississippi Room, Monticello Community Center Commissioners: Rod Dragsten, Charlotte Gabler, Lloyd Hilgart, William Spartz, and Barry Voight Council Liaison: Susie Wojchouski Staff: Angela Schumann, Gary Anderson, Steve Grittman — NAC Call to order. Chairman Dragsten called the meeting to order and noted a full quorum of the Planning Commission present and the presence of Council liaison Wojchouski. 2. Consideration to approve the Planning Commission minutes of August 4th 2009 Schumann indicated that minutes would be provided at the October meeting. 3. Citizen Comments. None. 4. Consideration of adding items to the agenda None. 5. Continued Public Hearing - Consideration of a request for a Conditional Use Permit for an accessory storage building in a mobile home park zoned R-4 Mobile Home Park District. Applicant: Kjellber 's Inc Planner Grittman presented the staff report for this item, noting that at the last meeting, the Planning Commission tabled this item to allow the applicant to respond to questions posed by the Commission. Grittman stated that these types of buildings are allowed by conditional use permit, subject to certain conditions, which he outlined. Grittman pointed out that the existing building is adjacent to an outdoor storage facility, which is used to store materials used for the maintenance of the mobile home park. The area appears to be surfaced to control dust, however, there are questions regarding screening of the outdoor storage from residential uses. Grittman explained that the lack a landscape plan that illustrates existing and proposed landscaping elements did raise some issues. As such, the Commission tabled action. Planning Commission Minutes — 09/01/09 Subsequently, the applicant has provided an aerial photograph of the site with notations on the existing landscaping. Grittman referred to landscaping elements present on the image. Grittman stated that if the Commission would like to recommend approval, staff would recommend the following conditions: ■ Submission of a landscaping plan to City Staff showing full screening around the west and south boundaries of the storage area. Said landscaping should be designed to provide year-round screening to a height of at least six feet. • Installation of the planned landscaping should be required to be completed by October 31, 2009. • Any fencing proposed as part of the plan shall receive the proper permits from the City of Monticello • The building shall receive full inspections by the City of Monticello Building Department, and be subject to double fees as provided by the City's Building Code. • The applicant shall make all corrections directed by the Building Department in a timeframe as directed by the Building Official Hilgart inquired if the applicant is asking to add outdoor storage. Grittman stated that the outdoor storage is already there. The code specifies that if the proposed accessory building is associated with any outdoor storage, that outdoor storage must be screened from surrounding residential uses. There was discussion about which buildings actually exist in regard to the sketch provided. Grittman clarified that the building labeled as "proposed" is already existing. Gabler inquired what was submitted for a landscape plan. Grittman confirmed that the aerial was submitted as the landscape plan. Chairman Dragsten re -opened the public hearing, noted that the hearing had been continued in August. Brian Southwell, legal counsel for the applicant, addressed the Commission. He stated that the reason that the applicant is presenting the aerial image as a landscape plan is because the storage yard has been as is since the seventies. The landscaping has been in place since that time. Cedar trees are in place providing screening to the west. To the south is a sales yard which is not for residential occupation, so it is their position that screening to the south is not needed. To the east, there is an existing line of full lilacs, which provide screening. To the north is an existing building, close to the building for which the CUP has been requested. Under normal circumstances, the applicant would provide a landscape plan, but in this case, the landscaping has been in place for many years. Southwell commented that the building for which the CUP is being requested will actually reduce the amount of outdoor storage. There are no residences from the south, east or north to be impacted. To the west, where there are residences, Southwell stated that there is screening in place. 2 Planning Commission Minutes — 09/01/09 Voight inquired whether the applicant has received any complaints. Southwell stated that he has asked that question and staff has received no complaints. Voight inquired whether the residents were notified of this applicant. Southwell stated that residents were not notified. Schumann stated that because the residents of the mobile home do not own the underlying property, just their units, they do not receive notice. Hilgart inquired when the building was constructed. Southwell stated that he believed it was constructed in 2007 in error. Southwell indicated that it was constructed due to misinterpretation of code. Southwell indicated that he and the applicant had been working with City legal counsel to resolve this matter over the course of two years. Hilgart inquired when the City found out the building was constructed. Anderson replied that a resident called to advise that a building was being built in the fall of 2007. The building was completed by the time the call was made. Hilgart inquired why it has taken two years to get to this point. Schumann stated that the City has been working with the applicant during that time to try to resolve this issue. At this time, the City attorney has advised that the City consider a new application and narrowly define the scope of the review to the required conditions as specified by the code. Dragsten inquired whether the applicant had seen the proposed conditions of approval. Southwell confirmed, stating that it seemed that the remaining sticking points relate to the lack of a landscaping plan. Southwell stated that item "a" is under discussion, item "b" has been resolved in their opinion, as all screening seems to be in place as needed. In regard to item "c", they are not proposing any fence. In relationship to the review of the building official, they would agree to make any corrections as outlined by Mr. Anderson in his review of the building permit documents. Gabler stated that she expects to see a landscape plan versus the photograph that was supplied. She suggested that we need to be clear as a City about what is acceptable as this seems to be an avoidance of submission of the plan. Southwell stated that they could provide supplemental information, if needed. Chairman Dragsten stated that to the west, he stated that he does have concerns about adequate buffering. To the north, there does not seem to be a problem. Dragsten stated that for the safety and welfare of the applicant's own property, it would seem that this should have been resolved long ago. Dragsten commented that it seems that this item has been dragging on for some time. He stated that he believes that the landscaping plan is important. The lilacs do provide good screening. To the south, perhaps that doesn't need to be fully screened due to lack of residential use. Voight inquired if there are any plans that the area to the south would be used for residential purposes. Southwell stated that it would absolutely not be used for mobile 3 Planning Commission Minutes — 09/01/09 home residences. Voight stated that the northwest area needs to be reviewed in terms of landscaping. Southwell stated that they would then supplement the record to submit a landscape plan showing the north and west. Voight suggested that the entire are be shown, with additional landscaping for buffering to the west and possibly north. The Commission discussed whether the fencing condition would be needed. Wojchouski commented that perhaps a view to the south would be good so that maintenance could see people approaching the sales area. Hearing no further comments, Chairman Dragsten closed the public hearing. MOTION BY COMMISSIONER VOIGHT TO RECOMMEND APPROVAL OF THE CONDITIONAL USE PERMIT BASED ON THE FINDINGS OF FACT INCLUDED IN THE 09/01/09 STAFF REPORT, WITH THE FOLLOWING CONDITIONS: a. Submission of a landscaping plan to City Staff showing full screening around the west and south boundaries of the storage area. Said landscaping should be designed to provide year-round screening to a height of at least six feet. b. Installation of the planned landscaping should be required to be completed by October 31, 2009. C. The building shall receive full inspections by the City of Monticello Building Department, and be subject to double fees as provided by the City's Building Code. d. The applicant shall make all corrections directed by the Building Department in a timeframe as directed by the Building Official MOTION SECONDED BY COMMISSIONER SPARTZ. MOTION CARRIED, 5-0. 6. Consideration of a request for sketch plan review of a proposed Comprehensive Plan Amendment for a ground -floor residential development in the CCD Applicant: Master's 5th Avenue Community Development Director Schumann stated that the applicant requested tabling of this item to the October meeting. Gabler inquired of the other Commissioners what the general feeling was on this request. Staff confirmed that both the use and look of the building had changed since the first request. The applicant is now proposing an exclusively residential use with a different building design. The applicant also indicated that he is not tied to this architecture. The discussion he is looking for relates to the land use and whether the ground floor residential and higher density of residential would be acceptable to the City. The staff report addresses both of those items. Gabler stated that as it is downtown, is the City looking for more commercial, or is it more transitional. Voight responded that it is commercial to the north, south and east, with 11 Planning Commission Minutes — 09/01/09 residential to the west. He stated that the idea of all residential is not completely alarming. However, what they had proposed architecturally needed more thought. It would need to be convincing to consider the amendment. Dragsten inquired what type of housing was proposed. Grittman confirmed it was proposed as market rate residential. Wojchouski stated that the 1997 plan calls for upper-level residential, which lately has not proven very successful. She stated that it would likely be many years before that piece was able to be developed successfully for commercial. Grittman noted that the redevelopment plan wants to preserve as much land as possible for commercial — it isn't to discourage residential. Wojchouski noted that the new comp plan also allows for commercial development on east Broadway. Spartz noted continued parking issues in that area. Hilgart stated that the issue isn't having people in the downtown, the issue is saving that property for the future and preserving the opportunity for commercial. In the short term we may not need it, but it is the long term that needs to be considered. Schumann noted a comprehensive plan amendment would be needed. So, this review would also be brought forward to the City Council for their input. MOTION BY COMMISSIONER VOIGHT TO TABLE ACTION ON THE REQUEST MOTION SECONDED BY COMMISSIONER SPARTZ. MOTION CARRIED, 5-0. 7. Consideration of a request for extension of Conditional Use Permit for a Drive -Through Facility, Joint Parking and Joint Access and a request for Final Plat for Riverview Square Second Addition. Applicant: Broadway Market Investors LLC Schumann stated that Broadway Market Investors and M & I Bank are requesting an extension of their conditional use permit for commercial development project at Broadway Market. On September 2nd, 2008, the Planning Commission reviewed and recommended approval of a Conditional Use Permit for a bank facility at the corner of CSAH 75 and CSAH 39. The site is zoned PZ -M, Performance Mixed District. The City Council approved the CUP on September 22, 2008. Schumann stated that due to non-use, the conditional use permit for the CUP will expired on September 22, 2009. The Monticello Zoning Ordinance requires that conditional use permits expire due to non-use after one year. As such, the applicant has requested a one- year extension. All previously approved conditions will apply to any extension of the permit. Gabler inquired if Broadway Market Investors owns all of the property around this site. M & I Bank now owns this site. Gabler requested that staff talk with Broadway Market about the existence of incomplete building and related materials on the Broadway Market site as they present a blight issue. 5 Planning Commission Minutes — 09/01/09 MOTION BY COMMISSIONER TO SPARTZ RECOMMEND EXTENSION OF THE SEPTEMBER 22ND, 2008 CONDITIONAL USE PERMIT FOR PLANNED UNIT DEVELOPMENT FOR A BANK FACILITY WITH DRIVE-THROUGH FACILITY, JOINT PARKING AND JOINT ACCESS FOR M & I BANK WITH THE CONDITION THAT ALL PREVIOUSLY APPROVED CONDITIONS BE ASSIGNED TO THE EXTENSION. SCHUMANN POINTED OUT THAT THIS ITEM HAD RELATIVELY FEW CONDITIONS ATTACHED. MOTION SECONDED BY COMMISSIONER GABLER. MOTION CARRIED, 5-0. 8. Consideration to review an update regarding the amendment of the Monticello Zoning Ordinance for Off -Street Parking. Planner Grittman explained that the Commissioners and Council members had the opportunity to discuss the common issues and concerns with off-street parking in a workshop setting. The result of that workshop is the ordinance presented in the staff report. One of the most important features of the proposed amendment is the inclusion of a table which illustrates the type of vehicle, the location it may be parked and the surfacing requirements. There is also a reference to commercial vehicles. Grittman stated that it does fit within the context of this discussion, so it has been identified as a continuing issue with some suggested language. Grittman noted that the draft language includes definitions. A due amount of time was spent defining terms as a basis for clarity. This includes clarification on yard spaces. In that regard, Grittman noted the presence of an illustration to aid in ordinance clarity. Grittman stated that the material has also been consolidated into one place for ease of use. Grittman opened the discussion for the Commission's questions. Voight inquired whether on page 3, the definition of vehicle storage should include "passenger vehicles". Grittman stated that this is by design, as the guidance was to not allow the storage of passenger vehicles, but rather parking of those vehicles. Voight inquired whether vehicles parts would fall under the refuse section. Grittman confirmed. Voight stated that he liked the way large and small commercial vehicles were treated in the proposed amendment. Voight suggested that small commercial vehicles be treated just like passenger vehicles with exception of the storage item. He also asked about item G in the diagram, asking whether the City only requires screening within 5' of ROW, or whether it is required regardless. Voight stated that perhaps this should be required no matter what. Grittman stated that he would clarify prior to Council. Schumann asked if there were any reason not to make this area consistent with the 6' drainage and utility easement. Grittman stated that the standard for most parking areas allows for 3' setback from property line. In that case, the 6' requirement would only be adjacent to street, not nowhere else. Dragsten stated that he believes the reason for 5' is because for a 20' setback on side yard, about 15' would be needed just to park a certain sized vehicle. Co Planning Commission Minutes — 09/01/09 Dragsten confirmed that the parking setback is required to be 3'. He inquired if there are situations within the community that do not meet this requirement. Anderson confirmed. Dragsten inquired about the alpha -numerical designations of the definitions. Grittman stated that was the way the ordinance is set up now. With the updating of the code, these can also be re -codified to make more sense. Dragsten inquired about the specification requiring 6" of Class 5 material. Grittman noted that was included within the current ordinance. Anderson stated that was not unreasonable in clay soils. Schumann noted that she had not expected the Commission to move this item forward so quickly with additional comment. As such, she did not publish notice for a hearing in September. This item will need to come back in October for an additional review. 9. Community Development Director's Update. Chairman Dragsten inquired if there had been any feedback on the new sign ordinance. Schumann stated that in filling in at the front desk, she has heard some positive comments. Wojchouski commented that it was nicely done and well organized. Dragsten stated that the Chamber members he had spoken with said it was an improvement. Hilgart inquired about the property between I-94 and CSAH 75, as it is a blight concern. Schumann noted that the City continue to work with the County on enforcement, as the property is still in the township. 10. Adjourn. MOTION BY COMMISSIONER SPARTZ TO ADJOURN. MOTION SECONDED BY COMMISSIONER GABLER. MOTION CARRIED, 5-0. 7 MINUTES MONTICELILO PLANNING COMMISSION — SPECIAL MEETING September 22nd, 2009 6:30 PM Academy Room, City Hall/Monticello Community Center Commissioners Present: Rod Dragsten, Charlotte Gabler, Lloyd Hilgart, William Spartz, and Barry Voight Council Liaison Present: Susie Wojchouski Staff: Angela Schumann, Gary Anderson, Call to order. Chairman Dragsten called the meeting to order and noted a full quorum of the Commission and the presence of Council liaison Wojchouski. 2. Citizen Comments. None. 3. Consideration of adding items to theagenda. None. 4. Public Hearing - Consideration of a request for an amendment to Chapter 14, B-4 (Reuional Business) District, of the Monticello Zoning Ordinance to allow Veterinary/Animal Pet Clinic/Hospitals and Domestic Animal Boarding, a request for Amendment to Planned Unit Development, and a request for a Conditional Use Permit for Veterinary/Animal Pet Clinic/Hospital and Domestic Animal Boarding in a B-4 (Regional Business) District Applicant: Ryan Companies US Inc. Community Development Director Schumann provided the staff report for the request, stating that Ryan Companies is seeking a series of approvals to accommodate the addition of a retail building to the Union Crossings which would be occupied by Petsmart. Schuman stated that this proposed use would require an amendment to the zoning ordinance allowing their use in the B-4 district by CUP. As such, the application includes a Conditional Use Permit for development stage Planned Unit Development for the construction of an inline retail center, an amendment to the zoning ordinance, and a CUP application for Petsmart to occupy the new building upon completion. Schumann explained that the retail use is consistent with the Comprehensive Plan and with general purpose of the B-4, Regional Business, district. Schumann stated that in terms of building design, parking, setbacks, landscaping and signage, the applicant's request is consistent with the ordinance and/or with the PUD governing the project. Access and circulation was established at the time of the original PUD and is in place for this project. She noted that included within the conditions of approval, the City Engineer did have minor comments relating the utilities and to the proposed trash enclosure. In relationship to the zoning ordinance amendment and conditional use permit, Schumann explained that the current zoning ordinance does not have an entry for retail pet supplies. Animal Pet Clinics and Pet Hospitals both are allowed in the B-3, Highway Commercial District by CUP, however, the conditional uses in the B-3 district do not roll over into the B-4 district. As such, new entries for these uses are proposed in order to accommodate the range of uses proposed for the Petsmart building. She stated that the first zoning amendment would be to add domestic pets and pet supply sales to the list of allowed retail uses in the B-4 district. The second amendment would be to add veterinary clinics and hospitals and pet grooming to the list of conditional uses in the B-4 district and specify conditions allowing for that use. With those amendments, Schumann stated that the City can grant a CUP to the Petsmart site for both grooming and veterinary care, along with permitting pet and pet supply retailing in the B-4 District. The amendments will allow for grooming, boarding, training as incidental uses to the retail and veterinary activities. Schumann noted that the applicants have indicated that no outdoor activities would be a part of the Petsmart operation. Schumann concluded by stating that the proposed use appears to be consistent with the intent of the B-4 District and the existing PUD. Staff recommends approval of the CUP for Planned Unit Development, the zoning district amendments, and the CUP for Petsmart, subject to the conditions outlined in Exhibit Z. Commissioner Gabler inquired if this amendment impacts the use for the current veterinary clinic in any way. Schumann indicated that it would not. Commissioner Spartz requested that staff verify whether a definition of "domestic animals" was included in the general definition statements. Chairman Dragsten inquired whether the animal control officer completed the required annual inspection at the existing veterinary facility, consistent with the requirements of the B-3 CUP. Schumann stated that she was unsure whether that was being completed, but would verify. Council member Posusta inquired whether the facility would include a pet hospital. Chairman Dragsten opened the public hearing. Mark Kampmeyer addressed the Planning Commission on behalf of Ryan Companies, the applicant. Kampmeyer stated that the vet hospital use refers to a boarding and observation use, which would be tightly controlled and completely interior to the building. At this time, Petsmart has no plans to include a pet clinic at this location. Posusta confirmed that as all the uses would be interior to the building, there would be no cause for noise issues. Kampmeyer confirmed. Dragsten inquired whether the applicant had been made aware of the engineer's comments. Schumann stated that they had been provided to the applicant, and that the applicant's engineer and Bruce Westby were communicating regarding those comments. Engineer Secora stated that they are in agreement with all conditions as noted, with exception of the requested changes to the trash enclosure. Secora noted that the enclosure proposed is consistent with the enclosure in place at the neighboring Office Max. Schumann noted that given the PUD designation, the Commission could recommend flexing on the requirement that the enclosure materials be consistent with the building materials. Council member Posusta inquired if this would be a franchise location. Kampmeyer stated that it would be a corporate owned site. Hearing no further comment, the Chairman closed the public hearing. Gabler inquired whether the change in rear -facing materials was appropriate given screening levels along that side. Schumann confirmed. Voight asked what type of materials the Office Max enclosure. Ryan representatives indicated that the enclosure was chain link with slats. Voight stated that as long as the materials were consistent between the two stores, he thought the change would be acceptable. Council member Posusta requested that Ryan provide some verification on how Petsmart planned to dispose of any animal waste prior to Council consideration. MOTION BY COMMISSIONER VOIGHT TO RECOMMEND APPROVAL OF THE DEVELOPMENT STAGE PLANNED UNIT DEVELOPMENT, BASED ON A FINDING THAT THE PROPOSED USE IS CONSISTENT WITH THE INTENT OF THE EXISTING PUD AND THE B-4 DISTRICT, SUBJECT TO THE CONDITIONS OUTLINED IN EXHIBIT Z BELOW: a. All wall pack lighting shall be full cutoff lighting to reduce glare. b. The applicant shall review the plans to comply with the recommendations of the City Engineer as described in the letter dated September 18th, 2009, with the following notations: 1. Trash enclosure shall be constructed with materials consistent with adjacent property. 2. Revise the sanitary sewer service line from SDR 35 to SDR 26. 3. The 1 %2" copper domestic supply line be tapped into the 6" DIP inside the building and not underground. 4. Waste disposal services to be clarified. MOTION SECONDED BY COMMISSIONER SPARTZ. MOTION CARRIED, 5-0. MOTION BY COMMISSIONER HILGART TO RECOMMEND APPROVAL OF THE AMENDMENT, BASED ON A FINDINGS THAT THE AMENDMENT IS CONSISTENT WITH THE INTENT AND PURPOSE OF THE B-4 DISTRICT, AND THAT THE USES WOULD BE CONSISTENT AND COMPLEMENTARY TO SIMILAR RETAIL SALES AND SERVICE USES. MOTION SECONDED BY COMMISSIONER SPARTZ. MOTION CARRIED, 5-0. MOTION BY COMMISSIONER SPARTZ TO RECOMMEND APPROVAL OF THE CUP, BASED ON A FINDING THAT THE PROPOSED USE WILL MEET THE CONDITIONS OF THE ZONING ORDINANCE AND WILL BE CONSISTENT WITH THE INTENT OF THE B-4 DISTRICT AND THE COMPREHENSIVE PLAN. MOTION SECONDED BY COMMISSIONER GABLER. MOTION CARRIED, 5-0. Adjourn. MOTION TO ADJOURN BY COMMISSIONER VOIGHT. MOTION CARRIED BY COMMISSIONER SPARTZ. MOTION CARRIED, 5-0. Planning Commission Agenda –10/06/09 1 5. Public Hearing: Consideration of a request for an amendment to a Planned Unit Development for Hillside Farms 4th Addition. Applicant: Bob Pearson. (NAC) REFERENCE AND BACKGROUND PUD Amendment The developer of Hillside Farms is seeking an amendment to the Planned Unit Development approval for portions of the 4th Addition of the plat. The project area is zoned R-1A, but a PUD was approved for the project that permitted a reduction in the residential development standards for lot size to those similar to the City’s R-1 zoning district. Development standards related to the buildings remained consistent with R-1A requirements. At this time, the applicant is seeking basic R-1 zoning treatment for Lots 5, 6, and 7 of Block 1, Hillside Farms 4th Addition. This is the third requested amendment to the Hillside Farm Development. In 2006, an amendment was granted which reduced the square footage requirements for two story and modified two-story designs. In 2008, an amendment for 6 lots in the second addition was approved, allowing a garage-forward design not to exceed 12’ from principal structure line. That amendment also prohibited split-entry homes on the balance of those lots. The original concern was that the site zoned and granted preliminary approval at a time when the City was developing its R-1A concept, including the creation of a specific designation for “step-up” housing is higher amenity locations of the community. Because this site has extensive views to the south and west, it was viewed as a candidate for R-1A inclusion, and the PUD was adopted as a compromise to the full R-1A rules since some zoning and development approvals were in place. The applicant has not been specific as to precisely what types of accommodations might be made to the regulations, other than to refer to the R-1 zoning district regulations. Staff met with the applicant and discussed a number of options. The applicant noted that the Hillside Farms project abuts property on the west (Fenning Avenue) east (adjoining plat) and north (undeveloped land) that raises issues with lot value. As such, the application has come forward relating to a discrete number of parcels, but as noted, without specificity regarding the changing regulations. Policy Implications Planning Commission Agenda –10/06/09 2 This application raises a number of important policy issues as the City looks to see its development industry recover from the economic downturn of the past few years. These include: 1. Should the City consider compromises to its residential development goals to improve the development climate at this time? 2. If so, how extensive should those compromises be? 3. Are there specific areas of regulations that are more flexible than others? Development Goals With regard to the first question, the City’s recently adopted Comprehensive Plan re-enforces the City’s long-standing objective of focusing on step-up housing opportunities. Although a long-standing goal, the City has historically struggled to realize this sector of its housing supply. The strongest housing market has been for more moderately-priced housing, resulting in a push by the development community toward more affordable housing products. Development interests have indicated, not surprisingly, that the economy has made it that much more difficult to market high-priced housing. The applicant in this case is suggesting that in order to be able to sell any property, it is necessary to be able to sell a less expensive home, in addition to deeply discounting the lot price. At issue in this regard is whether the City wishes to moderate its development standards, even for a temporary or limited period, to assist in the construction of housing in this project, and more broadly, for the housing market City-wide. Apart from this policy direction, there would appear to be no other compelling rationale to make a change in this case. The original R-1A PUD for this site was based upon its location and views – surrounding land use and zoning was in place. While the applicant is concerned that those factors play into his ability to market his property, those factors have not changed. What has changed are the economic conditions affecting the housing market generally. Is the City interested in modifying its development standards in an attempt to address economic conditions? Extent of Reductions in Standards The second question relates to the extent to which the City might alter its development standards. As noted above, the applicant has identified certain parcels for which changes would be preferred, but has not itemized actual changes. Based on discussions with staff, the applicant has suggested that the ability to construct split-entry housing styles would reduce the cost of construction. Planning Commission Agenda –10/06/09 3 In the past, the City has structured a number of its regulations to discourage, if not prohibit, split-entry housing styles. In part, this approach was directly related to its end goal – increasing the cost (that is, value) of housing construction. There are a number of potential accommodations that the City could consider. We are listing this for discussion only. If the City is interested in making adjustments, these are at least some of the areas that may impact housing cost. a. Allow split-entry housing styles b. Allow housing styles with a garage-forward layout c. Allow smaller footprints and/or setbacks (such as the R-2A District) d. Require less finished space at time of occupancy e. Identify specific lots within identified developments for lowered standards f. Consider re-platting to more, smaller lots g. Consider modified/reduced architectural/building materials standards The issues related to split entry housing is discussed above – the ordinance does not specifically prohibit this style of housing, but in the R-1A, the basic foundation size requirement is 1,400 square feet, resulting in a two-level structure of 2,800 square feet. The City has modified this requirement by PUD to 1,200 square feet in some areas, but even at this size, there are few split entry houses likely to be built. The R-1 District has only a requirement that the initial home construction contains at least 1,050 square feet of finished floor space, and the potential for a minimum of 2,000 square feet of finishable space. With regard to the garage designs, there are a number of differences between the R-1 and R-1A Districts. In the R-1A, the garage must be at least 700 square feet in area, and the garage doors may constitute no more than 40% of the façade of the home facing the street. Moreover, the garage may project no more than five feet to the street in front of the front building wall of the living space. This latter requirement is designed to prohibit the “garage-forward” designs that dominate many modestly priced single family neighborhoods. The R-1 District requires garages of at least 480 square feet, with no limitations for frontage or projection. The other difference between the R-1A and R-1 district relates to building materials. The R-1A District requires at least 20% of the façade to be covered with brick or stone. The R-1 District permits this percentage to be 15%. Both districts allow a reduction by 10% if the structure uses real wood or stucco as the primary siding material. As a separate consideration, the applicant could consider replatting portions of the plat to accommodate smaller lots, yielding additional lots in the same space. Planning Commission Agenda –10/06/09 4 However, for projects such as Hillside Farms, the streets and utilities are already in place, making new utility connections necessary for additional lots expensive and impractical, thus defeating the original purpose. Hillside Farms PUD Amendment As noted, the applicant is seeking an amendment to the Hillside Farms PUD agreement to allow the application of R-1 District standards for 3 parcels along Fenning Avenue. The purpose of Planned Unit Development is to permit a developer to have flexibility of design in order that by permitting flexibility from strict zoning standards, the applicant can develop a project that exceeds the standards of the City overall. To amend the PUD, the City would want to be able to make a similar finding. The applicant has suggested that the rationale for reducing development standards in the Hillside Farms project is due, essentially, to economic conditions, and that without accommodation, it would not be possible to expect any new home construction for at least the short term. The applicant also suggests that the three lots in question are at a particularly steep disadvantage, in that their proximity to Fenning Avenue results in a degraded residential environment. While PUD approvals are highly individualized, this application raises a unique policy question for the City. Despite the City’s long-standing policy of promoting step-up residential development at the expense of more modest cost housing, the recent economic conditions have slowed virtually all development activity to a halt. This application forces the question – will the City consider modifying its standards to help re-start new housing construction? Options The City has a number of options. These are summarized as follows: a. Deny the application, and hold to its policy of higher-end housing. b. Consider the application, but seek a modification to retain certain elements that are more important than others. This option could take many forms, such as: Allow smaller homes, but retain architectural requirements for building materials, garage design, or other features. Retain larger footprint homes, but permit lesser finished square footage to permit lower initial costs. Consider other options to permit changes in the Hillside Farms 4th Addition. c. Approve the application as proposed. Planning Commission Agenda –10/06/09 5 Any of these options should be accompanied by findings of fact that support the decision. For the approval options, the Planning Commission may focus o n the importance of housing development for the growth of the City and support of its business community, as well as the importance to help counteract pressures that have led to the decline of new housing growth, and the fact that the City anticipates this to be a short-term need that is supported by the unique location of the lots in question. For the denial option, the City may rely on its stated Comprehensive Plan policies for housing development value. ALTERNATIVE ACTIONS Decision 1: Consideration of amended PUD for Hillside Farms 4th Addition, Lots 5-7, Block 1. 1. Motion to recommend approval of the PUD amendment permitting R-1 standards on these three lots, based on a finding to be made by the Planning Commission 2. Motion to recommend approval of a PUD amendment modified from the request of the applicant as directed by the Planning Commission. 3. Motion to recommend denial of the PUD amendment, based on a finding that the housing policy of the City’s Comprehensive Plan is to retain standards that encourage higher-end, step up housing, and to minimize the amount entry-level housing in the community. STAFF RECOMMENDATION This request raises a pure policy issue for the City’s consideration – whether to depart from the City’s housing goals. As a policy issue, staff does not have a specific recommendation pro or con. In this case, staff believes that there may be ways to assist the development community without abandoning its longer term objectives. Suggestions that include retaining larger housing footprints but easing the requirements for initial finished space may be part of this answer. Because the need is economic in nature, each such request will require individualized negotiations with developers that come with similar applications. In any case, the City should not abandon its housing policy lightly. The primary element to recommend this application Planning Commission Agenda –10/06/09 6 would be the limited scope of the request, relating as it does to just 3 parcels in an existing subdivision. SUPPORTING DATA A. Application Request B. Comprehensive Plan Excerpt C. Aerial Image D. Public Comment Letter E. R-1 Development Standards F. R-1A Development Standards G. Chapter 3 - General Provisions H. Previous Amendment Information t (reserved for recording information) AMENDMENT TO DEVELOPMENT CONTRACT AND PLANNED UNIT DEVELOPMENT (Developer Installed Improvements) HILLSIDE FARM AGREEMENT dated 5/ (p , 2004, by and between the CITY OF MONTICELLO, a Minnesota municipal corporation ("City"), and Tyiroh0rVejWn-rnk, ►hG a Minnesota Corporation (the "Developer") 1. BACKGROUND. The City and the Developer have previously entered into that certain Development Contract and Planned Unit Development Agreement for Hillside Farm dated �Q - 2.2-' 2.003 (the "Agreement") in connection with the platting of certain land situated in the City of Monticello, County of Wright, State of Minnesota, legally described as set forth in the Plat of Hillside Farm, (hereinafter the "subject property"). 2. AMENDMENT. Except as specifically modified by this Agreement, the Development Contract and Planned Unit Development Agreement shall remain in full force and effect. 3. PARAGRAPH 11, "DESIGN STANDARDS." Paragraph 1 1 is hereby amended in its entirety to read as follows: The applicable Planned Unit Development Zoning District Regulations that apply are equal to those set forth in the R-1 A Zoning District Regulations, except as modified herein. The following alternate standards shall apply: • Two-story and modified two-story residential dwellings must meet provide: o A minimum finished first floor size of 1 100 square feet; o A minimum of 2200 square feet finished area above grade; and, o Full basements. All other home design types must comply with the R-1 A Regulations. • Lot area requirements may be as set forth in the R-1 Zoning District Regulations. • Lot setback requirements may be as set forth in the R-1 Zoning District Regulations. • Lot width requirements may be as set forth in the R-1 Zoning District Regulations. 4. AMENDED PLANNED UNIT DEVELOPMENT APPROVAL. The City hereby grants approval of this Amended Planned Unit Development Agreement subject to compliance with the terms and conditions of this Agreement. 5. MISCELLANEOUS. A. Third parties shall have no recourse against the City under this Agreement. B. Breach of the terms of this Agreement by the Developer shall be grounds for denial of building permits, including lots sold to third parties, to the extent that the breach affects the area within which the building permits are requested. C. If any portion, section, subsection, sentence, clause, paragraph, or phrase of this Agreement is for any reason held invalid, such decision shall not affect the validity of the remaining portion of this Agreement. D. The action or inaction of any party shall not constitute a waiver or amendment to the provisions of this Agreement. To be binding, amendments or waivers shall be in writing, signed by the parties and approved by written resolution of the City Council. Any party's failure to promptly take legal action to enforce this Agreement shall not be a waiver or release. 106875 v.8 0/06/04 E. This Agreement shall run with the land and may be recorded against the title to the property. The Developer covenants with the City, its successors and assigns, that the Developer is well seized in fee title of the property and/or has obtained consents to this Contract, in the form attached hereto, from all parties who have an interest in the property; that there are no unrecorded interests in the property. The Developer will indemnify and hold the City harmless for any breach of the foregoing covenants. Upon written request from the Developer, the City shall issue a recordable document which certifies the extent to which the Developer is in compliance with this Contract. F. This Agreement shall be binding upon the parties, their heirs, successors, or assigns, as the case may be. (SEAL) STATE OF MINNESOTA ( ss. COUNTY OF WRIGHT CITY OF MONTICELLO BY: zi�— Bruce Thi en, Mayor AN��/ Rick Wolfsteller, 1ty Administrator DEVELOPER: Its The foregoing instrument was acknowledged before me this 12th day of July 2004, by Bruce Thielen and by Rick Wolfsteller, the Mayor and City Administrator of the City of Monticello, a Minnesota municipal corporation, on behalf of the corporation and pursuant to the authority granted by its City Council. NOTARY PUBLIC STATE OF MINNESOTA ) ( ss. tr°T s B;A DAWN M. GROSSINGER ®, f NOTARY PUBLIC - MINNESOTA 106875 v.8 05/06/04 MY COMM. EXP. 01131/2005 =' MINUTES MONTIC1ELlLO PLANNING COMMISSION Tuesday, May 6th, 2008 Commissioners: Rod Dragsten, Charlotte Gabler, Lloyd Hilgart, William Spartz, and Barry Voight Council Liaison: Susie Wojchouski Staff: Angela Schumann, Gary Anderson, Steve Grittman — NAC Call to order. Chairman Dragsten called the meeting to order and noted a full quorum of the Commission. 2. Consideration to approve the minutes of April 1 st, 2008. Commissioner Voight noted the misspelling of his name on page 3 of the minutes. MOTION BY COMMISSIONER HILGART TO APPROVE THE MINUTES OF APRIL 1, 2008. MOTION SECONDED BY COMMISSIONER SPARTZ. MOTION CARRIED, 5-0. , 3. Consideration of adding items to the agenda. Commissioner Gabler requested update on Warnert and Broadway Market proj ects. Chairman Dragsten asked for a legislative update on Group Homes. 4. Citizen Comments. NONE. Public Hearing - Consideration of a request for Amendment to Conditional Use Permit for Planned Unit Development as related to section 3-2fB1 of the Monticello Zoning Ordinance regulating R-lA Design Standards. Applicant: Keyland Homes. Schumann presented the staff report, stating that in May of 2002, the City of Monticello approved a fmal plat and rezoning for the Hillside Farm project. Planning Commission Minutes — 05/06/08 Hillside Farm is a Planned Unit Development project consisting of 84 single- family lots. The plat is being developed in four phases. Schumann stated that the PUD approval allowed the plat to be developed with R-1 lot sizes, but application of R -IA design standards. Under the original approval, the developer did not ask for any variation or relaxation of the R-lA design standards. Schumann noted that since that original approval, the developer has requested one amendment to the PUD. The amendment applied to the entire development and relaxed the foundation square footage requirements for the homes. That amendment was approved by the City. Schumann explained that the current application for amendment is being requested by the builder and owner of all lots within only the first and second phases of the Hillside Farm development. Key Land Homes is requesting that the City consider relaxing only one specific provision of the R-lA standards. Schumann stated that the provision reads that no portion of any garage space may be more than five feet closer to the street than the front building line of the principal single-family use. Schumann indicated that the house -forward ordinance provision was designed to strengthen the step-up housing product, by creating a more attractive streetscape with the house being the more prominent feature. The applicant is requesting that this section of the R -IA standards be waived for the remaining six (6) vacant lots in the 1St and 2nd Additions. Schumann stated that of the 28 homes already constructed, only six (6) meet the ordinance standard above. She indicated that Hillside Farm was the first development to which the R -1A Zoning Standards applied, which may explain the lack of proper application of design standards. Schumann noted that the Planning Commission is asked to consider this amendment as it applies only the 1St and 2nd Additions. Schumann commented that staff is recommending approval of the amendment as 28 of 34 homes are already constructed, of which only 6 comply with the ordinance. She also stated that it is staff's belief that the homes already built in Hillside Farm meet the intent of the R-1 A ordinance, which is to create step-up housing. Given the applicant's compliance with other R-1 A code requirements (including foundation square footage, finished square footage and fagade improvements) staff believes that allowing the balance of the homes to be constructed consistent with the initial 28 would not significantly impair the intent of the Hillside Farm PUD. Hilgart inquired what the required roof pitch was for Hillside Farm. Schumann responded hat she believed it to be 6:12. 2 Planning Commission Minutes — 05/06/08 Spartz inquired whether the Commission had the ability to open up the entire development for review as a result of this request for amendment. Planner Grittman answered that the Commission did have that ability. Gabler inquired whether the developer has covenants and whether they cover the standards. Schumann stated that the development agreement covers R-lA and is recorded at County, but that she can't say whether the developer instituted private covenants. Chairman Dragsten asked how this oversight happened and if there are processes in place to take care of this in the future. Grittman noted Hillside Farm is technically zoned R-1. However, the PUD applied the R-lA design standards. Schumann referred to the Planning Commission's recent discussion on PUD amendments and stated that PUD actually requires final architectural drawings for all buildings within a PUD. She commented that at the time Hillside Farm came through, that application requirement was not strictly followed. Dragsten stated even in the case that it is provided, who follows up on conformance. Schumann stated that it is now the process that the approved plans are given to the Building Department in order to compare the approved PUD to building permit. Dragsten asked how many developments may be in a similar situation. Schumann replied that there are probably a handful. Dragsten asked if everything in place to now prevent this. Schumann stated that she believes so. Girttman stated that the application standards are held to a much more rigorous process and the Building Department is now built into the planning review process. Dragsten asked if all other design standards are being followed in Hillside Farm. Anderson noted that the Building Department was short-staffed at the time development was at its peak and the department was at that time, just trying to keep up with building end. Information now flows better given the current system of review and communication. Dragsten asked if everything is up to date in terms of reviewing requirements. Anderson stated that the Building Department now very actively looks through those standards. Spartz asked if the request for waiver is that to allow Keyland to continue moving beyond 5', and if they are requesting something in particular in terms of number beyond 5'. 3 Planning Commission Minutes — 05/06/08 Schumann stated that the amendment to PUD applies the waiver to balance of 6 lots. The applicant has not requested a specific amount beyond the 5'. It is at the Commission's discretion. Schumann restated that intent of the district to create a more attractive streetscape. Spartz asked if it is known what the farthest forward garage measurement is. Anderson suggested perhaps 16-20 feet. Applicant stated that it is most likely 20'. Wojchouski asked Anderson to clarify that the square footage was on main floor and not inclusive of second story. Anderson responded that he wasn't involved in the initial part of the process. His understanding was that the intent was to get larger two -stories. Anderson described other plans and what might be needed to achieve the required square footages. Schumann noted that the ordinance requirements for R-lA are all designed to work together. If applied together, it is most likely that R -IA developments wouldn't have had any splits as most splits wouldn't meet the 5' rule. However, when you miss one, you can end up with all of the variations. She noted the previously approved amendment where square footage would correspond to the style. Voight commented that split -entry styles don't leave much ability to expand in terms of square footage, where the two story provides that ability. He noted that there is then a large difference in the available amount of square footage that is possible to finish. Anderson noted that the market influences the type of house that is built, as well. Hilgart asked when this was caught by staff. Schumann stated that she was unsure of the exact date, but it was most likely six months ago. Hilgart asked if any that were any homes permitted after the catch that don't meet the 5' rule. Schumann stated that she did not believe so. Chairman Dragsten opened the public hearing. Jason Penaz, 5549 Badger, addressed the Commission, stating that he is concerned about the split entry homes that went in recently. He commented that he was the first homeowner in the development and at that times, houses were promised to be two -stories and large ramblers. Nothing was said about splits. Ron Long, the realtor was asked about whether any splits would be allowed. He indicated that was not the type of development they were seeking to build. He stated that most homeowners in the development are concerned about this same El Planning Commission Minutes — 05/06/08 issue. Penaz noted that the prices and finished square footage between two stories and splits are very different. Penaz recommended putting put the cap on the remaining 6 lots such that splits not be allowed. He noted a similar situation with River Forest, noting that when times are tough, it seems that builder make the switch to build smaller homes. Spartz asked if there Penaz sees a problem with garages being off -set. Penaz stated that the issue is more about the value and style of homes. Penaz reaffirmed that the style should be the same as what was initiated. Dragsten stated that the standards are the same for the development, they haven't changed. Originally, there was the ability to have some splits, but the developer's their initial marketing was that they didn't want it. Hilgart asked Penaz if he has covenant documents. Penaz stated that he did not believe there were covenants. Voight asked Schumann were the six lots are within the development. Schumann stated that the applicant can point them out on the plat map. Pat Couette, 5866 Badger Street, stated to the Commission that he believes that the two splits are empty. Terry Long, representing Keyland Homes made himself available for questions. Long stated that both split homes are occupied. Voight asked Long to identify the remaining six lots. Long stated that there is one on Badger, the rest are on Elk Avenue. Long stated that in regard to Commissioner Hilgart's question on roof pitch, he believed that the front facing roof pitches are to be 8:12, the rest are 6:12. Hilgart asked if Long is aware of any covenants. Long stated that there are none to his knowledge; none have been provided by the developer. Long stated that in other developments, the developer has to sign off on the permits. Long indicated that there was no intent to put splits on Elk Avenue. It was a marketing decision to put splits against the trees. Long apologized for missing the 5' ordinance requirement, commenting that Keyland was careful to meet the other requirements. Keyland as a builder is trying to make the development work. It wasn't the intent to change the design and quality of homes. He noted that the splits in Hillside are larger than the basic requirements. Long explained that there are remaining unsold homes; one meets the criteria and one does not. Spartz stated that he agrees with Dragsten that it is a nice development. He inquired that if this amendment were to move forward, is there a measurement on 5 Planning Commission Minutes — 05/06/08 the garage forward Keyland would like to seek. Long explained that some of the largest homes are at a 12' setback on the garage. Dragsten asked if 12' is something Keyland can work with. Long responded that Keyland can work with whatever the City can approve. Long explained that application of the 5' or less rule does create a larger, more expensive home. Spartz commented that he doesn't know that they' threshold has as much to do with value of the neighborhood as the entire style and not allowing any split entry homes. Anderson noted that Carlisle Village has a requirement for developer review of building permit. In that case, the developer signed plans that do not meet the criteria. So in some cases, that check and balance system may not work. David Brown, 5926 Badger Street, explained that he was also told by the realtor there would be no splits. He stated that he confused regarding the design standards that apply. He indicated that he thought he was moving into a high-end neighborhood. Dragsten stated that he wanted to make clear that when originally approved, there was the ability to put in splits. The developer had indicated a marketing direction, but they still had that ability. Hearing no further comments, Chairman Dragsten closed the public hearing. Hilgart stated that he doesn't believe the garage forward has that much to with the quality of the house as the size. He stated that he was disappointed with the splits that were built as believes the roof pitch requirement wasn't met and that they may not meet the other design standards. He stated that he is willing to flex on the garage forward, but recommended that no splits be allowed. Spartz agreed. Gabler stated that the Commission is just here to talk about 6 remaining lots. Dragsten stated that the Commission could make amendments to carry through to the 1St and 2nd Additions. Dragsten confirmed that the only way to address lots in the 3rd and 4th is to open another application. Schumann confirmed that the developer who owns the lots in 3rd and 4th would need to open the balance up for discussion. The Commissioners had a brief discussion on flexibilities to design that might be allowed with a future amendment. MOTION BY COMMISSIONER SPARTZ TO RECOMMEND APPROVAL OF THE AMENDMENT TO PLANNED UNIT DEVELOPMENT FOR HILLSIDE FARM 1 ST AND 2ND ADDITION, BASED ON A FINDING BASED ON A G Planning Commission Minutes — 05/06/08 FINDING THAT THE APPLICANTS HAVE PROVIDED ADEQUATE EVIDENCE THAT THE CHANGE IS CONSISTENT WITH THE OBJECTIVES OF THE R-lA ZONING, SUBJECT TO THE FOLLOWING CONDITIONS: • NO SPLIT ENTRY HOMES BE ALLOWED ON THE BALANCE OF THE LOTS OWNED BY THE APPLICANT. • THE GARAGE SHALL NOT EXTEND MORE THAN 12' BEYOND THE FONT BUILDING LINE OF THE HOME ITSELF FOR THE BALANCE OF THE LOTS OWNED BY THE APPLICANT. MOTION SECONDED BY COMMISSIONER HILGART. MOTION CARRIED, 5-0. 6. Public Hearing_ Consideration of a request for Conditional Use Permit for Outdoor Sales as related to an Outdoor Volleyball Facility in a B-4 (Regional Business) District. Planner Grittman provided the staff report, illustrating the location of the proposed area of the volleyball court, which is in the proposed expansion area for the bowling facility's banquet space. The applicant is seeking a CUP for outdoor sales as related to a request for volleyball courts with both evening and daytime hour volleyball leagues. The application request would allow use until 11:00 PM. Grittman stated that the ordinance regulates specific requirements for outdoor sales, which he reviewed. The use is required to be fenced and screened from view of abutting residential properties, which there are in this case. Lighting is required to be shielded from public view and from neighboring residential. Sales areas must be surfaced or grassed to control dust. Finally, Grittman stated that the procedural requirements of the CUP process must be met. Grittman explained that noise and lighting are two of the major issues in terms of intrusion to neighboring properties. In this case, the location of courts would be screened primarily by the building itself. Residences are to the north and northwest of the site. The applicant is proposing to light the court with wall pack lighting, not free-standing light fixtures. Grittman indicated that the staff report recommends that if this facility finds that they do not have adequate lighting, they, would need to come back for amendment. In that case, staff would recommend shorter hours of operation as it will be difficult to screen the light from residential properties. Grittman stated that the applicant is proposing to fence in the play area with a black coated chain link fence. In a staff meeting with the applicant, Grittman noted that the applicant had also indicated that they may potentially also use netting to protect loose balls. They are also proposing to fence in the grass area for lawn games. 7 Planning Commission Agenda –10/6/09 1 6. Public Hearing: Consideration of a request for an amendment to Monticello Zoning Ordinance relating to parking and storage on residential property. Applicant: City of Monticello. (NAC) REFERENCE AND BACKGROUND The Planning Commission reviewed this item during its September meeting and was prepared to take action to recommend adoption of the amendment. However, the public hearing had not yet been called. The public hearing on the item has been published for October, should Commission choose to act. Some minor clarifications have also been made to the ordinance. The City has been working to clarify its allowances for the keeping of motor vehicles on residential property. This discussion has focused on passenger automobiles and light trucks, but has included attention to the keeping of recreational vehicles and equipment (such as trailers), as well as some limited discussion of the keeping of commercial vehicles. There are a number of locations in the current ordinance where parking and storage standards are located, and those standards have been amended over the years, raising some concerns about both ease of use and comprehensive coverage. The City Council and Planning Commission conducted a workshop meeting to develop a consistent view on how to approach these vehicles, and where on residential lots they believed best provided for reasonable storage with minimal negative impacts to neighbors. At this point in the process, a final consensus on commercial vehicles has not been determined. In the proposed ordinance language, we have created a category called “Small commercial vehicles” and where standards for such vehicles would be located, we have inserted the text “Reserved”. In this way, the City can adopt regulations addressing passenger vehicles and recreational equipment, then make a minor adjustment when commercial vehicle regulations are agreed to. As such, we have created preliminary definitions that track some State licensing regulations for commercial vehicles. Some of those regulations are based on weight, which is a common municipal standard, but which the Wright County Sheriff’s office has expressed reluctance to enforce on private property (enforcement on public roadways avoids some of the concerns over showing “probable cause” when entering private property). The regulations that are proposed in this regard are primarily included as placeholders to facilitate final amendments – it is acknowledged that changes are likely when commercial vehicle parking regulations are addressed as a second step in this project. The changes to the existing code language are proposed below, in a strikeout – underline format to permit easier review and analysis of the proposal. Planning Commission Agenda –10/6/09 2 2-2 DEFINITIONS [PB1] PARKING: The act of keeping a passenger vehicle as defined herein on an approved parking space, properly surfaced, for a temporary period of time. [PC1] PAVED: A parking space or storage space which is surfaced with only the following materials: Asphalt, concrete, and natural or man-made paving stones such as brick, granite, or concrete pavers, provided such pavers have a flat surface area of no less than nine square inches. [SQ] SURFACED: A parking space or storage space which is paved, or surfaced with crushed rock, such as Class V limestone, crushed or decomposed granite, “con-bit”, or landscaping rock of adequate durability to support the load parked or stored thereon. [UA1] UNSURFACED: A storage space which is covered by vegetation, such as grass or other landscaped cover, and which is mowed or trimmed to meet the City’s weed control regulations. Unsurfaced space may not include bare ground which may be subject to erosion, tracking of mud onto the roadway, or drainage of silt into a public drainage easement or waterway. [VC] VEHICLE, PASSENGER: A vehicle capable of moving under its own power which is licensed and operable for use on public roadways, and shall include the following vehicles: Passenger automobiles, pick-up trucks and sport- utility vehicles of less than 9,000 pounds gross vehicle weight, pick-up trucks and sport-utility vehicles of between 9,000 pounds and 13,000 pounds with no visible commercial messages, commuter vans of a capacity up to 16 persons, and motorcycles. [VD] VEHICLE, RECREATIONAL: (1) A vehicle that is used primarily for recreational or vacation purposes, and which is licensed and operable for use on public roadways, whether self-propelled, carried on, or towed behind a self-propelled vehicle. (2) Operable recreational equipment that is not licensed for used on the public roadway, but used off-road, such as all-terrain vehicles, boats, off-road motorcycles, race vehicles, snowmobiles, or similar equipment. Such equipment shall be properly licensed if the State of Minnesota provides for such licensing. (3) Licensed, operable trailers which may be used to tow recreational equipment, whether such trailers are loaded or unloaded, including utility trailers. Where a trailer is loaded with recreational equipment, such trailer and equipment shall be considered to be one (1) piece of equipment for the purposes of this section [VE] VEHICLE, LARGE COMMERCIAL: A vehicle used for commercial purposes which is a semi-tractor and/or semi-trailer, dump truck, or any other Planning Commission Agenda –10/6/09 3 commercial vehicle that does not qualify under the definition of a “Small Commercial Vehicle”. [VF] VEHICLE, SMALL COMMERCIAL: A vehicle used primarily for commercial purposes, including pick-up trucks and sport-utility vehicles larger than 9,000 pounds gross vehicle weight which display a commercial business message, and all other commercial vans or trucks, regardless of commercial message which are no greater than any of the following dimensions: 22 feet in length, 8 feet in height, and 8.5 feet in width. [VG] VEHICLE STORAGE: The act of keeping a recreational or commercial vehicle as defined herein on a parcel in an eligible storage location for an extended period of time without regular use, and with proper surfacing or maintenance of the groundcover as required. [YB] YARD, FRONT: A yard extending across the front of the lot between the side lot lines and lying between the front line of the lot and the nearest line of the building. An open space on a lot lying between the front line of the principal building and the front lot line. The front yard shall include space adjacent to the side lot line which lies in front of the front building line closest to the side lot line in question. When, due to unique characteristics of a lot or building, a particular open space may be considered to be either front yard or side yard, the open space in question shall by default be considered to be a portion of the front yard. [YC] YARD, REAR: A yard extending across the full width of the lot and lying between the rear line of the lot and the nearest line of the building. An open space on a lot lying between the rear line of the principal building and the rear lot line. The rear yard shall include space adjacent to the side lot line which lies in back of the rear building line closest to the side lot line in question. When, due to unique characteristics of a lot or building, a particular open space may be considered to be either rear yard or side yard, the open space in question shall by default be considered to be a portion of the rear yard. [YD] YARD, SIDE: A yard between the side line of the lot and the nearest line of the building and extending from the front line of the lot to the rear yard. An open space on a lot lying between the side lot line and the closest side building wall, except that where space may be considered to either side yard an either front or rear yard, it shall by default be considered to be classified as front or rear, as applicable. Planning Commission Agenda –10/6/09 4 3-2 GENERAL BUILDING AND PERFORMANCE REQUIREMENTS [M] REFUSE: Please refer to City Code, Title , Chapter 3, - Public Nuisance. [N] EXTERIOR STORAGE: All materials and equipment expect as provided for in Chapters 5 through 19 of this ordinance shall be stored within a building or fully screened so as not to be visible from adjoining properties except for the following: 2. Recreational equipment and vehicles, subject to the parking and storage regulations in Section 3-5 of this ordinance. 4. Off-street parking of passenger vehicles and trucks not exceeding a gross capacity of nine thousand (9,000) pounds small commercial vehicles in residential areas, unless otherwise required to be screened according to Section 3-5 of this ordinance. 3-5 OFF STREET PARKING REQUIREMENTS [D] GENERAL PROVISIONS 7. Off-street parking facilities accessory to residential use may be utilized solely for the parking of licensed and operable passenger automobiles, no more than one (1) truck not to exceed gross capacity of nine thousand (9,000) pounds, and recreational vehicle and equipment. Not more than one recreational vehicle or trailer may be parked in a residential driveway at one time. Any additional recreational vehicles or trailers must be parked behind the front building line of the principal structure. For purposes of this ordinance, recreational vehicles shall include snowmobiles, ATV’s, campers, trailers, motorhomes, boats, and the like. Under no circumstances shall required parking facilities accessory to residential structures be used for the storage of commercial vehicles or equipment or for the parking of automobiles belonging to the employees, owners, tenants, or customers of business or manufacturing establishments. 7. Parking and/or storage of passenger vehicles, recreational vehicles and equipment, and small commercial vehicles shall conform to the requirements of Figure 3-5-1 and Figure 3-5-2. Under no circumstances shall large commercial vehicles be parked or stored in residential zoning districts, or on property that is used for residential purposes. Planning Commission Agenda –10/6/09 5 Planning Commission Agenda –10/6/09 6 Figure 3-5-1: Diagram Area Key Passenger Vehicles Recreational Vehicles Small Commercial Vehicles Other Notes Driveway leading directly into a garage within the front yard of a lot. A Any number; Paved One such vehicle; Paved Reserved Parking space adjacent to the driveway within the front yard of a lot. B One vehicle; Paved One such vehicle, if it is the only such vehicle within the front yard Surfaced Reserved Other portions of the front yard C No No No Side yard, adjacent to garage side of structure D Yes, within a space consisting of the 15 feet adjacent to the building. Surfaced Yes within a space consisting of the 15 feet adjacent to the building. Unsurfaced Reserved Must maintain minimum 3 foot setback to side lot line in all cases. Side yard more than 15 feet from garage E No No No Side yard on opposite side of house from garage F No No No Side yard on corner lot facing a public street G Yes, within a space consisting of the 15 feet adjacent to the building. Surfaced Yes within a space consisting of the 15 feet adjacent to the building. Unsurfaced Reserved Must maintain minimum 3 foot setback to side lot line in all cases. This space may encroach to within 5 feet of the right of way, provided screening is included Rear yard H No Yes Unsurfaced Reserved No current limit to number of such vehicles – must maintain a 3 foot setback to lot line Planning Commission Agenda –10/6/09 7 Figure 3-5-2 (not to scale): Planning Commission Agenda –10/6/09 8 9. (k) SURFACING: All areas intended to be utilized for parking of passenger vehicles and driveways shall be surfaced with concrete, bituminous, brick, concrete pavers, or masonry pavers. Beyond the front building line of a single family home, crushed granite, crushed limestone, con-bit and landscape rock may be utilized as surfacing materials. The City Engineer shall annually review the list of acceptable materials to be used for surfacing of any parking space as provided by this ordinance. Paving and surfacing requirements for parking and storage of passenger vehicles, recreational vehicles, and small commercial vehicles for single and two-family dwellings shall be as found in Figures 3-5-1 and 3-5-2. Except in the case of single family and two-family dwellings, driveways and stalls shall be surfaced with six (6) inch class five base and two (2)inch bituminous topping or concrete equivalent. Drainage plans shall be reviewed by the City Engineer and subject to his approval. City staff may waive this requirement it is determined that the drainage plans do not merit further study by the City Engineer. Staff determination in this regard shall be based on size of parking surface area, simplicity of design plan, and proximity/accessibility to existing storm sewer facilities. EXCEPTIONS: See D.9 (s) Stall Aisle and Driveway Design Conditional Use Permit. [F] LOCATION: All accessory off-street parking facilities required by this ordinance shall be located and restricted as follows: 3. For single family and two family dwellings, off-street parking on a paved driveway within fifteen (15) feet of any street surface shall be allowed as long as it does not block any public sidewalk or pathway. 4. For single family and two family dwellings, the part of a paved driveway within boulevard portion of the street right- of-way shall only be used for parking in a manner that does not block any public sidewalk or pathway. 5. SETBACK AREA: Except for single family and two-family dwellings, required accessory off-street parking shall not be provided in front yards or in side yards in the case of a corner lot in R-1, R-2, R-3, PZ, and B-1 Districts. For single and two-family dwellings, setback and location requirements shall be located as found in Figures 3-5-1 and 3-5-2. 6. In the case of single family, two-family, and townhouse dwellings, parking shall be prohibited in any portion of the Planning Commission Agenda –10/6/09 9 front yard except designated driveways leading directly into a garage or one (1) open surfaced paved space located on the side of a driveway away from the principal use. Said extra space shall be surfaced with concrete or bituminous material. For single family and two-family dwellings, parking shall be located as found in Figures 3-5-1 and 3-5-2. 7. In the case of single family dwellings, parking shall be prohibited in any portion of the rear yard. In the case where the only attached or detached garage on a property is located in the rear yard, parking may be allowed in designated driveways leading directly into a garage, or on one (1) open surfaced space located on the side of a driveway away from the principal use as shown in Figures 3-5-1 and 3-5-2. Said extra space shall be surfaced with concrete, brick, bituminous, concrete pavers, masonry pavers, crushed granite, crushed limestone, con-bit, or landscape rock as required by Figures 3- 5-1 and 3-5-2. 8. In the case of single family dwellings, parking in the side yard shall be allowed on a surfaced space only as shown in Figures 3-5-1 and 3-5-2. Said space shall be surfaced with concrete, bituminous, concrete paver, or masonry pavers. Beyond the front building line of a house, permitted surfacing materials shall also include crushed granite, crushed limestone, con-bit or landscape rock. These regulations summarize the discussion of the City Council and Planning Commission from the workshops and other subsequent meetings. As noted previously, the treatment and definition of small commercial vehicles, along with the threshold between small and large commercial vehicles, needs to finalized to complete this section of the ordinance. That exercise can be accomplished as a next step after the consideration of this ordinance. ALTERNATIVE ACTIONS Decision 1: Amendment of the Zoning Ordinance related to the requirements for location and surfacing of parking and storage of Passenger, Recreational, and certain Commercial vehicles. 1. Motion to recommend approval of the ordinance as proposed. 2. Motion to recommend denial of the ordinance as proposed. 3. Motion to table for further discussion and modification. Planning Commission Agenda –10/6/09 10 STAFF RECOMMENDATION Staff recommends adoption, with the understanding that further work is necessary to finalize the commercial vehicles portion of the material. MEMORANDUM TO: Angela Schumann FROM: Stephen Grittman DATE: October 2, 2009 RE: Monticello – Parking Ordinance Comments NAC FILE: 191.06 – 09.12 A question came up regarding the need for both clauses in the proposed parking ordinance identified as 3-5-2 [F] 3 and [F] 4. Subparagraph [F] 3 specifically allows parking on the paved driveway within 15 feet of the street. This clause came into being in response to a previous clause that prohibited parking within 15 feet of the curb, regardless of the setback from the property line. The suggestion was that residents should be able to park in their driveways as long as they were off of the street, regardless of the location of the property line. The new change here limits this allowance to single and two-family dwellings. Subparagraph [F] 4 takes a different approach, allowing parking in the “boulevard” portion of the right of way under the same conditions as [F] 3. For most cases, the allowance in [F] 3 will eclipse [F] 4 since most boulevard areas adjacent to residential property ranges between 10 and 15 feet in width. Conceivably, however, [F] 4 will come into play when there is a particularly wide boulevard. This condition exists on East River Street, where there is a wide right of way and the street is offset within the right of way to the south. In summary, the two clauses will almost always overlap, but there a few rare cases where they may have an impact. With regard to Subparagraph [F] 5, a question was raised about restricting front yard parking in the PZ Districts. Since the PZ Districts often have a substantial commercial component, and front yard parking is common, there is question whether the new language should delete the PZ Districts from this list. 2 From a practical standpoint, development in the PZM district has been almost exclusively through the use of Planned Unit Development, allowing for parking to occur as the site plan best accommodates it. The City has had little or no development under a PZR designation, so this issue has not been of concern. Moreover, the fate of the PZ Districts would be unclear, given the City’s current process of updating its zoning ordinance. Apart from the update, we would recommend that the language in the amendment is changed to specify that development in the PZR District is included in the front yard parking prohibition, while development in the PZM District is treated like other commercial zoning. This would be consistent with past practice. Angela Schumann From: DJ Hennessey Sent: Monday, October 05, 2009 3:30 PM To: Angela Schumann ubject: FW: Commercial Vehicle Parking Meeting Tonight Attachments: 124 Hillcrest Dr, 5-23-08.pdf; 124, 4-3-09 (1).JPG; 124, 4-3-09 (2).JPG; 124, 4-3-09 (3).jpg Angela, Here are some pictures to go with this. I have also attached a report from a WC Deputy on this house from May of 2008. From: Sent: Monday, October 05, 2009 12:06 PM To: Angela Schumann Cc: DJ Hennessey; Deb Ward; Gary Anderson; Jeff O'Neill Subject: Commercial Vehicle Parking Meeting Tonight I am writing to all of you in hopes that someone passes long the following letter to the city council tonight. I am unable to attend the public meeting because of work obligations. Dear Monticello City Council, Thank you for taking another look at how our city deals with commercial Vehicle Parking. I understand that in the past the council did not feel that it was a great enough issue to act upon, however, I would like to share my story with you in hopes that you consider taking action today. T live on Hillcrest Rd. For the most part it is a very quiet neighborhood. We are not close to a commercial .ane. Two years ago my neighbor started a trucking company out of his home. Soon he was parking his semi - truck in his driveway. Sometimes it's just the front. But often the entire truck and trailer is parked at his residence. It barely fits in the driveway. The truck exceeds the weight limit on our road. It has caused damage to the driveway and I hope that does not happed to our recently redone road. Diesel trucks have to run for long periods of time to warm up or to cool down. So, often when I awake at 5:30 in the morning, the first thing I hear is the humming of a diesel truck throughout my house. It sometimes makes the dishes in my hutch vibrate. It is an annoying noise. Diesel also stinks. Even on nice days I am forced to shut my windows because of the smell and the noise. My neighbor owns two trucks. Thankfully his driveway is only big enough for one at a time. To maintain the trucks he works on them at his house. So they often are just running in the driveway while he works on them. Sometimes he hoses off the engine and the oil and other chemicals run into the lawn or down into the sewer and into the creek behind our house. I am not just assuming that this happens, it's hard to mistake the rainbow colored steam that runs along the road. The trucks are also unpleasant to look at. Who wants to look out the window of their home and see a 18 wheeler? It's not that easy to just plant trees or put up a fence. I didn't intend on living in a neighborhood like this. I feel like my rights as a citizen are being ignored. I should be able to live in my house and not be hindered by my neighbor who is braking an ordinance that is not being enforced. have called, questioned, and e-mailed. I have been told that basically it is in violation of an ordinance, but that it is not being enforced at this time. I hate to be a nuisance, but maybe I have not been enough of one. Should I be calling and reporting my neighbor every day that this is happening? Maybe you would consider something more specific to semi -trucks and trailers. There is a huge difference -tween a semi truck and a company car. I hope that you take action on this tonight to help to ensure a high quality of living for all citizens. Thank you for your time and consideration. Do You Yahoo!? Tired of spam? Yahoo! Mail has the best spam protection around http://mail.vahoo.com DJ, Just to let you know that the semi tractor was parked at the residence 124 Hillcrest Dr again at 2100 on -05/23/08. Sgt. Anderson stated that we are to be letting the City know any time we see this Semi Tractor there. Also, what is the verdict for the Jerry's Towing Truck parked on Elm Street ... believe it's on the 400 block. The driver used to keep it on his driveway, but he's got about 4 other vehicles taking up that space. The truck was parked on the East side of Elm St. I'll be keeping my eyes out for other questionable vehicles, but those are ones I found tonight. Thanks Paul Fladung Wright County Sheriff's Office I Planning Commission Agenda —10/06/09 7. Consideration of a request for sketch plan review of a proposed Comprehensive Plan Amendment for a ground -floor residential development in the CCD. Applicant: Masters Fifth Avenue. (NAC) REFERENCE AND BACKGROUND The applicants are seeking concept review comments relating to a residential project on the property at Locust Street and Third Street — the second phase property of Landmark Square. The City has previously reviewed plans that proposed a commercial project on the site, including accommodation of a drive- through facility and restaurant space. The previous design incorporated a two story fagade. The site in question is approximately 33,000 square feet in area according to the applicants and fronts Locust and 3rd Streets. CCD District Requirements In the CCD, residential uses are permitted on upper floors of buildings. The allowed density for such uses is one unit per 3,000 square feet of lot area, plus a bonus density of 25% where the project includes covered parking. As such, up to 14 units could be accommodated on the site for upper -story residential. The CCD also allows ground floor residential uses at a maximum density of one unit per 9,000 square feet by Conditional Use Permit. The purpose of this language is to comply with the intent of the Downtown Revitalization Plan which encourages predominantly commercial uses on the ground floor. Under this standard, the applicants would be permitted an additional 3 units, for a maximum residential density on the site of 17 units. The applicants are seeking comment on an alternative arrangement that would allow 20 residential units in a two story "row -house" style building. The proposal is inconsistent with the current zoning regulations in two ways — total number of units (20 rather than 17) and the number of units on the ground floor (10 rather than 3). Land Use Policy In the Downtown -related portions of the Comprehensive Plan, commercial uses are intended to dominate, with residential uses generally occupying upper floors in the core areas, or properties that are more related to the surrounding residential districts. It is important to note that residential uses are allowed — indeed, a project of 17 units, designed to have no more than 3 units on the ground floor and with covered parking, would meet the specifics of the current zoning. Planning Commission Agenda —10/06/09 The property in question has commercial uses on three sides — Landmark Square to the north (including a full-service restaurant), commercial service/office space to the east, and commercial retail to the south. Land to the west has been residential, but is currently vacant, although a portion of that block is occupied by a gas/convenience facility on Broadway. Looking farther west, residential uses dominate on all of the blocks between Broadway and Fourth Street. The applicants suggest that the site in question is not a high-value commercial site due to its lack of exposure to either Broadway or the more commercial streets to the east (Walnut or Highway 25). Moreover, they believe that commercial uses will not be viable for the foreseeable future due to the number of superior commercial sites and the amount of vacant commercial space in existence. Processing the Proposal At this time, the applicant is seeking feedback on a sketch plan basis only. To accommodate the request, the City would eventually need to consider one of two alternative zoning actions: • Amendment of the CCD district language to accommodate residential projects of this density. ;ensity Rezoning of the site to a PUD District that would define the style and of the development. Amending the CCD language would affect the entire district, whereas rezoning to a PUD district would affect only this parcel. The PUD designation will also requires a more detailed review of site plan documents for the project (including plans for architecture, integration of the site with the Landmark Square I project, utility service, stormwater management, landscaping treatments, and other details of the development) and the creation of detailed zoning language specifically for this block. Procedurally, in either case the City would want to specify the terms and limits of residential use in the CCD. Considerations The initial questions for the Commission presented at the sketch plan stage are: (1) Whether the City is interested in altering its current comprehensive plan and/or zoning policies to accommodate more housing in the CCD; and (2) If so, whether that alteration should apply to the CCD generally, or this block only. 2 Planning Commission Agenda —10/06/09 If the City believes that a residential project is appropriate for this area, the follow-up issues relate to the general concept presented as part of the applicants' submission, including building design and site planning. As the plan is preliminary, more detail would be necessary in a subsequent review (as noted above) before the project would be ready for a final approval. Sketch Plan Reivew The sketch plan submitted by the applicants shows a 20 unit row house design, although the units appear to be "flats" —10 units on each floor rather than 20 side- by-side units. The site plan envisions a 40 space parking lot, including 13 spaces that would be housed in a covered garage in the northeast corner of the site. The garage is not shown in detail. A green space is also included in the interior of the site of around 3,000 square feet. Site issues to be resolved include coordination of the site access and drive aisle areas shared with Landmark Square I, use and improvement of the "Raingarden/Greenspace", and other details. Building issues to consider include the unit design, unit size (units appear to be only about 500 square feet in floor area), unit access (access to second story units appears to be via an exterior stairway and continuous deck), as well as the garage building. Building materials identified for the front of the building include mostly EIFS and cultured stone, with red tile roof at the corner. It should be noted that staff has also discussed with the applicant the possibility that a project could be designed that would allow for an immediate residential development, while at the same time reserving space for future ground floor commercial. Naturally, at this time, there are a number of unanswerable questions in that regard. How much immediate residential on the property would be necessary to make it pay the developers to hold a portion for future commercial? Is there adequate existing residential market to make more residential units feasible at this time? ALTERNATIVE ACTIONS The Commission is asked to give the applicant general direction regarding the concept so that they are able to weigh the costs and time involved in preparing a formal application with necessary documentation. At this point, the Commission can generally point the applicant in one of three directions: (1) Support further consideration of a Comprehensive Plan amendment and provide detailed comments regarding the proposed concept. Planning Commission Agenda —10/06/09 (2) Supporting further consideration of the creation of a PUD district specific to this block and provide detailed comments regarding the proposed concept (and process the proper permits to accommodate this development). (3) Indicate that there is no support for a comprehensive plan amendment or PUD district and request that the applicant prepare an alternative design that retains the required commercial, while accommodating the permitted residential component. As noted, the applicants could re -design their project to a 17 unit residential development to meet the existing regulations. STAFF RECOMMENDATION The application for a Comprehensive Plan amendment is a land use policy issue for the City to consider. The proposed change has the potential to alter what has been anticipated as a greater concentration of commercial uses in the downtown area, while allowing for residential on upper floors to increase the concentration of residents (and thus, potential business customers) in the district. This application asks the City to move away from this strategy on the subject parcel and allow for the development of a residential project that would create a defined edge between commercial and residential areas. The City should think about this question as it relates to this particular parcel, but if appropriate, the downtown area in general. Separate from the land use issue would be the project design. If residential uses in of this type are considered acceptable, the City must determine whether the concept shown by the applicants meets the expectations for residential uses in the community. Staff does have concerns related to a unit design that appears to be 500 square feet and accessible only from the exterior that could be mitigated by more detailed drawings. SUPPORTING DATA Sketch Site Plan 2. Building Elevation Drawing El GRANITE CITY REAL ESTATE August 10, 2009 Ms Angela Schumann, Community Development Director City of Monticello 505 Walnut Street, Suite I Monticello, Mn 55362 RE: Sketch Plan Review for property located at 213 3rd St West, Monticello, MN Dear Ms Schumami, Granite City Real Estate has been retained by Barry Fluth, the owner of the above described property, to research and recommend the highest and best use for the property. Our determination has resulted in this request for the City of Monticello to consider a high density residential use for the site. Our analysis team consisted of the following individuals: Mr. Jim Pflepsen, Broker and President of Granite City Real Estate (GCRE) Mr. Mike Bobick, CCIM, Broker at GCRE Ms Kate Hanson, Commercial Agent, GCRE Ms Jean Cushman, Commercial Agent, GCRE (and resident of Monticello). Over the past several years, Jim Pflepsen has been involved numerous real estate developments totaling in excess of 15 million dollars. Mike Bobick has practiced commercial real estate 10 years with involvement in over 17 million in commercial and residential development. Kate Hanson and Jean Cushman have contributed to the thought process on the use of this property based on their day-to-day involvement in the office and retail leasing and sales market in Central Minnesota. We understand Monticello's Comprehensive Plan calls for this property to be commercial/retail in nature, at least on street level. Our understanding is that the street level is targeted for service oriented commercial, general retailers or office -service type users. This would be consistent with the various businesses located along Broadway in Monticello. We would like to feel comfortable in recommending this type of additional development for Mr. Fluth's property but we have concluded otherwise. The reasoning is as follows: We are all aware of the near term oversupply of this property type in Monticello. This situation is the same for most Minnesota communities and for that matter, much of the country. If we thought this sector would conic roaring back in a few years we'd recommend that Mr. Fluth wait for the market to come back. But unfortunately it is not that simple. What we find in the retail market going forward is that either the retailer is a "big or junior box" offering low, low prices based on huge volume or the retailer is small and needs to locate very near the traffic generating "box" retailer. In both cases the retailer wants high traffic counts and to be located on, or be visible from major roadways. In terms of office and service oriented, the same traffic pattern requirements apply in anything "impulse buy" related. All too often to our liking, many uses in this category which are not dependent upon traffic and visibility become possible "work at home" scenarios. In short, communications like the internet and remote access virtual offices have changed the way business is done for many users. We have watched the City of St Cloud closely over the years with their struggle to fill storefronts in the downtown area. Even with the county and city government, the financial centers and all the professionals in downtown St Cloud, landlords still struggle trying to fill vacant storefronts. I have been involved as a commissioner on St Cloud's Historic Preservation Commission and have a passion for the historic charm of a core downtown area, thus from a personal standpoint, I am a proponent of downtown and strive to look for ways to make projects work in these areas. For these reasons we feel the highest and best use of the property is residential. We are however, sensitive to the Central Business District look and feel and in keeping with that look we propose a row house or brownstone appearance to a structure, with perhaps brick accents and a stucco finish. I have attached a site plan sketch and an elevation concept drawing for your review. What we envision: -An all residential, high density building -General market, residential apartment rentals, averaging 750 square feet per unit -Two or possibly three story building -One and two bedroom units -Garages and surface parking on site -Green space, rain garden, nicely landscaped courtyard feel on the interior of the site -Parapet style roofline, in keeping with the downtown urban look We are open to the City's input to make this a win for all involved. We believe that quality housing near the core downtown area will help keep it thriving. We ask that you consider our request to develop a 100% high density residential building at 213 P St West, Monticello. S'ncerel , ike B ick, CCIM, Broker Granite City Real Estate, LLC 58 1& Ave South Waite Park, MN 56387 320-253-0003 office 320-333-2692 cell 2 E LOCUST STREET A r r Planning Commission Agenda — 10/6/09 8. Community Development Director's Update. (AS) CITY ADMINISTRA TOR WINDSHIELD S UR VEY On September 17th I took the afternoon to review certain neighborhoods for the purpose of evaluating the effectiveness of our blight ordinance enforcement and to review impacts of individual home foreclosures on the appearance of neighborhoods. In my review I visited Klein Farms, Cardinal Hills, Hunter's Crossing, Carlisle Village, Wildwood Ridge, Meadow Oaks, Parkside and Parkside at the Meadows. I also visited a few neighborhoods in Big Lake to see if there were any differences. Following is a quick summary provided to Angela Schumann and Clint Herbst. Observations: The Monticello neighborhoods I visited generally look pretty good and better than I expected. o I expected to see more vacant homes. Those that I could discern as vacant had grass mowed relatively short and because they tended to be scattered, they did not seriously detract from the neighborhoods in which they were located. o I did not find any instances of grass gone extremely wild except for a couple of homes where weeds were growing around the foundation. I will be asking BD about these lots in Cardinal Hills. o All the new siding on the homes really served to "freshen -up" all the neighborhoods affected by the storm. o I was left with a sense of optimism that vacant homes are now being filled and that the neighborhoods seem to be stabilized. Problems or issues to address o I found one set of homes side by side at Klein Farms that were in rough shape, so I will be checking up on those with the Building Department. o I found inconsistencies in maintenance of boulevards and empty lots from one development to the next. ■ Hunter's Crossing — Boulevards were mowed adjacent to curb and sidewalk but vacant lot side lines were not cut back sufficiently. Carlisle Village — It was a mixed bag. Some areas were maintained and other section more mowing was definitely needed. Weeds were overgrowing sidewalks at numerous locations. If I was a homeowner in the area I would not be happy. This morning I met with Angela and Joel Jamnik and discussed this topic. Angela had been in contact with the bank that had taken over this development. At beginning of summer, they had established regular contract maintenance service. However, as of August 28th, Planning Commission Agenda — 10/6/09 this bank has now also gone under. As a result of the discussion we will be issuing a default notice to the new bank currently in control of the Carlisle Village site and hope to have the boulevard areas mowed by no later than Wednesday next week. We are also examining our options for other work that needs completion at Carlisle. Sunset Ponds — (Visited today) Same situation as Carlisle Village... default notice will be sent with mowing to be conducted early next week. Subsequent to this report, the boulevards at Sunset Ponds and Carlisle Village have been mowed. Staff will be requiring a more concerted effort by the Building Department to assist with managing boulevard weeds, as well as weeds at individual properties. • I then took a look at a few neighborhoods in Big Lake to see if our enforcement of Public Nuisance is better than Big Lake's. I visited the Shamrock Development on the south side and a development on the north side of Big Lake. General observations: o The number of vacant homes in each neighborhood seemed to pop up at the same rate as in Monti... relatively few and scattered. ■ In Big Lake, at properties with vacant homes, grass was longer. As compared to Monticello, these properties stuck out more in the neighborhoods in which they were located. ■ The vegetation in empty lots did not seem to be as wild and overgrown, however the soils in these areas was much more and than Hunter's crossing and Carlisle Village. o Although there was not a huge number, compared to Monti there seemed to be a higher rate of inhabited homes with significant upkeep/blight issues. This was an unscientific windshield survey that I felt I needed to conduct to get a feel for the effectiveness of our code enforcement etc. With building permits down and Building staff more involved in public nuisance enforcement. Could I tell if this investment is paying off by better protecting neighborhoods from blight etc.? General conclusion is that code enforcement seems to be making a difference in Monti neighborhoods I visited, but this difference is difficult to measure since I can't really tell what the neighborhoods would have looked like without it. We know Big Lake is not making the same level of investment in code enforcement and it shows as vacant home properties have longer grass, and there seemed to be a higher rate of junky properties. However, the neighborhoods in Big Lake overall seemed somewhat equal to Monticello due to the fact their problem properties were pretty well scattered. From what I observed, as a consumer, I would have more confidence living in Monticello than Big Lake if making an investment in a new home. 2 Planning Commission Agenda — 10/6/09 COMMUNITY DEVELOPER DIRECTOR UPDATES Utility Insert Flyers/River Street The City Council has made a decision on River Street. Please see the attached flyers, which provide an update on that item, as well as many others. These inserts, will be inserted into the October utility bills. Master 5th Avenue — Landmark Square II In June of 2009, the City Council granted a one year CUP extension to Masters 5th Avenue for their Landmark Square II project. The City Council conditioned the extension on all originally assigned conditions, as well as the re -grading, re -seeding and regular maintenance of the property. The staff report provided to the City Council and the corresponding minutes are provided for reference. The applicant is completing regular maintenance of the site at the request of City staff. However, the applicant has failed to comply with condition requiring re -grading and re- seeding of the site. On August 24th, 2009, the applicant was sent a letter requiring compliance with these conditions by September 14th. Up to and since that time, staff had a number of conversations with the applicant about how to properly meet Council's expectations. Community Development has asked City Engineer Bruce Westby to work with Mr. Fluth on the final grading of this site. If the work is not completed by the time of the October 12th Council agenda, Council will be asked to consider revocation of the CUP or to set new conditions. Kjellberg CUP This item was removed from the September 28th City Council agenda as the applicant has requested more time to prepare the revised landscape plan requested by the Planning Commission. It is expected that the item will be considered on the October 26th, 2009 agenda. Cargill Volunteer Fair The City of Monticello provided volunteer opportunities during the Cargill Volunteer Fair on October 1St. Each year, Cargill employees are asked to complete a certain number of volunteer hours - the Volunteer Fair is one way Cargill provides volunteer information to their employees. This was a great chance for the City to provide information to Cargill on those projects or programs for which volunteers are needed including such events as Walk `n Roll and National Night Out, and programs like Adopt -a -Park and the annual river clean-up. . Sunset Ponds/Carlisle Village Main Street Bank, the bank securing the assets and liabilities for both the Sunset Ponds and Carlisle Village developments, was closed by the FDIC on August 28th, 2009. As Council may recall, Main Street took these development back after the failure of MW Johnson and Shadow Creek Corporation. Main Street's assets and liabilities have now in 3 Planning Commission Agenda — 10/6/09 turn been taken over by Central Bank of MN. The same Main Street staff that the City has been working with are now employees of Central. They have assured us that they will continue to work with the City to ensure proper property maintenance and, in the case of Carlisle Village, that required improvements are completed. Bertram Chain of Lakes Two important upcoming events related to obtaining State funds for future acquisitions: September 30th — County and City staff will be presenting to the Legislative & Citizens Commission on MN's Resources. LCCMR previously awarded $1 million to Bertram. October 291h — The Senate Capital Investment Committee will be on-site at Bertram to discuss the 2010 bonding request made by the County/City. Council members are encouraged to attend both events. For more information, please contact Angela Schumann. Land Use Decisions — Council Action & Activity Provided by City Attorney - Attached is a state district court decision in a Minneapolis land use case. The case was recently written up in the Minneapolis paper. Although the district court decision will likely be appealed, the decision's analysis of procedural due process is noteworthy. The City is subject to damages, according to the decision, because a city council member worked with constituents to ensure denial of a project. The application before the City was quasi-judicial and the council member's behind the scene involvement, according to the decision, deprived the applicant of procedural due process. Citizen Planning Training If any Council member is interested in the training offered through the American Planning Association (see attached), please let call Angela Schumann. FiberNet Construction Directional boring (main line construction) is about a month ahead of schedule. Lighting of fiber (allows customers to connect to FiberNet internet services) is a couple weeks behind. However, MP Nexlevel is pulling in additional crews in order to get ahead of schedule. Fiber testing is being completed this week at the Head End building. Construction plans for City Hall and the new FiberNet office were completed this week. Construction will begin next week. It should be noted that it is anticipated customers within construction zone 1, 2, and 3 will have the ability to sign up for internet service by mid October. S The 2008 Memorial By the Numbers A year and a half after the Memorial Weekend Storm of 2008, the City of Monti- cello Building Department is still handling permit activity related to the storm. The May 25th storm caused a tremendous amount of damage. Here's a quick look back, by the umbers: 90% Estimated number of Monticello homes which sustained some level of storm damage. 31517 Number of roofing, siding and window replacement permits issued since May 27th, 2008. Though t h e majority of permits for storm dam- age have been issued, there are still some homes in need of repair. The Building Department is working with property owners in all areas of the community to get this work completed. The Building Department also encourages homeown- ers to verify that their repair work received a final inspection. Final inspections are a critical component of the permit process, helping ensure homeowner health and safety. A Decision on Access at River Street As a result of the test pilot projects run on River Street in 2008 and 2009, the City will be altering access configurations for River Street at Highway 25. The City of Monticello is working with the Minne- sota Department of Transportation to turn the signal system back on at the intersection of River Street and State Trunk Highway 25. This work includes reprogramming the signal system at this intersection to provide a green light for all traffic on TH 25 from 4 to 7 PM, Monday through Friday. Traffic on West River Street will have a red light during these three hours, which will require all east- bound traffic on West River Street to turn right on red onto southbound TH To see a 25. The City recently diagram of the ordered several street signs River Street to assist in relaying this modifications, information to drivers on please visit West River Street, and will www.ci.montic install the signs at the time ello.mn.us. Mn/DOT reactivates the Click on the signal system All access to $33.7 Million If you have questions "River Street and from East River Street related to building permits, Improvements" will remain closed to traffic. Estimated replacement k on the contact the Building De- linAll work should be value for damaged artment at 763-295-3060. home page. property. p completed by mid-October. Fall Hydrant Flushing Begins October 13th Beginning October 13, 2009, the City of Monticello's Water Department will be flushing water mains. ' Work begins on the east side of the city, working toward the west. The expected completion date is November 5, 2009. Flushing is conducted in the spring and fall. In this process, the fire hydrants are ropened and water is forced through at high speeds, cleaning the water mains and removing sediment that can affect the taste and color of drinking water. Questions? Call 763-295-3170. What's Happening on 1-94? You've most likely seen the construction on 1-94 on the east side of Monticello. What is all the construc- tion for? • The Minnesota Department of Transportation is re- placing the twin Interstate 94 bridges over East Broadway (old CSAH 75) in Monticello. Mn/DOT will construct the new westbound 1-94 bridge first, after which traffic will be rerouted to use the new and the old westbound bridges while Mn/DOT de- molishes and reconstructs the old eastbound bridge. • Once the new eastbound bridge is built, traffic will be shifted onto both new bridges so the old west- bound bridge can be demolished. • Mn/DOT is also adding a deceleration lane to the outside of the new westbound bridge so traffic can leave the through lane before decelerating on the off -ramp to CSAH 18. Similarly, an acceleration lane is being added to the outside of the new eastbound bridge to provide eastbound traffic additional room to accelerate to highway speeds before merging into the through lane on eastbound 1-94. For additional information, visit Mn/DOT's web site at www.dot.state.mn.us/d3/construct.html. 1 I I I I I 1 City Tests LED Streetlights The City of Monticello is testing out new LED street light technology. Two LED fixtures have been installed in front of the Monticello Community Center. The LED lights use 50% less energy than a tradi- tional street light, can save the City up to 40% in en- ergy costs and will last up to 30 years. In looking aL future lighting projects on major City streets, LED technology has the potential to save the City a substantial amount of maintenance and energy costs for years to come. Over the next 6 months, the City will be evaluating the costs and benefits of utilizing LED streetlight technology. The City also has the opportunity to apply for federal grant funds to help offset the cost of the possible installation of these fixtures. To find out more, or If you'd like to comment these lights, you can eman t h e C i t y a t info@ci.monticello.mn.us � -- — — — — — — — — — — — — — — — — — — — — — — — — — — — Getting Your Yard Ready for Winter? City Services Make it Easy! I 1 FALL LEAF PICKUP Fall leaf pickup will be held on Saturday, October 31st. Please have your bagged leaves at the curbside by 7 a.m. No grass clippings, branches or other garden waste is accepted. Do not leave heavy or wet bags of grass clippings or garden waste at the curb as they will not be taken! Call 763-295-3170 with any questions. 1 BRUSH CHIPPING 1 Curbside chipping is available through the Monticello Public Works Department. Call (763)295-3170 to make 1 arrangements for chipping service. Please have your branches piled at the curb with the cut ends facing the r' street. Chipping services are $40 per half hour for the first 2 hours. After that, it's $70 per 1 half hour, with a maximum of 3 hours per property per season. The minimum fee is $40. C4NPOST FACILITY The City's compost forget that the City's compost facility is open through October! 1 facility is available to city residents only. We have placed a new combination lock at the facility, 1 which is changed every Thursday. Please call 763-295-3170 for the combination and info. We ' / will simply ask your name and address at the time of the call to verify you are a city resident. — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — American Planning Association Minnesota Chapter Making Great COn'PML111160.5 HOPPen Northwest District Planning .Workshop Date: October 29, 2009 Location: MnDOT District Offices 3920 Highway 2 West Bemidji, MN Time: 1.2:30 — 4:30 p.m. Summary: A workshop with important land use & zoning training topics for citizen planners. Audience: Elected and appointed officials from Northwestern Minnesota & beyond! Register: Registration $25 Maximum Registrations - 44 Registration will be available online at www.mnaDa.com Sign Up for this program today! Local Sponsor: Headwaters RDC hrdc0hrdc.orci Lodging: www.visitbemidii.com A Great Learning Opportunity! Agenda 12:30 Welcome & Program Overview •+• Wayne Hurley, AICP —Planning Director, West Central Initiative & MNAPA NW District Director 12:35 Intro to Planning, Zoning & Land Use — Citizen Planning in Greater Minnesota Gordon Hydukovich, AICP — Community Development Director City of Fergus Falls 1:50 Break 2:00 Running the Meeting, Developing Findings & Administration of the Zoning & Subdivision Ordinance ❖ Troy Gilchrist — Land Use Attorney, Kennedy & Graven Chartered, Minneapolis 3:00 Break 3:10 Understanding Minnesota Land Use Planning & Zoning Enabling Laws Troy Gilchrist — Land Use Attorney, Kennedy & Graven Chartered, Minneapolis 4:15 Training Review, Q&A & Conclusion •:• Wayne Hurley, AICP — Planning Di recto r, West Central Initiative & MNAPA NW District Director More info: Please contact Wayne Hurley at 800-735-2239 or wayne@wcif.org Sep -16-09 11:56am Fr6m-13 DC +6125969143 7-122 PA02/026 F-990 STATE OF MINNESOTA DISTRICT COURT COUNTY OF HENNEPI'N FI FOURTH JUDICIAL DISTRICT ,'Uhh , SEP Bradley A. Hoyt H N!s `.ar°urY acid Continental Property Group�gg8,T Ab1�6r1��t;�R A oRT FINDINGS OF FACTI Plaintiff, CONCLUSIONS OF LAW, AND ORDER V. City of Minneapolis, Case File No. 27-CV-07-SS26 Defendant. The above -entitled matter was tried to the Court on June 8-12, 23 and August 3-4, 2009 with the parties making closing arguments on August 25, 2009. William R. SkoHck .arid LuAnn M. Fetricka appeared on behalf of Plaintiffs Bradley A. Hoyt and Continental Property Group, Inc. ("Plaintiff'). Charles N. Naucn and Gregory J. Myers appeared on behalf of Defendant City of Mimeapolis. In addition to documentary evidence, the Court heard testimony From witnesses, including Plaintiff s architect Paul Mellblom ("Mellblom") from the Meyer Scherer & Rockcastle firm; Plaintiff Bradley Hoyt ("Hayt"); Minneapolis City Council Members Lisa Goodrn,vi ("Goodtnazz" ), Paul Ostrow ("Ostrow"), Gary Schiff ("Schiff"), Daniel Niziolek ("Niziolek"-) and Council President Barbara Johnson ("Johnson'); Ciiy staff rneniber 1Jonglas Kress ("Kress"), Comwu.T4ty Planning and Economic Development ("CPED") staff member Rebecca Farrar ("Farrar") and CPED Deputy Director Charles Lutz. Portions of deposition transcript testimony from several other witnesses were also submitted, including former CPED Director Lee Sheehy, CPLD staff members Jack Byers and Hilary Dvorak, Planning Coznminion member Michael Krause, neighborhood organizer Scott Mayer ("Mayer"), Cxtinns for a Loring SW- 16-09 11 :563M From -13 DC +6125959143 T-122 P 003/025 F190 Hill Community coordinator Jana Metge ("Motge"), end Joseph Bagnoli, an attorney associated with another project. Based upon the evidenee adduced, the argument of counsel., 2,nd all of the files, records, and proceedings herein, and for the reasons stated on the record, the Court makes the following: ORDER: I. Plaintiffs. equal protection claim is DISMISSED. 2. Plaintiff's substantive due process claim is DISMISSED.. 3. Plaintiff s has established its procedural due process claim. Plaintiff was denied a ;fair bearing. on its appeal by the Zoning and Planning Committee; and, subsequently, by the City Council, 4: The Court shall reconvene on September 29-30,2009 to receive evidence on the issue of /remedies and damages. S. The anached Meznorandurn in incorporated herein. and made apart hereof. LET MOMENT BE ENTERED ACCORDINGLY. Dated: September 16, 2009 2 BY THE COURT �i: C. Aldrich of District Court Sep-16-09 11:56am Prom-13 DC +6125969143 T-122 P,004/025 F-890 11 M412ANB'UM I. Background In the fall of 2003, Plaintif4urchased au option on property located at 343, 401, 4.03, and 409 Oak Grove Street and 416 Clifton Avenue in the Loring Hill neighborhood of Minneapolis. The property consisted of a sitrface parking lot which served nearby office buildings including. 430 Oak Crrove, another property acquired by Plaintiff. Plaintiff purchased its option with the intention of developing the property. . The property was, at-all relevant times,, zoned as. part of an Institutional Office Residence District (" OR3''). The OR3 zoning Classification restricts the height of buildings to six stories or eighty-four feet. Furthermore, because the property is located within one thousand feet of the ordinary high water mark of Loring Pond, it is also subject to the standards of the Sh.oreland Overlay District, which imposes a hcight restriction of'two and one-balf'stories or thirty-five feet. Plaintiff engaged the architectural firm of Meyer, Sherer & Rockeas,tle, Ltd. ('MS&R") in late 2003. Garth Rockcastle. ("Rockeastle") and Pau] Mellblom of MS&R were the chief architects in charge of designing Parc Centrale, as the project came to be known, as well as assisting in the process of applying for needed land use permits and variances. After conducting initial research of the project site, Plaintiff's architects generated mro potential design concepts; one consisting of a slender mixed-use tower with.an eight thousand square feet footprint bordered by two-story townhouses fronting on the adjacent streets ("the tower"), the other a six - story "slab" building with a nineteen thousand square feet footprint built to the property lines Ssp-16-09 11:Uam From -13 DG +9125960143 T-122 P 005/025 F-990 ("the slab"),' After taking a variety of factors into consideration, including economic viability, Plaintiff eventually settled on the tower design over the slab option. Because the contemplated tourer project exceeded the.height restrictions of the two applicable zoning districts, in .Tiny of'2004, Plaintiff applied for two conditional use .permits C'Ms" ): one to increase the maximum.permitted height frow two and one-half stories or thirty- Live feet to twenty-one stories and two hundred and thirty feet and a second to allow for a multiple family project containing one hundred and four units. At the saner time, Plaintiff applied for two variances: one to reduce the required corner side yard setback off Clifron Place from forty-eight to sixteen feet for the proposed building and four .feet for the proposed patio area and a second to reduce the rear yard setback off the south property line from the required forty-five fect to nineteen feet for the proposed building and eight feet for the proposed patio area. Finally,. Plaintiff also requested a .major site plan review. In August of 2004, CPED staff reviewed Plaintiff s application and issued a fourteen - page report recommptxdiog that the City ofMin4eapolis Planning Commission " Planwrig Commission'') deny the application. Later that znortth, acting on the recomwen.dation of CPPD, the Planning. Commission, denied Plaintiff s application by votes of five to two on the CUN, five to two on the variances,. and, six to one on the site plan. In September 2004, Plaintiff appealed the Planning Commission's decision to the City Council, On September 1.5, 2004, the Planning, Commission's decision was reviewed by the Council's Zoning and Planning Committee. The Zoning and planning Committee was made up of five City Council Members: Goodinan, Schiff, Niziolel;, Ostrow, and Dean Zimmerman. The 1 plaintiff considered several, height options between twelve and twenty -plus stories before settling -on twenty-one. 4 sap -16-09 11:57am From -13 X +6125968143 T-122 P 006/025 F-880 Committee took testimony from CPED staff" and representatives of Plaintiff before ultimately recommending the denial of plaintiff s application by a unanimous fete to zero vote. On September 24, 2004, by a unanimous thirteen to zero vote, the full City Cotmcil adopted the findings and recommendation of the Zoning and Planning Committee and upheld the decision of the Planning Commission to deny the requested conditional use permits, variances, and site plan review. Now4thst2nding the votes of the Planning Commission, Zoning and. Planning Cornrnittce, and the City Council, in late September 2.0044 Plaintiff exercised its option to purchase the property. On November 23, 2004, Plaintiff submitted an application for a second proposed project on the property. This project consisted of a seven -story, seventy-seven foot, seventy -four -unit building. The proposed project required a. conditional use permit for height and for the number of residential units as well as a site plan review, but required no variances. On. January 23, 2005, CPED staff issued a report recommending that the Planning Commission approve the application. However, on February 23, 2005, Plaintiff withdrew its application, citing infeasibility due to higher than .anticipated constructions costs. On March 27, 2007, Plaintiff filed the instant lawsuit alleging violations of bath due process and equal protection and seeking declaratory and injunctive relief, an award of damages, .and attorney's fees under 42 U.S.C. § 1983. On August 1, 2008, the Court heard Defendant's motion for summary judgment. Dofendant's motion was granted as .to Plaintiffs equal protection claim, but denied as to Plaintiffs due process claim. The order also allowed Plaintiff to proceed to trial under Minn. Stat. §452.361 to order to supplement the record of -the City Council proceedings and to challenge the reasonableness ofte City's decision and the fairness ofthe process worded.. Sats -16-09 11.57V From -13 DC 46125969143 7-122 P-007/025 F-690 On November 6, 2008 Defendant sought to have the case removed to Federal Court arguing that the summary judgment decision modified Plaintiffs original complaint and therefore, removal was appropriate tinder the doctrine of revival. The federal Court disagreed, however, and granted Plaintiff s motion to remand to this Court on February 12, 2009. On April 27, 2009, the Court heard Defendant's request for leave to file a ,motion for reconsideration. Defendant argued that PlaintiZ in its application, failed to make a showing of hardship that would warrant the grant of a variance. On May 21, 2009, the Court issued an order finding that Plaintiff did not make a showing of hardship in its application, but allowing Plaintiff to Rrgue, at trial, that there was an equid protection violation with regard to the treatment of its application compared to other applications. Namely, that the City routinely ifmored the hardship requirement. On July 17, 2009, following the close of Plaintiff's case -in -chief, the parties came before rhe Court on Defendant's motion for involuntary dismissal of all of Plaintiff's claims. On July 22, 2009, the Court denied. Defendant's motion and further ruled that, while Plaintiff did not specifically state a claim for violation of procedural due process in -its original complaint, the complaint was amended under rule 15.02 basest upon the ovidence presented by both parries at trial. Plaintiff has presented three claims which the Court must now rule upon. Plaintiff argues that the City has violated its equal protection., substantive due process, and procedural due pxocess.rights. 11. Equal Protection Plaintiffs equal protection challenge arises as a response to Defendant's argument that Plaintiff failed to demonstrate hardship in connection with its application for variances. 6 Sep -18-09 11:57am From -11 DC +51219881d2 7-122 P 009/021 F-890 Defendamt argues that Plaintiff Failed to make a showing of hardship in its application which would warrant the grant of a variance, Defendant further argues that the lack of hardship showing was a threshold issue as, without it, the City could not have granted a variance even if so inclined. In response, Plaintiff alleges an equal protection violation, arguing that the City .routinely issues variances without a showing of hardship and had done so with regard to several similarly situated properties -gear the time of their application. The Court allowed Plaintiff to pursue this theory at trial. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution requires that government. treat "all similarly situated people alike," Barstad V. Hinlray County, 420 r 3d 880, 884 (8th Cir. 2005). The threshold inquiry in a denied zoning applicant's equal protection claim is whether it is "similarly situated" to successful zoning applicants. Id. To establish that it is "similarly situated" to a successful applicant, a plaintiff first must demonstrate that the applications were subj ect to the same zoning requirements, standards, and. criteria. See Oderson v. Douglas Counry, 4 F.3d 574, 577 (8es Cir. 1993) (parties not similarly situated because. different requirements applied to plaintiff's application than to other applicants); Billy G-aham v. City ofMinneapolis, 667 N.W.2d 117, 126-27 (Minn. 2003) (parties not similarly situated where their applications involved different standards and criteria); Korrschade u City of Ppchester, 537N.W.2d 301, 306 (Minn. Ct. App. 1995) (parties not similarly situated because applications implicated different regulations). Applicants are not similarly situated if they have different settings, circumstances, and impacts on their neighborhoods. See Bituminous karetials, hic. v. ,Rice County, 1.26 F.3d 1068, 1072 (8" Cir. 1997) (asphalt plant and gravel pit not similarly situated to other asphalt plants and 7 SUP -16-09 1f:.5tam Frot-13 DC +6125969143 T-122 P.009/025 F-990 gravels pits in same county because each raises different public concerns); Adinnetonka Moorings, Inc. v. City of Shorewood, 3671x'. Supp.2d 1251, 1256 (D.Minn, 2005) (marina on 'Gideon's Say -not similarly situated to marinas on other bays on same lake); Billy Graham, 667 N.W.2d at 127 (parties not similarly situated Because properties were "situated difserently" within the same area); Kousehade, 537 NX2d at 307 (properties not similarly situated because different physical settings warrant dissimilar dedication requirements),; Castle Design & Dev, Co. v City of Labe Elmo, 3.96 N.W.2d 578, 582, (Minn. Ct. App. 1986) (differences in lot sizes And types of variances requested justify differential treatment). See ahro Koscielski v. City of lufifgnectpolis, 435.3d 898, 901 n.2 (8th Cir. 2006) (gun retailers at gun shop not similarly situated to gun retailers. at gun show in same city). Applicants are not similarly. situated if the zoning applications or decisions axe made at materially different times. Compare Kattschade, 537 N.W.2d at 306 (1983 application not similarly situated in time to 1990, 1984, and 1986 applications); andl'n re Variance Request of Johnson, 404 N.W.2d 301 (Minn. Ct. App. 1987),, overruled on other grounds by kyron V. City ofPlymourh, 562 N.W.2d 21 (Minn. Ct. App. 1997). (August 1986 application not similarly situated in time to appiioatiort in May 1985, 1984,.and 19$3); with Northwestern College a City ofArdan Hills, 281 N.W.2d 865, 869 (Minn. 1979) (parties similarly situated where decisions on applications were made at the "sante time"); and May v. roKJtrship of Grow, .206 N.°9V.2d 19, 24 (Minn. 1973) (pasties similarly situated where "almost simultaneous filing" of applications ocGtuxed'); Notre of the projects with which Plaintiff oompares itself is similarly situated to Plaintiff's proposal for purposes of equal protection analysis. The evidence presented at trial Sap -I8-09 11 :Slam From -13 DC +8125969143 N 22 P.010/025 F-890 shows that they were subject -to di:Ffexent zoning requirements and criteria and/or involve different settings, circt=stances, and time periods,- 317 eriods; 317 Croveland This application was for a seven -story, eighty-one foot tall building (approximately one-third the size of Plaintiff's original proposal) and required a single setback variance of only two feet (from seventeen feet to fifteen feet). The requested variance Involved only one side of the building, that adjacent to .Interstate 94; therefore no neighbors were impaoted. The Edgewater This application was for a six -story, eighty-two foot tall, twenty -eight -unit building located approximately two miles south in the East Calhoun neighborhood. There was a pre-existing structure on the project site which. was built to the property line and the proposed structure actually increased setbacks for most of building - Clifton Place This. application was for a four-story, forty -four -unit building which was to be located within the required setbacks, Variances were required only Car a stairway and patios, The project height complied with OR3 limitations. The application was submitted more than one year before Plaintiff s application. Fifth Avenue Gateway This application involved a, project located in the Eliot Park, rather than Loring Pull} neighborhood. The proposed project is ixmnodiately adjacent to the downtown zoning district and the property abutted Interstate 35W. The property is not within the ShOreland Overlay district. Bridge Place This application involved a project located' approximately two miles from boring Hill, near the Mississippi River and in a downtown zomng district with no height limitation. A setback variance was required only because the project was residential (surrounding coiwnercial buildings are not subject to the. same setback restrictions). This application also was subnoitted more than orie year before Plaintiff s application. Even if Plaintiff s property were similarly situated to the aforem 6tioned properties, a plaintiff tmuM farther domonmate there was no rational basis for differential treattnent. Barstad Sap -16-09 11:5Tam From -19 OC 4612596914S T-122 P 011/025 F-890 at 834. in examining if there -was a rational basis for different treatment, the ,courts are SGproperly deferential as municipalities manage their affairs. A court ought to invoke its power only when there is no arguable basis for a municipality's decision." Minnetartka Moorings, 367 F. Supp.2d at 1255. As discussed below, the evidence shows that Plaintiffs proposed project did not meet the applicable zoning standards and requirements in several respects and that there was at least one tational basis for denying plaintiff's application and, thus, for differential treatment. Furthermore, a municipality cannot be bound by previously issued variances. See .Frank's Nursery Sales v, Cry of 'Rosevill�, 295 N.'W.2d 604, 607 (Minn. 1980) (stating "a municipality cannot be estopped from correctly enforcing the ordinance even if the property owner relied to his detriment on prior city action."). If a zoning authority were so bound, the entire zoning scheme could be undermined by one erroneously issued variance. In re J'bhnson, at 301 ("[A]n applicant for a variance is not entitled to a variance merely because similar variances were granted in the past. Otherwise, the granting of one variance would likely result in the destruction of the entice zoning scheme"). It necessarily follows that an equal protection claim. does not arise simply because a similar variance was granted in the past. The applicant seeking the variance must show that he was entitled to the variance; it is not sufficient to assert chat the applicant. was entitled merely because a similar variance was previously granted. See Stotts u. Wright Counly, 478 N.W.2d 802, 806 (Minn. Ct. App. 1931) (refusing to allow evidence of a neighbor's setback variance as a substitute for lack oferridence on the criteria established in the orditance). fn Campbells the plaintif'f's argued that they were denied equal protection because the board of adjustment (`BOA") required them, but not other variance applicants, to satisfy all of the applicable zoning 10 Sep -16-09 11:57am From -13 DC +6125969]4.3 T-122 P, 012/025 F -89D requirements, including the requirement to demonstrate hardship. Campbell V. Wright County. Board ofAdjustrnent, 2005 WL 2129310 at a'2-3 (Minn. Ct. App. Sept. b, 2005). The court rejected plaintiffs` argument: Because the B.OA previously misapplied the [zoning ordinance] by not requiring [other) applicants to prove a hardship and the requirements in section 502.3, appellants are asking, this court to require. the ,BOA. to continue misapplying the ordinance. But "(a)n applicant for a variance isnot entitled to a variance merely because similar variances were granted in the past. Otherwise the granting of one variance would likely result in the destruction d the entire zoning scheme." Id, at *3, (quoth7g In re Johnson, at 301). Finally, the evidence established that applicants for variances must demonstrate hardship through their applications. The evidence further established that CPED staff makes reconamendations.regarding whether an applicant has demonstrated haardship .based ora -a review of -the application, and the City Council ultimately decides whether an, applicant sufficiently demonstrated hardship based on the application, Absenoe of references to hardship in staff reports and City Council decisions granting variances does not necessarily show that applicants failed to demonstrate hardship in their applications or other materials. To show that other applicants failed to demonstrate hardship requires an examination of the actual applications. See also Order (May 7, 2009) (requiring Plaintiff to demonstrate "that there was an equal protection violation in the treatment of its application compared to other applications.") (emphasis added). Plaintiff failed to offer the applications of any applicant who allegedly did nol demonstrate hardship but who nevertheless was granted a variance. Because o.f?this fundamental 1l Sep- 16-05 11 :Ham From -13 DC +5125969143 N22 P 0131025 F-990 failure of proof, Plairitiff failed to establish an essential element of its equal protection claim, i.e., that the other applicants are similarly situated a XIL Substantive Due?rocess Plaintiff alleged that the City .acted arbitrarily and capriciously in denying Plaintiff- s application. Throughout the trial, Plaintiff made clear its intention to attack the findings contained in the CFED report as adopted by the City Council's Zoning and Planning Committee as lacking a factual basis. They original allegation and the pursuant actions of the parties and this Court make clek that the words arbitrary and capricious denote two claims: a Minnesota state law claim Challenging the City's endings and a Federal Constitutional Substahlive Due process claim. From tate outset, it must be noted that although the worditag is similar, These claims do not carry the same burdens. See Condor Corp. v. City ofSaint Paul, 912 F.2d 21.5 (8th Cir. 1990). Under state law, "[r]egardless of whether the xvdf.ng matter is legislative (rezoning) or quasi judicial (variances and special -use permhs), we determine whether the municipality's action in the partioular case was reasonable. We examine the municipality's action to ascertain whether it was arbitrary and capricious." VanLandschoot u. City of Mendota Heights, 336 N.W.2d 503, 508 (Mirm. 1983). "A zoning decision. is arbitrary if th;e applicant meet's the standards specified by a certain zoning ordinance" Condor Corp. 912 F.2d at 221 (citing Zylka v. Ory of Crystal, 167 N.W.2d 45, 49 (Minn. 1959)). Findings that a City's decision was arbitrary and capricious "should be reserved for those rare instances in which the City's decision While the Corot holds that Plaintiff failed to establish an equal protection violation with regard to the City's treatment of an applicant's showing of hardship, the Coun does not find this to be a threshold issue which ''would absolve the City of its due process mandates. While Plaintiffs equal protection claim Mails; it is clear that the City does rkot always scrutinize ai applicant's showing of hardship. 'While this does not rise to the level of an equal protection violation, it does suggest that the process may be less than fair and lends further support to Plaintiffs claim of a violation of procedural due process. 12 Sep -16-D9 11:53am From -13 DC +6}25969143 T-122 P 014/025 P-696 has no rational basis. Except in such cases, it is the duty of the judiciary to exercise restraint and accord appropriate deference to -civil authorities in the performance of their duties." While Bear Docking acrd Storage, Inc. v. City of While Bear Lake, 324 N.W.2d 174, 176 (Minn.1982). .As for Federal law, "a substantive due process claim in the zoning context exists, if at all, only in. extraordinary situations and will not be found in °run of -the -mill' zoning disputes." Northpointe Plaza v. City o„f.Rochester,'465 N.W.2d 696, 690 (Minn. 1991) "The test in the Eighth Circuit for determining whether there has been a violation of substantive due process in the context of § 1983 zoning actions is twofold: first, whether there has been a deprivation of a protectable (sic) property interest and, second., whether the deprivation, if any, is the result of an abuse of governmental power sufficient to state a constitutional violation." Id. (citing Littlefield . u. City of.Jfton, 7851=.2d 596, 603-02 (8th Cir. 198.6)). "(1]n the zoning context, 'whether government action is arbitrary or capricious within the meaning of the Constitution turns on whether it is so `egregious' and `irrational' that the action exceeds standards of inadvertence and mere errors of law."' Id. (citing Condor Corp. 912 ) .2d at 220 (8th Cir. 1990)). The Federal threshold is higher than the threshold under Minnesota law. Id. Therefore, it logically follows that if Plaintiff s claim fails- under Minnesota lawn, it must also fail under Federal law. To construct its proposed proj ect, Plaintiff had, to apply for both CUN and variances. The standards for granting CUPS are found in the. Minneapolis Municipal Code. For CUPS generally: The city planning commission shall make each of the following findings before grunting a conditional use permit: (1) The establishment, maintenance or operation of the conditional use will not be detrimental to or endanger the public health, safety, comfort or general welfare. 13 Sap -1608 11;58am Flom -13 DC + 125960143 7-122 P.015/075 F-890 (2) The conditional use will not be injurious to the use and enjoyment of other property in the vicinity and will not impede the normal and orderly development and improvement of'surrounding property for uses pezxnitted in the district. (3) Adequate utilities, access roads, drainage, necessary facilities or other measures, have been or will be provided. (4) Adequate measures have been or will be taken to minimize traffic congestion in the public- streets. (5) The conditional use is consistent witli the applicable policies of the comprehensive plan. (6) The conditional use shall, in all other respects, conform to the applicable regulations of the district in which it is located. Minneapolis. Code of Ordinances 525.340. Fox CUPs increasing height: The height limitations of principal structures located in the office residence districts, except single and two-farnily dwellings, may be increased by conditional use permit, as provided in Chapter 525,. Administration and Enforcement. In addition to the conditional use standards, tlxe city plataning coznrnassion shall consider, but not be limited to, the following factors when determining the maximum height., (1) .Access to light and air of surrounding properties. (z) Shadowing of residential properties or significant public spaces. (3) The scale and character of, surrounding uses. (4) Preservation of views of landmark buildings, significant open spaces or water bodies. Minneapolis Code of Ordinances 547.110. Findings for CUPs must be factually. based. Goodman confirmed this as did Farrar. The following findings, spelled out in both the CP] D 'Report and the Findings and Recommendation of the Zoning and Planning Committee may be legally sufficient to survive substantive due process scrutiny. Findings A and B below leave much to be desired, however. A. "Detrimental to or eadaxzger the public health, safety, comfort or general welfare" The CPED Rcport found that on the basis of the shadow study submitted by P1aiwiff, Iiznhations of light and air "could be dexrimenU- to the comfort and general welfare of [the surrounding) properties, especially those located to the north and northeast of the proposed 14 SsF-16-09 11 Mom From -13 OC +6115559143 T-122 P 016/015 F-890 tower." The Zoning and Planning Committee findings, without providing -any basis for doing so, went even further to say that, "[t]he proposed project would be detrimental to the public comfort and general welfare because of shadowing of adjacent property." The -problem, is that the CPED report and the findings of the Zoning and Planning Committee both cite The effects upon "surroundizig" or "adjacent" property. This section of the ordinanoc, however, deals ih generalities: public health, public safety, public comfort, and general wolf -are.. Nowhere, in either the CPED ,Report or the l=lzidings of the Zoning and planning Committee, we such general. Landings made. The plain meaning of the Murxicipal Code prohibits a,limited analysis of surz-oundhig properties as the sole basis for general welfare finding. Additionally, to allow such limitation would make moot the -need for the second section of the ordinance which specifically requires analysis of the effect, of granting a CUP, upon surrounding properties. Therefore, the construction adopted in the CPED report and the Zoning and Planning Committee violates the basic rule of statutory interpretation that °`fe]very law shall be construed, if'possible, to give effect to all of its provisions." Minn. Stat_ §645.16. B: "Injurious to the use and e0joymer t of property in the vicinity" and "impeding the orderly development and improvement of urrounding property" .As -discussed above, tho shadowing arguzuents made by the City are better made as part of this analysis. CPED found that "increasing the height of th.e building could be injurious to the use and enjoyment of the surrounding property and could impede the normal development of the surrounding area." First, the claims that shadowing impacts would be inimio.us and impede normal development are without merit. There is no finding in die record that the temporary daily shadows cast on the surrounding properties would be trulyinjurious. That shadows exist is not 15 Sep -16-09, 11:58im From -13 DC +8125969143 T-122 P 017/025 F-890 enough, without more, to justify this decision.1vtoreover, even had the shadow analysis contained. concrete findings Ofinjury,. the owners of properties (tic the north and northeast) which would have been most significantly impacted by the shadowing were actually in support of the Project, and other nearby, affected properties were owned by the Plaintiff, a face that was known by the City at the time oftheir analysis. Second, while the finding that the tower was nor Within the scale and character of the neighborhood was reasonable, the fording that the failure to so conform was injurious to surrounding properties and an impediment to normal development was without any factual support- Contrary to the assertions of the CPED report qr the fxndinas of the Zoning and Plazuxing Comniitteet it does riot necessarily follow that a deviation in scale and character in a neighborhood which is, by the City'g own admission, `:varied" in scale and character would result in the type of injDly. Or impediment claimed. Finally, the finding that the tower would block some ``views of the historic landscape and and structures on Lorin Dill and views of and from S oring HiII Pond" is supported by the facts. Therefore, the decision was reasonable on this basis. C. "Scale and character of surrounding uses" and `°consistency with the Comprehensive Flava: The evidence supports the.findings of both CPED and the Zoning and planning Committee that Plaintiff's proposed project was not in keeping with the spirit of the Downtown 2010 plan,. Specifically, the Downtown 2010 plan states that the City should <`[ejnsure that new residezitial development contributes to the sense ofneighborhoods through appropriate site Plawiing, and architectural design,„ :irk addition to tate courtroom evidence received, the Court completed a site visit consisting of a tour ofthe Loring Hill neighborhood. 16 Sap -18-08 1 f :58am Fram-I DG +6 IN 969143 T-122 F GIM25 F -o.90 There exists a factual basis for the finding that the proposed twenty -one-story glass. facade slender tower is not consistent with the scale and character of the neighborhood, The Loring Fill neighborhood consists nearly entirely of low-rise residential and office buildings within. the Umits of the OR3 Zoning )District. And, while varied, the proposed Tower is objectively different, in both exterior appearance and height, from its surroundings. While there is cextainly room, ,for argument as to whether the proposed development fits within the scale and character of the neighborhood, this Court give deference to those findings which have some factual basis. As a result of the City having at least onereasonable, factually based ground to deny Plaintiff's application, Plaintiff s state Iaw claim, that the decision of the City was axbitrary and capricious, is denie& Accasdingly, the Federal Constitutional Substantive. Due Process claim is also denied. Additionally, the Court need not further analyze the legitimacy of the remaining CUP and variance denials as those issues are moot. XV. Procedural Due Process "[T]he r'tgltt to procedural due process is "absolute" in the sense that it does not depend Upon the rAerits Of claimant's substantive due process assertions." Carey v 1 i hus, 43S U.S. 247, 266 (1978). ';[T]he due process protections granted under the United States and Minnesota Constitutions are identical" Fbsselmon v, Comm'r of Human S'ervicess 612 1q.W.2d 456 (lvlinn. 3 Defendant's contenrion that Plaintiffs Claim fails due to the existence of a post deprivation remedy in the form of District Court review was considered and is now rejected. In support of its argment, Defenc4wt primarily relies upon two cases: Winnick v; Chisagp CL)unry Bd. of Conzm `rs, 389 N.'W.2d 546 (Minis. Ct. App. 1986) and Hudsofs v. Palmer, 46$ U.S..517 (1984). These cases are not proper analogues; pertaining to either- systems where pre -deprivation .process is unworkable (Hudson) or situations where the procedural process was ultimately fair (Wrmlick). See also 4icari v. Ferruzzzl, 22 F.3 d 344 0 st Cir. 1994); Heng y Coinpany ,Fomes, ,Inc, v. Curd; 548 F. Supp.2d 1281 (N.D. Fla. 2068). 17 Sap -1S-09 11:59am From -13 Dt +6126959143 T-122 P-010/026 F-690 Ct, App. 2000). in the context o�zonirig decisions, procedural duc process requires `reasonable notice of a hearing and. a. reasonable opportunity to be heard" Barton Contracting Co. v, City of Afton, 268 N.W.2d 712., 716 (Minn. 1978). Included within the right to procedural due process is the .ability and opportunity to confzont and respond to issues raised that may impact the decision-making process. As stated in the treatise relied upon by the City Attorney for the City of Minneapolis in its Memorandum on the subject: The due process right to a "fair hearing" on the issue involved clearly prohibits any use of secret evidence or secret reports that have the effect of denying the person involved a fair opportunity to proffer rebuttal evidence and testimony. Auden, H. Rathkopf et al., Rai M—f s The Law of Zonina, and P.-._., ing §. 32.13 (4th ed. 2009). While Minnesota appellate courts have not specifically addressed what constitutes unfairness with respect to the manner in which zoning; proceedings axe handled, the Court is provided with the following guidance: With respect to adjudicative or quasi-judicial ;coning action'[...) procedural due process generally prohibits bias or conflict of interest on the .part o zoning officials involve4 iA the decision process (...] ConceM. for the impartial exercise of quasi-judicial authority, in appearance as well as fact, requires that the decision -maker disqualify themselves where bias or conflicts of interest -can be shown. [... ] Oencrally, conflict of interest or bias affecting the appearance of impartiality in zoning proceedings can be shown by: �...� (2) partiality or prejudice stemming from associationa.l ties, familiar relationships, friendships, employment or previous business dealings or conduct during the ptoceeding, or (3) prejudgment. of the issues, which is usually revealed by pre -hearing statements, [,..j To show an invalidating bias in ,zoning cases, courts generally have required such statements be linked .with advocacy of a posidoa in the particular case n question, as demonstrated by hearing conduct or by the course of proceedings that makes plainly evident the "closed mind" of the zoning decision maker. 18 SOP -16-09 11:54m From -19 DC +6125969149 T-122 P.020/025 FIR Id. at §§ 32.14 and 32.18. This language was quoted in the City Attortey's own internal memorandum which was forwarded to all Council Members.' As a prelim mxy macer,, Plaintiff is not limited to what the City identified as its "official record" for purposes Of Proving its claims. As stated in the Court's October 10, 2006 Summary Judgment Order, Plaintiff demomtrated that the official record was incomplete and Plaintiff, therefore, was entitled to supplement the record by way. of trial. A, number of critical communications that should have been included in the "official record" were not submitted for inclusion, especially the email communication. from Goodman to the other members of the Zoning and planning Committee as well as Goodmads email communications in response to her Constituents voicing her stated position. The absence of such. critical communications is troubling in a situation-whete Plaintiff was entitled to a public hearing that was to be conducted with full and open disclosures on the retard and in a fair and tateaningful manner. The timeline of events nAd comma ications,$ which Plaintiff established at Trial and which the Court now incorporates in its Findings of Fact., demonstrates that Goodman took a position in opposition and exhibited a closed mind with regard to Plainjiff s proposed project prior to hearing Plaintiff's appeal at the September 16, 2004 Zoning and Planning Committee meeting and the September 24, 2004 meeting of -the full City Council. The timeline of events and communications further dernonstrates'that Goodman, adapted an advocacy rale in opposition to Plaintiff's proposed project well before she discharged her quasi-judicial duties. She was clearly 4 Courrs have taken the position that the participation in the deliberation by a member who Should have been disqualified vitiates the entire pzoce�eding,. even though the votes of other members would have supported the end result. See e.g., Baker V. Marley, 8 N Y.2d 365 (19 60) (the resolutions and other actions of the board declared void, even though the vote of the Mayor was not necessary since a majority existed without his vott). S: Attached. I9 Sep -16-09 11:59am From -13 CC +6125969143 T-122 PA21/025 F-990 involved in an, effort not only to assist to organize and mobilize neighborlxood opposition to the project, }out also to sway the opinion$ of her fellow council members. Such actions were innproper and impermissible for someone acting in a quasi judicial capacity. Furthermore, trial testimony. (most notably that of then -council Presidez)t Johnson) established that, while aldennank courtesy is not determinative of zoning decisions, the opinion of the council member in whose ward a. project is proposed is given substantial weight. Goodman's actions, coupled with the lingering effects ofaldennanic courtesy and the reliance, on the paxt of City Council in general, on undisclosed communications and evidence not made a part of the official record vitiated Plaintiffs right to a fair hearing and violated its right to procedural due process.a V. PlainOW, s 42 U.S. C. § 1983 Claims A cause of action exists under § 1983 if a party was deprived of a Federal right and that the person(s) so depriving acted under color of state law. See e.g., Mbznesota Council of Dog Cl:sbs, er al. V. City of Minneapolis, 540 N.W.2d 903, 905 (Minn. Ct. App. 1996) (citing Gomdz v To1s.4, 446 U.S. 635., 640 (1980); See also Montell v. Dept of Social Servs 436 U.S. 658, 690 (1978) (United States Supreme Court case first extending. section 1983 liability to municipalities, which allows for monetary damages to be awarded) The applicable fedoral statute provides in pertinent part: Every person who, under color of statute, ordinance, regulation., custom, ox usages, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen Of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or ir=un' Wes secured by the Constitution and laws, shall be liable to the party iniure4 in any action at law, suit, inequity, or other redress.... ¢ Jolirzson's testimony regarding the weight given to the opixkion of a cotuxcil member in whose ward a Project was proposed was echoed by other testifying council members as well as CPID Deputy Director Lutz. 20 Sea! -16-09 11.59am Prom -13 DC 42 U.S.C. § 1983. #6125969143 T-122 P-022/025 F-990 Plaintiff has proven a violation of its constitutionally protected procedural due process rights as found herein based directly upon the City Council and its members acting, under the color of state law in deciding Plaintiff's zoning, application and subsequent appeal. The City condoned at otherwise ratified the unlawful conduct of Goodman and others whose conduct directly injured Plaintiff thereby making it liable, for her actions, Therefbre, since the Court finds a denial of Plaintiffs 'procedural due process rights exists, equitable remedies and/or.actual damages may be awarded under 42 U.S.C.. § 1983. Id. Sae also Brewer v Chauvin, 938 F.2d 860 (8th Cir.1991) (holding that public employee denied procedural due process may recover punitive damages and shifting the burden of proof to the employer to show that even if procedural due process provided the decision was sgpported by the preponderance; of the evidence). Moreover, 42 U.S.C. § 1988 (b) expressly allows for "a reasonable attorney's fee as part of the costs" when succeeding, on Section 1983 claims. 1BY THE COURT Bated: September 16, 2009 , Stephen C. Alch Judge of District Court 21 90-10-.09 11:59am From -13 DC +6125969143 T-122 P.123/025 P-690 10/29/03 Meyer, Scherer & Rockcastle sign retainer Mth Plaintiff for Trial Exhibit 202 development of the pniect, 03/04- A series of meetings between Plaintiff', its, representatiyes, Trial Exhibit 103 05/04 Goodman ("L.G."), gess, CPED staff, and neighborhood Trial Exhibit 105 organizations take place in which Plaintiff's proposed project is Trial Exhibit 107 .introduced and discussed. Many residents contact L.G. to voice Trial Exbibit 104 opposition to the xo'ect. Trim Exhibit 130 04/27/04 Hoyt receives a telephone call from L.G. Worming him that she Trial Testimony received over cdghry emails from angry constituents, but refuses to share Ther, with him. Z. (% tells Hoyt that she intends to till -12 dawn the proieci. 06/02104 Holm emails L.G. informing her of his plans io go Forward and Trial Exhibit 113 that he seeks her support. Hours -after leaving the email, Hoyt Trial Exhibit 221 agrees to a "compromise" offifteen stories., and restates the importance of obtaining L.G.'s support. Hoyt does not disclose the Corti rotnise plan with the Ci . . 07/02/04 Mel) blom submits Plaintiffs application. to the Plamiizig Trial Exhibit 123 Commission. Trial Exhibit 124 07/23/04 Mayer requests a meeting with L.G. to discuss Plaintiff's Trial Exhibit 126 proposed project and "to appropriately prepare for the M1721:ea alis Pia Wn Commission on Aug 23rd." 07128/04 L.G'. meets with Mayer to discuss PIaintiff's proposed roiect. 'Trial Testimony 08110/04 L.G. emails Metge stating, V am kind of concerned that CLPC Trial Exhibit 129 didn't oppose the project at 21 stories; this will not help my effort. This looks to zzte like support for the project or at least no 9pposition to.it." 08/18/04 CnD staff report issued recommending denial of Plaintiff's Trial Testimony application, 08/18/04 L.G. emails a constituent, stating, " lam not supportive ofa high- Trial Exhibit 132 rise as 1 do not believe it is in character with the neighborhood (...j In order to deny the applicant's request we need to address the issues that the planning commission is required to review. Please know density is not u for discussion... " 08%19/04 L.G. responds to an email from a consriment who opposed 'Dial Exhibit 13$ Plaintiff's proposed project with the following statements, "... don't even suppoer it �...] Ove want to stop the high-Nse wo should stick to the points the planning commission will evaluate in making their decision,. The Staff did recommend against this proposal. I think the process will work." 08/23/04 the City Planning Commission holds a hearing on Plaintiff's Trial Exhibit 302 application. At the conclusion of that hearing„ the Planning. Corraznission adopts the CPE17 report's rccommt rndatxon of denial. Priox ro Kress lobbies Ostrow on behalf of L.G., to vote against Plaintiff s Trial Testimony Zoning. proposed project, and 22 Sap -16-09 11:59am From -13 DG +6125969149 7-122 P.024/025 F-090 Planning ReariniL 09/07/04 I .G. emails a Summit House resident who opposed Plaintiff's Trial Exhibit 139 proposed project, stating, V have already "come out " against the height of rhe project and was at the planning commission meeting as well. We have Schaff, I'd suggest Lilligren, Zimmerman, Niziolek and Ostrow need calls/contacts." 09/10/04 L.G. emails Mayer, stating, "As usual I am very worried about the Trial Exhibit 140 Z & P minting. I am hoping you cau get a good number of folks. to sllrow up. I will trot really be lobbying anyone on the commitree but I assume you are doing So? At least Lilligren, who you can comer at NRC.1 am hoping to have no problem. with Barret, Seat, Barb, Sanely and Gary of course and I will have a brief chat with Dean: Z prior to the committee meeting. I think me ralking to Paul,, Dan or ,Raberr before the committee might make it worse for us if they think ,l really 'need' their vote gosh knows what they will wantfrom. me. Q 09/13/04 L.G. responds to an email from a neighborhood residerit who Trial Exhibit 142a opposed p'laintiff's proposed project, stating: "I agree with you and I will advocate voc{ `erously against the appeal on Wednesda ,thanks for the e-mail." 09/13/04 L.G. responds to an email from a Sun mit klottse residezii in Trial Exhibit 142b which she states, ".t have not changed byposition and will continue to mpresent the many voices in opposition to the project as proposed." 09/13/04 L.G. ernails the council members sitting on the Zoning, and Trial Exhibit 145 Planning Committee (who were set to hear Plaintif'f's appeal) stating, "This has become an issue of EPIC proportions in Loring basically because of the attitude, actions and behavior of Brad Hoyte, the developer, and the ability of all of the other projects (3) who Have abided by the 6 story, /84 fest height limit in the QR3. This developer has directly and indireerly threatened me, Sr, Mark's Church and metnbers of the community in order to get ; w to take his sido of this application." L.C. ends the email by inviting fellow Council Members to `feel free to talk with me Y of Mis i' nu have quations prior to Wed n.esd ." about an 09/14/04 L.G. responds to several emails from neighborhood residorats who Trial Exhibit 146 opposed the project with a form answer in which she states, Trial Exhibit 147 "Thanks so much for sending this to all of'the mtrnbers of the Trial Exhibit 148 committee, I assure you I will do my best ro advocate against the Trial Exhibit 149 a eat in COMMittee" Trial Exhibit 150 09/15/04 The Zoning and Planning Cor=ittee of the City Council hears Trial Exhibit 304 Plairitifif's appeal of the denial of its application. The Cci=u ttce, by a unanimous five to zero vote (including L.G.'s vote), adopts the findings of C%ED and City Attorney. 09/23/04 1 Plaintiff exercises its option to purchaR6 the property. 23 Sep -18-09 12,00pm From -13 OC +6125969143 7122 P-025/025 F-080 est. 09/24/04 The full City Council hears Plaintiff s appeal of the denial of its Trial Exhibit 305 application. The Council, by a -unanimous thirteen to zero vote Oncltadiag L.G.7s vote) edopts thp, findings of the Zoning and Planniza Committee. 10/12104 L.G. responds to an email from Metge., stating, "Thanks for the. Trial Exhibit 156b eainail, as I might have mentioned to you when I received your last ernail on the Parc Cezatr le project. I shouldn't attend the CLPC meetings as they are outside of the official public hearing. I serve on the Zoning and Planning Commitree which is a quasi judicial process. .If jgot involved prior to the public hearing I could face giving up my right to voce on the issue as the information I would receive would be outside the public hearingprocess.77 17/01104 L.G. responds to an email from a neighborhood resident who Trial Exhibit 160 opposed Plaintiff's proposed project, stating, "As you know, given that X am on the zoniag, Committee I am not supposed to be actively involved in these kinds of issues or 1 might cross the line and forftt (sic) my right to vote an the issue if an when it comes in front of us. Sofirst, st, please do not be spreading the word that I have made up my mind and am working to oppose the variance on this pro. ject. If the developer hears chis they will rightfully question rhat they didn't get a fair hearing with me and that .1 made up my rnlnd prior to the public hearing. I'd also appreciate if you would not encourage people to contact me .about this at this time. 77 24