Minutes

New Brighton Planning Commission

Regular Meeting - May 20, 1997

7:30 p.m.

Call to Order

Larry Baker, Chair, called the meeting to order at 7:30 p.m.

Roll Call

Present:	Larry Baker, Mike Livingston, Jim O'Brien, Norm Schiferl, David Schmitz, Paul Zisla

Absent:	Joann Knuth

Also Present:	Erny Mattila, City Planner

Steve Larson, City Council Liaison

Approval of Minutes

Motion by Schiferl, seconded by O'Brien, to approve the minutes of the April 15, 1997, Planning Commission meeting. 6 Ayes - 0 Nays. Motion Carried.

Report on Council Action

Larson said he had nothing new to report.

Agenda Review

Baker added an item regarding Councilmember of the Month.

Public Hearings

PL-235 & PRD-58	Barry Brottlund

Mattila stated the applicant submitted a letter of withdrawal of his proposal. The applicant indicated the project had problems in terms of engineering and the numbers for the project.

Baker stated that this is a public hearing and asked if anyone wished to speak on the item. Several residents responded.

A resident asked if Brottlund could resubmit the proposal. Baker answered affirmatively. The resident asked if the City notify the neighbors and in what form. Baker answered the residents would be notified. Mattila stated we would publish a notice in the New Brighton Bulletin and residents within 600 feet of the site would be notified by mail.

The resident stated they were not notified this time. Mattila responded that, because the proposal had been withdrawn before the mailing went out, the mailing was canceled. Mattila said he had conversations with a couple of neighbors and informed them of the withdrawal. If Brottlund reapplies, the residents within 600 feet of the site will be notified by mail.

Motion by Baker, seconded by Zisla, to close the Public Hearing. 6 Ayes - 0 Nays. Motion Carried.

Motion by Baker, seconded by Zisla, to accept the applicant's letter of withdrawal for PL-235 and PRD-58. 6 Ayes - 0 Nays. Motion Carried.

LP-324/NC-107/VN-312	Pletscher's Greenhouse

Mattila reviewed the case report concerning a request for site plan review, a nonconforming use permit, and a setback variance to enlarge an existing greenhouse operation.

O'Brien asked what the impact would be on the Eminent Domain proceedings if this variance were denied. Would it affect the settlement?

Robert Lindall, City Attorney, stated he anticipated that the owner will claim that their damages are increased if the variance is denied. However, he did not feel all the possible answers have been covered. For example, we have not explored the possibility that the addition could be added to the east side of the existing sales office and north of the other addition. Three additions are proposed. If the one in the middle were just north of that and east of the sales office, it would not be subject to a variance and it would be adjacent to the existing sales office. Other possibilities may exist.

Baker asked, if the Planning Commission approves the variance and the building is not constructed in the near future, would the variance still be in effect. Lindall responded there is a minimum period during which the building must be constructed or the variance expires. Mattila said the period is six months.

Baker said, in that case, a five-year construction plan is irrelevant to tonight's proceedings. If the Planning Commission approves a variance, it is only valid for six months. The variance would not be binding beyond that period.

Mattila said he thought the City Council could, upon request, extend the variance six months at a time. Mattila said the City Council could put a time period on the variance as to when it would be effective. Mattila stated he would defer to Lindall on this question.

Lindall stated that Section 8-250, Time Limits, states "A special use permit or a variance permit when not used shall expire after 180 days after date of issuance unless written application is for renewal or time extension is received and granted by the City Council prior to the expiration date."

Zisla asked the section states whether the variance takes effect after the Planning Commission's public hearing. Lindall responded no mention is made of that. Zisla asked, if this is a bona fide variance application, are there legal criteria for granting it? Zisla said he did not see the applicant making an effort to make a case in favor of the request. Is there a hardship here? It looks like Mr. Bannigan, the attorney for Pletscher's, has suggested his client ask for a variance he knows we cannot legally grant. Zisla stated he cannot see any legal grounds for granting the variance.

Lindall commented Zisla made a good point. If there is a hearing and all of the documentation would be submitted into evidence, including materials they provided in support of the variance, it would be their burden to show entitlement for a variance. Therefore, Zisla's point is well taken. Zisla asked if the Planning Commission could make a condition of denial that the burden is on the applicant to establish the need for a variance and that our finding is that they have not done so. Lindall answered that would be possible and he understood Zisla's belief that the facts are consistent with that.

Bannigan said he took issue with Zisla's conclusion.

Zisla said the point was that there is no argument here for granting the variance. It is obvious the request does not meet the legal criteria for hardship. It is also evident no effort has been made to demonstrate the hardship, except for the street location.

Bannigan stated the only justification made for this is that the owner already had a plan for expansion and this frustrates the owner's plan. Do not read any more into it than that.

Schiferl said he would like to pursue this issue further with Lindall and Mattila. Two separate issues impact the variance criteria. First is the question on physical characteristics. Typically, that tends to be the actual topography. Is it possible to interpret the fact that the street location affected the physical characteristics of the site? Is a setback line a physical characteristic?

Mattila responded, on a site where there is right-of-way on three sides and there is limited building area available, the Commission could deem that a hardship. Here, the total floor-area ratio is 17%.

Schiferl asked if one could make an argument that physical characteristics could mean a change in setback line. Mattila answered it goes beyond that. It is not just a change in the setback line, but what the change in the setback line does to the property in terms of causing a hardship. In this case, there is ample building area on the site without having to encroach in the setback area.

Schiferl said if we could make an argument that physical characteristics could be construed to be setback. If so, we are saying there is plenty of room and Option A could be moved to any number of places. At some point in the future, we have no idea what this particular business or a business that might come after it would do. It is conceivable that they could run out of space and, at that point, the only place to go would be this 15 to 40 feet. Schiferl said he felt, if that situation occurred, there might be a reasonable basis for a variance in the future.

Baker stated this is a public hearing and asked if anyone in the audience wished to speak on this item. No one responded.

Livingston stated the applicant could put a fence up without a variance. Mattila affirmed Livingston's statement. Livingston asked John Johnson, the consulting civil engineer for Pletscher's, if he brought along the plans from past proposals. Johnson said the original plan was to continue the hip roof and to add to the length of the building with that kind of building. The plan was altered because we perceive, based on the discussions here, that the City will not allow the original plan. It was planned to extend that building out to 15 feet from the property line.

Livingston said, to obtain a variance, an applicant must submit documentation such as site plans and elevations. The Planning Commission needs all that information to make a decision.

Mattila said we did not have floor plans or building elevations that would show us what the proposed additions would look like. However, this is a unique request. Zisla said he recognized Pletscher's difficult position and the Planning Commission wants to look for ways to help maintain Pletscher's as a viable business. A variance may be the key to so doing. There is, frankly, the sense of being manipulated and that is frustrating. Zisla said, without more information, that is not possible.

Baker stated that, if the wholesale business needs to expand to the driveway from the south, putting the addition on the south end of the building would be hard to maintain truck access into it without using Campus Drive. It looks like we are both opposed to and advocating this proposal.

Johnson said there is an overhead garage door on both sides of this building. All the wholesale business before the construction of Campus Drive occurred along the border. Campus Drive allows some of that activity to be moved to this side of the building. The door was the only access to the storage area. Now we can move some of the traffic. We are looking at a site plan that had elements that do not require a variance but on which we are also asking for concurrence. Our suggestion is that the Planning Commission would say, based on what we know tonight, this is what we think should be done. This may become an issue that is resolved by the City Council. Changing the excess of the driveway for truck traffic solves the problem of trucks turning around on the site. It improves the traffic access and shrinks the entrance. The driveway becomes part of the solution.

Baker stated he is concerned about the parking issue. Baker said he could not approve any plan without seeing the parking plan. The nonconformity in the parking must be addressed before anything else can be addressed. If 34 stalls are needed for the existing business, then 34 stalls should be on the site.

Johnson pointed out the area the parking area would have to be moved. That cannot happen because the business needs parking in front of the building to survive. We would like to preserve as many parking spaces as possible. The plan we are suggesting provides 28 of those 34 stall in front of the building. We have not considered the area along the north side because it takes up great space and is part of the parcel adjacent to it. The applicant does not want to expand the asphalt to that area because it moves the customers a long distance from the front door to the business. There is not public access along the side of the building. The side of the building is for product delivery. It would be like bringing your customers to the back door. We are trying to preserve as many parking stalls on the existing parking lot. We do need more than 17 parking spaces in the front of the building.

Baker stated Johnson's comments are irrelevant as to Campus Drive. The parking lot has to be addressed along with any addition to the building. Campus Drive would have no bearing on the parking lot. If the applicant built addition A, the parking lot should be conforming.

Johnson asked if Campus drive would require the relocation of the driveway. Baker responded affirmatively. Johnson stated that, once we relocate the driveway, the whole parking lot is altered. Baker stated that Pletscher's is proposing three new buildings on the site without correcting the nonconforming parking lot.

Johnson said there is a total of 52 feet from the edge of the existing asphalt to the curb sidewalk that exists there today. The 18-foot setback from the existing driveway line to the parking would then become smaller. Johnson said Mattila told them it would be an expansion of the nonconforming use. The stalls work as they are even though they do not meet the parking standards. The 64-foot size is ideal, but other sizes do work.

Baker stated that, if the applicant removed eight stalls on the west side, only four parking stalls would be lost. It would not be much of a hardship to correct the parking nonconformity.

Schiferl asked if Baker meant that, if any of the additions are made, parking would increase. Baker answered no he did not. Baker said that the City could require the applicant to correct nonconforming parking when any building addition takes place. Schiferl asked if the Planning Commission can require the nonconforming parking be brought into compliance, but must we require it?

Mattila said the Planning Commission must require the nonconformity be corrected to the greatest extent practical. Zisla pointed out that "the greatest extent practical" may not be complete conformity.

Mattila said they are proposing a 52-foot parking area. Currently the parking is 18 feet from Old Highway 8 right-of-way. The Planning Commission and the City Council would probably want to maintain that 18 foot landscaped area and not encroach into it any further. It appears that, if the sites were combined, there would be ample area for overflow parking on the site to the north. That looks like the logical area for overflow parking rather than putting it in the Old Highway 8 boulevard.

Schiferl asked if there was a possibility for overflow parking on Campus Drive or is it posted for no parking. Mattila responded Campus Drive is not posted for no parking.

Bannigan said the primary concern of his client is to keep the business viable. Bannigan pointed out the features of the proposal on the site plan. Bannigan said Pletscher's was presenting its future plans in light of the possible condemnation hearing. Holiday parking is very intensive. Pletscher's has 34 parking spaces now and we would only have 28. The applicant wants the curbing to stop at the power pole because 18 wheelers have to come in that area. Bannigan described the uses on the site in detail. Bannigan said if the City requires 18 feet long parking stalls, parking would be forced onto Campus Drive.

Bannigan stated that the parcel of land with the home on the property is a legally separate entity because that parcel of land secures the mortgage on that home. The dwelling is needed, although the site is zoned Light Industrial, because an owner/watchman is required because the greenhouses heating must be monitored all year. Bannigan asked if the Planning Commission had any questions for him.

Zisla asked if Bannigan preferred Option A for the dwelling. Bannigan responded affirmatively. Zisla asked where the property line was before the condemnation. Bannigan responded that property lines never change. Bannigan said the line Zisla was referring to is a side yard line and now it is a street line.

Zisla asked if Pletscher's is proposing to put a building addition at that location or do they just want to know if such an addition would be approved if they ask. Bannigan answered that the Pletschers had a plan that showed the addition as one of their options for development of their site. The Pletschers want to resolve the issue about whether or not that meets the performance standards of this community. Bannigan said a Commissioners asked, if we do not receive approval this evening, will we come back on a hardship. If Pletscher's meets the hardship qualifications, they may do that. What we are saying here is that Pletscher's has the right to make that application. As result of the taking, Pletscher's may not have that right. Zisla asked what the taking was on the south property line. Bannigan responded the taking comes as result of the configuration and pointed out the area on the plan.

Livingston asked about the addition's use. Bannigan responded it would be used for more sales area inside. Livingston asked about the others. Bannigan responded they would also be used as sales areas. Bannigan pointed out which additions would be first. Livingston asked if the Pletschers would consider putting the driveway on Campus Drive and eliminating the one on Old Highway 8. Bannigan said neither the County nor the City has any objection to the driveway plan.

O'Brien asked if the only intent of this variance request is Option A or is the applicant really looking at any possible development down the line? Are you envisioning any other possible developments?

Bannigan said the Pletschers were interested in increasing their retail space. Livingston asked if the plan shows display storage area or future display storage area.

Johnson replied it varies from season to season as to use of that area. Seasonal products are also stored there. The area is currently used for plants. Livingston said he had been shopping at Pletscher's for 25 years and has never seen anything back there. Johnson replied the Pletschers will plant tulips and put a hoop over them in spring when they come up. Livingston said it was really a growing area, not a display area. Johnson answered affirmatively.

Baker asked Johnson what Pletscher wants to do this year. Bannigan answered, once the spring season is over, they intend to finish all the concrete and siting work. Johnson said they intended to do the fence, the driveways to the east and to the south, and redo the parking lot and repair to the parking lot due to watermain break damage.

Baker asked Mattila how the parking lot is configured to get 34 stalls. Mattila said the numbers were provided to the City by Johnson. Baker asked if there was any documentation that there are 34 stalls. Johnson responded that the lot was striped today and there are 34 stalls in front of the building. Baker asked if we have documentation of the 34 stalls and the nonconformity. Mattila replied, as far as staff knows, the lot has always been striped at 16 feet with a 20-foot aisle.

Baker said he had a problem with the parking lot regarding the proposal. Undersized stalls and an undersized drive is creating a problem and we are not addressing the nonconformity there. These stalls should be increased to the proper size. If additional parking is needed for the business, parking should be created on the site.

Livingston asked if the City is requiring the Pletschers to change their parking lot. Mattila responded the City is encouraging them to use that curb cut through to the north because it is dangerous now. The cut is about 5 feet from the Campus Drive curb. The City wants the curb cut moved to the north to comply with the 50-foot setback requirement that the applicant is proposing to do.

Schiferl asked why the Pletschers are not considering parking to the north. Bannigan responded said that was the home site and the Pletschers want to preserve the home nature of that parcel.

Schmitz asked about the fence. Johnson responded the chain link fence is the most secure type of fence. The Pletschers are willing to consider screening the fence with vines. Schmitz asked about opaque fencing. Johnson said the applicant did not know of an opaque fence that would look pleasing after five years. Wood fences require much maintenance. Security is the key reason for the fence. There have been incidents of vandalism on the property recently.

O'Brien asked for clarification of the two curb cuts. Mattila said the city was looking at the curb cuts as an existing use. It is a code requirement to have poured-in-place concrete curbing. The City would encourage concrete curbing if the applicant improves the parking lot. Mattila said the proposed parking lot would be 20 feet from the Campus Drive right-of-way, which would comply with code.

Johnson said they were informed that there will be a distance where there will be no parking permitted. We were also told this was the closest point Pletscher's could have its driveway. This is the only really feasible location for the curb cut and the need for two driveways became important because of traffic access reasons.

Motion by Baker, seconded by Livingston, to close the Public Hearing. 6 Ayes - 0 Nays. Motion Carried.

Baker stated he was not in favor of the Staff recommendation because he had no problem with the variance, but he did not think the site plan addresses the parking adequately.

Livingston said he would abstain from voting because of a conflict of interest.

Zisla suggested the Commission table the request until we have more information or deny the request because of lack of information. Zisla said he still felt there must be a solution to the parking problem.

Livingston asked if the Commission must make a decision on all the items. Mattila said the applicant had requested consideration of the three items. The applicant is looking for the City to document what the Planning Commission would be willing to approve or not approve.

Baker suggested that, if the applicant feels more parking is needed, we should table the request until the applicant can address the parking with the proposed addition. If the applicant feels he will need that much sales space in the future, they must address the parking. The applicant cannot just show the proposed buildings and let the parking resolve itself. Baker said he could not approve a building addition without considering the parking.

Mattila asked if Baker was suggesting the applicant commit to something other than what they are proposing. Baker responded the proposal is unacceptable because it does not address the parking.

Motion by Schmitz to continue the consideration of the request until a later date when more information is provided to the Planning Commission.

The motion died due to a lack of a second.

Zisla said he saw no reason to continue the item and that the Commission should move denial. The parking could be continued because we should come to a solution that enables Pletschers to have a workable site. It may make sense to deny the variance on the grounds the applicant did not provide adequate information, if the ordinance so allows.

Zisla asked Mattila what information is missing that would support denial. Mattila responded we are missing the building elevations, which are typically looked at during site plan review.

O'Brien said we were asking the applicant to change the access to their parking lot. They are proposing to make the modifications to their parking lot within the constraints of the existing parking lot. The Commission could approve this to allow them to get their parking lot in order and hold approval of anything else and possibly require revision of the parking lot at the time they propose an addition on the property.

Zisla asked if that were consistent with denying the variance on the grounds of a lack of information. Baker responded the Commission does not have a proposal for a parking lot to consider. Baker said the proposal was for a building addition and altering the parking lot.

Mattila stated the request is for site plan review, nonconforming use permit and a setback variance to alter the parking lot and construct an addition onto an existing greenhouse facility.

Schiferl said he could see giving Pletscher's approval to make this parking lot change with the understanding that, when they come in with a proposal for an addition to the building, that they might be required to show those parking lot changes on the site plan.

Mattila said Pletscher's could alter the parking lot and make the curb cut movement without Planning Commission approval. It is only when the building additions are proposed that formal review of LP-324 and VN-312 would be required.

Bannigan said that at the time the building permit is pursued, they would have to comply with whatever existing code requirements.

Baker asked whether Pletscher's needed Planning Commission or City Council action to move the curb cut in the existing parking lot since the dimensions of the parking lot are not changed. Mattila responded no action would be needed as long as there was no building expansion.

O'Brien stated, then no Council action is needed to change the curb cut and they may maintain the existing parking lot as it is. Mattila responded affirmatively.

Johnson pointed out the water service failed and the parking lot was dug up and Pletscher's was waiting to do all the work at once. If the applicant moves the curb cut and does nothing else, then there will be no curbing done at all. The owners would not be opposed to just moving the curb cut and leave the parking lot as it is. It was my understanding that both the County and the City wanted both curb cuts altered. That brings up a new issue. The north curb cut is undergoing change.

Mattila pointed out the curb cut is a Ramsey County request. Johnson said that was part of the improvements to Old Highway 8. The important point is that the parking lot needs to be redone as a result of moving the south curb cut and shrinking the north curb cut. Once the applicant does that, we perceive that the rest of the parking lot will be put into as complete a form as possible, which we thought required Planning Commission and Council action. Even though there were no building additions at this point, we thought that had to be documented in a site plan approval process. Johnson stated that perhaps it was not required based on the comments tonight. Johnson said there may have been a misunderstanding on his part and the part of the Pletschers. At the same time, the applicant wants the curb cuts. The curb cuts will be put in and we want to put the parking lot in place and put it to rest as best we can based on the information we have at this time. The building additions are projects that are anticipated. We perceived that, if we are going to document that, we need to have an understanding. If we cannot get that understanding, then we will have to go to whatever options that are available to the applicant. The plan we brought before you tonight gave you all the things we thought we needed to do for the foreseeable future. If there are problems with that, so be it. We would prefer action tonight rather than a tabling because it just puts off the decision. Johnson said he did not know what more he could bring to the Planning Commission other than building elevations of a building we would be building in a year a two. The important thing is that the applicant would like some action tonight and guidance, if it is appropriate.

Mattila said he could perhaps shed some light on these issues. Mattila said he only saw this plan with the building additions proposed. A building proposal naturally brings in the nonconforming use and variance process. The question of moving the curb cuts is strictly an engineering process through Ramsey County and the City's Engineering Department. As long as the curb cut is at least 50 feet from Campus Drive it is acceptable as far as zoning is concerned. Whenever a building addition is proposed, the more formal review processes automatically follow. If the applicant's desire is to move curb cuts, then this becomes an administrative process.

Motion by Baker, seconded by O'Brien, to deny LP-324, VN-312 and NC-107 on the grounds of inadequate information for the Planning Commission to act on the variance and due to the nonconformities in the parking lot.

Zisla asked if this action gives them the information they need for the condemnation hearings. Zisla said he hoped it did not give them such information. Lindall said he would imagine the Pletschers will argue the variance has been denied, but he felt the important thing would be for the Commission to document the fact of the lack of information was the reason for the denial. Lindall said he thought that would significantly undercut the argument that the variance had been denied. Zisla said he felt the Commissioners would give any application with bona fide information provided a fair hearing and judge such an application on the merits. However, what we have before us is not ready to be decided.

Livingston said the applicant had not provided us with the current plans. Baker stated that the Commission could approve an addition only to have new codes, such as the handicap requirements, take effect before the addition is built and that could alter the conditions under which the approval was given.

O'Brien said he was going to vote on the information that was provided to the Commission at this time. He would not be voting on any future plans.

Zisla stated he would only vote on the request because the applicant will not withdraw the application. If the applicant wants to withdraw and get a full hearing at some later date, he would like to see that. However, the applicant's attorney seems to want to force an issue so he has something to take to the condemnation hearing. Zisla said he did want the Pletschers to be able to fix their parking lot to serve their customers. Zisla said he did not want to get involved in speculation about what might happen so that someone can make an arguement at a later date.

Baker called for a vote on the motion. 6 Ayes - 0 Nays. Motion Carried.

General Business

Sign Plan Amendment	151 Silver Lake Road

Mattila outlined the case report concerning an amendment to a sign plan for an existing commercial building.

Motion by Baker, seconded by Zisla, to recommend approval of the proposed sign plan amendment. 6 Ayes - 0 Nays. Motion Carried.

LP-326	U.S. Screen

Mattila reviewed the case report concerning an application for site plan review to construct two storage units on an existing industrial building.

Motion by Baker, seconded by O'Brien, to recommend approval of LP-326. 6 Ayes - 0 Nays. Motion Carried.

Announcements and Updates

Memo from the City Manager Regarding Council Member of the Month

Baker asked for a volunteer from the Planning Commission to serve as Council Member of the Month for July. The Commission members were unavailable for July. Larson said he would see if a Planning Commissioner could serve later.

Larson introduced Ruth Mason, the Council Member of the Month for May. Ms. Mason is a member of the Cable Commission.

Adjourn

Motion by Baker, seconded by Livingston, to adjourn the meeting. 6 Ayes - 0 Nays. Motion Carried. The meeting was adjourned at 9:30 p.m.

_______________________________________

Erny Mattila, City Planner