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HomeMy WebLinkAboutPlanning Commission - 01/09/2017 AGENDA EDEN PRAIRIE PLANNING COMMISSION Monday, January 9, 2017 - 7:00 P.M. PLANNING COMMISSION John Kirk, Jon Stoltz, Charles Weber, Travis Wuttke, Ann MEMBERS: Higgins, Andrew Pieper, Ed Farr, Mark Freiberg, Tom Poul STAFF MEMBERS: Julie Klima, City Planner; Rod Rue, City Engineer; Matt Bourne, Manager of Parks and Natural Resources I. PLEDGE OF ALLEGIANCE --ROLL CALL II. APPROVAL OF AGENDA III. MINUTES A. Approval of the Minutes for the December 12, 2016 meeting IV. INFORMATIONAL MEETINGS V. PUBLIC MEETINGS A. ERS ESTATES APPEAL OF STAFF DETERMINATION Location: 12551 Beach Circle Request for: • Appeal of staff determination that the legal non-conforming status of a second dock located at 12530 Beach Circle has ceased VI. PUBLIC HEARINGS A. CODE AMENDMENT-TOWERS AND ANTENNAS Request to: • Amend the City Code Chapter 11 relating to Cell Towers and Antennas. VII. PLANNERS' REPORT VIII. MEMBERS' REPORTS IX. CONTINUING BUSINESS X. NEW BUSINESS XI. ADJOURNMENT ANNOTATED AGENDA TO: Planning Commission Members FROM: Julie Klima, City Planner RE: Planning Commission Meeting for Monday, January 9, 2017 MONDAY, January 9, 2017 7:00 PM, COUNCIL CHAMBERS I. CALL THE MEETING TO ORDER II. PLEDGE OF ALLEGIANCE-ROLL CALL III. APPROVAL OF AGENDA MOTION: Move to approve the agenda. IV. APPROVAL OF MINUTES A. PLANNING COMMISSION MEETING HELD MONDAY, DECEMBER 12, 2016 MOTION: Move to approve the Planning Commission minutes dated December 12, 2016. V. INFORMATIONAL MEETINGS VI. PUBLIC MEETINGS A. ERS ESTATES LAKE ACCESS &DOCK Request for: • Appeal of staff determination that the legal non-conforming status of a second dock located at 12530 Beach Circle has ceased. At the December 12, 2016 meeting, the Commission, acting as the Board of Adjustment and Appeals, held a public meeting on an appeal of staff determination. The staff determination was that a dock located at 12530 Beach Circle serving property at 12551 Beach Circle had lost its non-conforming use status. After hearing information presented by staff, the appellant, and nearby property owners, the Commission voted to direct staff to prepare findings and an order upholding staff's determination. Findings of fact, conclusions and order have been prepared consistent with the Commission's direction. The City Attorney has also provided a memorandum to the Planning Commission regarding Commission members that were absent from the December 12 meeting and voting on the draft findings. MOTION: Move to approval of Final Order 2016-18 to uphold the staff determination. ANNOTATED AGENDA January 9,2017 Page 2 VII. PUBLIC HEARINGS A. CODE AMENDMENT-TOWERS AND ANTENNAS Request to: • Amend the City Code Chapter 11, Sections 11.27, 11.28, 22.29 and 11.36 relating to antennas and towers as a permitted use in the Town Center, Airport Commercial, Airport Office and Gold Course Zoning Districts. The FCC Act of 1996 established antennas and towers are a permitted use in all cities and may not be discriminated against by zoning districts established in cities. In 1996 the City Code was amended to permit towers and antenna in all zoning districts and created Section 11.06 entitled"Towers and Antennas"which regulates the use of antennas and towers in all zoning districts. The Town Center, Airport Commercial, Airport Office and Gold Course Districts were created after 1996. In review of the permitted uses in those districts it was noted that towers and antennas, as a permitted use, were inadvertently not included at the time of the districts inception. This Code Amendment is a house keeping item to ensure City Code is in alignment with the Federal Communications Commission(FCC) Act of 1996. Staff recommends approval. MOTION 1: Move to close the public hearing. MOTION 2: Move to recommend approval to amend City Code Chapter 11 to permit antennas and towers as a permitted use in the Town Center, Airport Commercial, Airport Office and Golf Course Zoning Districts and based on the information included in the staff report dated January 4, 2017. VIII. PLANNERS' REPORT IX. MEMBERS' REPORT X. CONTINUING BUSINESS XI. NEW BUSINESS XII. ADJOURNMENT MOTION: Move to adjourn the Planning Commission meeting. UNAPPROVED MINUTES EDEN PRAIRIE PLANNING COMMISSION MONDAY,DECEMBER 12, 2016 7:00 P.M., CITY CENTER Council Chambers 8080 Mitchell Road COMMISSION MEMBERS: Jon Stoltz, John Kirk, Travis Wuttke, Ann Higgins, Charles Weber, Andrew Pieper, Ed Farr, Mark Freiberg, Tom Poul CITY STAFF: Julie Klima, City Planner Rod Rue, City Engineer Matt Bourne, Manager of Parks and Natural Resources Julie Krull, Recording Secretary I. PLEDGE OF ALLEGIANCE—ROLL CALL Acting Vice Chair Farr called the meeting to order at 7:00 p.m. Kirk, Pieper, Stoltz and Weber were absent. II. APPROVAL OF AGENDA MOTION: Higgins moved, seconded by Freiberg, to approve the agenda. Motion carried 5-0. III. MINUTES A. PLANNING COMMISSION MEETING HELD ON NOVEMBER 14, 2016 MOTION: Freiberg moved, seconded by Higgins, to approve the Planning Commission Minutes. Motion carried 5-0. IV. INFORMATIONAL MEETINGS V. PUBLIC MEETINGS VI. PUBLIC HEARINGS A. ERS ESTATES LAKE ACCESS & DOCK Location: 12551 Beach Circle Request for: PLANNING COMMISSION MINUTES December 12, 2016 Page 2 • Appeal of staff determination that the legal non-conforming status of a second dock located at 12530 Beach Circle has ceased Klima said this is an appeal of staff determination. In this instance, the dock operates as a non-conforming use status. Earlier this year, the property owner at 12551 Beach Circle sought confirmation from City Staff that the non-conforming use of a second dock serving property not abutting the lake remained as a protected non-conforming use. The history on this is in 1965, the property was sold by the original developer along with a non-exclusive easement over the southeasterly 20 feet of the property located at 12530 Beach Circle for the purpose of access to Bryant's Long Lake and for the purpose of maintaining a dock on the shore. The property remained under the same ownership until 2005 when it was sold to ERS Development LLC. As part of the 2005 transaction, the deed conveyed the 12551 Beach Circle property along with the non-exclusive easement noted above. The 1965 easement document allowed for the placement of a dock at the 12530 Beach Circle property. The owners of 12530 Beach Circle also have installed a dock to Bryant Lake from their property resulting in two docks on this parcel. The use of the second dock has been a non-conforming use since at least 1996, when the City Code regulations were adopted limiting docks only to lots abutting the lakeshore and limiting docks to one per lot. ERS Development states that the property at 12551 Beach Circle has been vacant since its purchase in 2005 and that there has been no use of the access easement or dock. Klima stated City Code Section 11.75 states the following with regard to non- conforming uses, "Non-conforming uses may be continued, including through repair, replacement, restoration, maintenance or improvement, but not including expansion,unless the following conditions apply: A. A non-conforming use is discontinued for a period of more than one year; or B. The non-conforming use is destroyed by fire or other peril Klima said ERS Development states that the use has not been continued since purchase of the property in 2005, ERS Development alleges that there was no intent to abandon the non-conforming use. Klima stated the City has been in conversation with the City Attorney, Richard Rosow. Staff recommends that the staff determination that the non-conforming status of the dock located at 12530 Beach Circle serving the property at 12551 Beach Circle has ceased be upheld. Mr. Rosow said the MN State Statue involved in this determination is 462.357 and uses the same language as the City Code, which was amended in September of 2005 to use the language that is in the state statute. The property owner has a right to appeal and the Commission has to provide findings supporting its decision. The Commission should direct staff to prepare findings to either sustain the staff decision or overrule the staff decision. The next Planning Commission meeting staff would bring back findings and a written order. PLANNING COMMISSION MINUTES December 12, 2016 Page 3 Klima said in the packet there is a letter from a homeowner and a golden rod sheet that is in front of Commissioners from the homeowner at 12535 Beach Circle for the record. Acting Vice Chair Farr asked the appellant to come forward to discuss the determination of City Staff. Peter Beck, attorney speaking on behalf of Dr. Elmer Salovich, came forward to discuss the determination. He stated there was a letter from him in the Commissioner's packet. Mr. Beck said they disagree with the City's decision and pointed out it would take hundreds of thousands of dollars away from the sale of this property. He also stated he has an issue with the 2006 staff report. There is nothing in the staff report stating"continually". When Dr. Salovich bought the property he was under the assumption he could have a dock on his property and now it is not reasonable that this dock be taken away. This is a property owner that has invested a lot of money in his property and because he was not living there it is wrong that he should not be able to have a dock there. This constitutes property value loss as there was a prospective buyer for the property that has recently pulled his offer because of this. Dr. Elmer Robert Salovich introduced himself and said he is the sole owner or ERS Development, which is the sole owner of 12551Beach Circle, which is legally described as Lot 2, Block 1, ERS Estates. He read to the Commissioners his letter that was in the packet. He stated he purchased Lot 10, Block 1, The Cove, which includes the home at 12551 Beach Circle in 2005 for$952,937. The deed to this lot included a nonexclusive easement over the southeasterly 20 feet of Lot 8, Block 1. He pointed out he did have a discussion with the City after the purchasing of Lot 10, Block 1. He asked them what size decks could fit in that area. He was told it would be the same requirements as the other homeowners that live around the lakes. Mr. Salovich explained to the City that his main concern was to rehabilitate the house, and once the house was done he would put in a dock. Mr. Salovich said the final cost of renovation was $1,198,662. To recover some of the costs in 2006 he subdivided Lot 10, Block 1 into two parcels. Mr. Salovich pointed out that at that time, or since, did anyone from the City tell him that in order to maintain the dock rights recognized in the 2006 staff report that it would be necessary to put a dock in the lake each year, even though the property was vacant. Mr. Salovich said to date; he has not been able to sell Lot 1, Block 1, ERS Estates, which does not have any access or dock rights to the lake. Lot 2, Block 1, ERS Estates, with the renovated home, had a potential buyer but he has since pulled out because of the uncertainty of the right to install a dock and hearing that City Staff took the position that the lot does not have the right to a dock. Mr. Salovich reiterated again that no one from the City told him he had to put in a dock in a certain amount of time. City Staff stated when he is ready to install the dock, come in and they will help with the size. If the City takes the deeded right to install a dock on the lake, he said he will incur an additional loss of$400,000 or more. PLANNING COMMISSION MINUTES December 12, 2016 Page 4 Heather Hanson, of 5090 Kelsey Drive, Edina, is Mr. Salovich's realtor. She said when they put the property up for sale; they had a lot of interest in the property and had one potential buyer, being contingent that the dock be allowed to be put in. Freiberg asked if the offer is currently on the table. Ms. Hanson said they did withdraw the offer. Mr. Beck stated the home has not been marketed without the dock rights. Wuttke asked how much the house is marketed for. Mr. Beck said approximately$950,000 with dock rights, but the buyer who is here tonight can verify the amount. Wuttke asked if a market study was done for the value without the dock rights. Mr. Beck said they have not asked Ms. Hanson to come up with a listing price without the dock rights because they thought they had them. Wuttke asked if there have been any offers for the lot that does not have dock rights. Mr. Beck said it is listed at$325,000 and they have had no offers on it; $308,000 is what Hennepin County assessed it at. Wuttke asked what the County assessed the other property at. Mr. Beck said they had not re-assessed it since the improvements were made so pre-completion they assessed it at $550,600. Mr. Beck said they would not be here if they did not feel it was a several hundred thousand dollar issue. They are not disagreeing that there was a period of over a year without a dock there; they just do not believe the City has a right to take it away because there was not intent to abandon the use as the owner was just renovating it. Wuttke asked why it had taken the City Attorney's office so long to send Mr. Beck the letter dated June 29, 2016, that was included in the packet. Mr. Beck said he had just received the letter last week and has not had an opportunity to respond. Mr. Rosow said this letter initially went to City Staff as an attorney client confidential letter. Klima asked if the attorney client privileges could be waived and have this letter included in the Commission packet. Mr. Rosow said they took the confidentiality notation out of the letter and sent it out but did not change the date the letter was prepared. Mr. Beck said the issue is not the date of the letter but the loss of the dock rights to Mr. Salovich. Acting Vice Chair Farr opened the meeting up for public input. Mark Eckstein, of 7213 Monardo Lane, Eden Prairie, said he is the prospective buyer and made an offer back in April under the assumption he would have dock rights. He stated they have recently withdrawn their offer because of the issue with the boat dock. He also pointed out he is the one that asked that the dock rights be verified. Wuttke asked if he would have made an offer without dock rights. Mr. Eckstein said he would not of because of the cost of the property. Bruce Paradis, of 12530 Beach Circle, came forward and said he submitted an email in the packet. He stated the easement runs along 20 feet of his property. He said in 2006, when the property was subdivided, he assumed a third property was going to be created. The reason there was not a third easement was because he and the neighbors had to pay Dr. Salovich not to create an easement on the third parcel of PLANNING COMMISSION MINUTES December 12, 2016 Page 5 property. He stated this property has been a mess for the past 10 years. He has offered to purchase the property but Dr. Salovich said he had too much money invested in it. Prior to 10 years ago, the dock was actually abandoned and he and his neighbor had to pay to get rid of it When the property became listed, he wanted to sit down with Dr. Salovich and the realtor and talk about the easement, but they did not seem too enthused. Mr. Paradis said he supports Staff decision even though he owns a portion of this land with the easement. Wuttke asked Mr. Paradis what he means by abandoned easement. Mr. Paradis said the parcel created in 2006 is not covered by the easement. Mr. Paradis recently purchased the property at 12550 Beach Circle and intends to have the easement rights for that lot eliminated. Wuttke asked what abandon means. Mr. Rosow said abandon means an intention under law to release your rights. In the case of the easement, if it was unused for a long time, it could mean abandon. Mr. Rosow pointed out in this situation we are not talking about the issue of the easement itself or the access rights but rather discussing the use of the dock. David Stein, of 6741 Beach Road, said he have lived there since 1991. He is not in favor or opposing what Dr. Salovich is stating, but may add clarification for the decision tonight. Mr. Stein said he has a dock that is conforming and he uses rail systems to take out his pontoon and boat. He stated if one were to look in the area at 12530 Beach Road and the lot next to it, there is not much room for docks in that area and a rail system may help. Laura Helmer, of 6941 Beach Road, said she would like the Commission to sustain the City Staff decision. Mr. Beck said he would like to respond to a few things. In 2006, Dr. Paradis did not challenge the Staff report decision that there was the right for another dock, What is new to all, is the dock that was there was not taken out by the previous owner or Dr. Salovich, but rather Dr. Paradis and the question to ask is if it will still have the same affect or depriving the owner of dock rights. In regards to Dr. Paradis, Dr. Salovich and Ms. Hanson meeting, he was not there and it was an unsuccessful meeting. Freiberg said he is looking at the letter that is in the packet and wants to know if the homeowner was ever notified of the time frame. Mr. Rosow said they do not notify homeowners. He stated at the time of the subdivision there was not a year that had been lapsed, so the use was non-conforming at that time. Freiberg asked how the homeowner would know the clock is ticking on a discontinued decision. Mr. Rosow said the rules were changed and the homeowner is responsible to know of the changes. PLANNING COMMISSION MINUTES December 12, 2016 Page 6 Acting Vice Chair Farr said From the standpoint of the City duty, he asked Mr. Rosow to clarify. Mr. Rosow said the City must make published notices in the newspaper for amendments to City Code and that satisfies laws for due process. Freiberg said he understands the legality of what Mr. Rosow is saying but he does not agree with it. Higgins asked that the properties that could have used docks prior to these changes, did everyone use them? She specifically was interested if the Turner property had a dock. Mr. Paradis said he has lived at his property for 25 years and the Turners lived there while he has been there and he said there was a dock there and a pontoon boat tied to it but he believes it was the neighbor's pontoon as the Turners were elderly. Mr. Paradis said as point of clarification, he stated they did not remove the dock from the lake but rather removed it from the lake as it floated down into their property. Acting Vice Chair Farr asked if there could be a lack of maintenance with this situation. Mr. Rosow said he did not believe the act of maintaining would affect the decision tonight. Acting Vice Chair Farr asked the Commissioners to address the topic of duty to discover, and pointed out due diligence is usually taken on by the buyer. Wuttke said the duty to discover should rely on the buyer, but the seller's agent should let them know if anything has changed. It should be put on both the buyer and seller to get that information. Klima commented that non-conforming issues that were revised in 2005 were for all uses and not just docks, and Staff routinely provides education when the public calls in. Acting Vice Chair Farr said the appellant felt like no one notified him in 2006, so what could he have done differently. Klima said at the time the property was subdivided, a year had not passed, so the use was protected under non-conforming status at that time. Wuttke commented in regard to burden of proof to the land owner, what constitutes use. Mr. Rosow stated if the dock was out in the water it constitutes use, regardless if anyone is using it. Acting Vice Chair Farr asked the Commissioners stand on this topic. Wuttke asked if the Commission is charged with coming up with findings this evening. Acting Vice Chair Farr stated they are to come up with findings this evening. Mr. Rosow stated it is helpful to have findings articulated tonight, so staff can use that information to draft findings for the commission to consider at its next meeting. Acting Vice Chair Farr said he will summarize his opinion. Based on the discussion tonight he feels the duty lies in the purchaser and he is in favor to sustain the City's decision. Poul said he supports Staff's decision. Higgins said she agrees with Acting Vice Chair Farr and Poul. She stated in this instance, where property owners have access to the body of water, it seems that they buyer should be looking PLANNING COMMISSION MINUTES December 12, 2016 Page 7 into the findings of the property and it should also be reasonable to fall on the person renovating this property. Freiberg said he has a hard time with the fact that over the 10 year time frame, there was no communication between the City and the homeowner. Just publicizing it in the paper is not enough and based on that Freiberg stated his vote is to overturn the decision of City Staff. Wuttke said he is leaning to overturning this decision also. The easement has been memorized since 1964 to present with this property and others in this area. The reason for this easement is to hold a boat dock on the shore. Wuttke said he understands the City Code's reasoning to limit the number of docks on a parcel of property, but when thinking about easement rights the future valuation of the property should be taken into account. The removal of the easement would depreciate the valuation of the property. Acting Vice Chair Farr said the Commission is to make a motion to uphold or overturn Staff's determination and to direct Staff to report findings accordingly. Mr. Rosow said the Commission could make a motion to direct preparation of findings in support of Staff decision or preparation of findings in overruling Staff s decision. Wuttke stated his concern is the other Commission members missing from tonight's meeting and the next meeting they will not have heard what was discussed this evening and may not make a decision based on the information discussed. Acting Vice Chair Farr said he would like to make a decision this evening. The other Commission members concurred. MOTION: Poul moved, seconded by Freiberg, to direct Staff to prepare findings to uphold the determination of Staff that the non-conforming status of a dock located at 12530 Beach Circle serving property at 12551 Beach Circle has ceased. Motion carried 3-2. Freiberg and Wuttke objected. VII. PLANNERS' REPORT A. 2017 PLANNING COMMISSION WORK PLAN Klima said the next Planning Commission meeting will be January 9th, 2017. Klima said in regards to the 2017 Work Plan, Staff is proposing a work plan to include educational or policy discussions which may occur if there are not development applications to review at a particular meeting. She stated she is looking for the approval from the Commission to approve this plan. Higgins asked, in regards to item C, is this different than what has been done in the past? Klima said that is part of the City's By-laws and has not changed. MOTION: Wuttke moved, seconded by Freiberg, to approve the 2017 work plan. Motion carried 5-0. PLANNING COMMISSION MINUTES December 12, 2016 Page 8 VIII. MEMBERS' REPORT IX. CONTINUING BUSINESS X. NEW BUSINESS Wuttke commented he would like to see internal conversations in regards to the issues that transpired this evening. XI. ADJOURNMENT MOTION: Wuttke moved, seconded by Higgins, to adjourn the Planning Commission meeting. Motion carried 5-0. Acting Vice Chair Farr adjourned the meeting at 9:05 p.m. STAFF REPORT: TO: Planning Commission FROM: Julie Klima, City Planner DATE: January 4, 2017 SUBJECT: Appeal of Staff Determination regarding non-conforming use status BACKGROUND At the December 12, 2016 meeting, the Commission, acting as the Board of Adjustment and Appeals, held a public meeting on an appeal of staff determination. The staff determination was that a dock located at 12530 Beach Circle serving property at 12551 Beach Circle had lost its non-conforming use status. After hearing information presented by staff, the appellant, and nearby property owners, the Commission voted to direct staff to prepare findings and an order upholding staff's determination. Findings of fact, conclusions and order have been prepared consistent with the Commission's direction and are attached for the Commission's consideration. Also attached is a communication from the City Attorney to the Planning Commission regarding Commission members that were absent from the December 12 meeting and voting on the draft findings. STAFF RECOMMENDATION Staff recommends that the Commission approves Final Order#2016-18 upholding the staff determination. ATTACHMENTS 1. Final Order#2016-18 including findings of fact and conclusions 2. City Attorney Memo concerning Voting on Findings When Absent from Prior Meeting 3. Letter from Peter Beck, representing the Property Owner g:\planning\projects\active files\boa-zoning appeal 12551 beach cir\staff report 1.04.17.docx EXHIBIT B Area Location Map - ERS Development LLC Eden Prairie, MN Bryant Lake Beach Road 0 12530 Beach Circle J / 494 Parcel created / in 2006 N 0 115 230 .0 Feet 111 [ 11111 MEMORANDUM TO: Planning Commission FROM: Richard Rosow, City Attorney DATE: December 16, 2016 RE: Voting on Findings When Absent from Prior Meeting Our File No.: 1610.658 On December 12, 2016, the Planning Commission, acting as the Board of Adjustment and Appeals, held a public hearing and voted to adopt a motion directing staff to prepare findings in support of its determination that ERS Estates discontinued a nonconforming use. At the next meeting on January 9, staff will present the findings to the Commission for approval. Only 5 of the 9 members of the Planning Commission were present for the December 12 meeting. The question is whether those commissioners who were absent on December 12 may vote on the findings at the next meeting. Minnesota law gives public bodies the power to regulate their own meeting procedure. Minn. Stat. § 412.191, subd. 2. Under the City Code, Commission meetings are to be governed by the open meeting law and Robert's Rules of Order, a widely used manual on parliamentary procedure. City Code § 2.22, subd. 7. The Minnesota Court of Appeals approved the participation of an initially absent council member in later reconsideration of a vote on a subdivision and site plan review. Chanhassen Estates Resident's Ass'n v. City of Chanhassen, 342 N.W.2d 335 (Minn. 1984). McDonald's applied for these approvals which did not require a public hearing before the City Council. A motion to approve failed on a 2-2 vote, with one member absent. At the next meeting the member who was absent from the prior meeting, moved to reconsider the McDonald's application at a subsequent meeting. At the subsequent meeting the motion to approve the application passed by a three to two vote. The Court considered the propriety of the Council's reconsideration. The issue here was whether the motion should have been reconsideration or waiver of rules. The Court refused to exalt form over substance and did not disqualify or even question the absent member's voting at the either of the two subsequent meetings. Robert's Rules of Order addresses voting in the context of providing that a member may vote to approve the minutes of a prior meeting even if the member was absent from the prior meeting. Based on these authorities, it is my opinion that commission members who were absent from the December 12 meeting may vote on the findings presented on January 9, 2017. I recommend that the absent members review the materials presented and watch the recording of the December 12th meeting prior to the January 9th meeting. ZONING APPEAL#2016-18 CITY OF EDEN PRAIRIE PLANNING COMMISSION FINAL ORDER 2016-18 APPLICANT: ERS Development LLC c/o Peter Beck OWNER: ERS Development, LLC c/o Peter Beck ADDRESS: 12551 Beach Circle, Eden Prairie, MN OTHER DESCRIPTION: Lot 2, Block 1, ERS Estates APPEAL REQUEST: • To allow the continuance of a non-conforming use for a second dock serving property not abutting a lake. City Code permits one dock per abutting lot. The Board of Adjustments and Appeals for the City of Eden Prairie at a regular meeting thereof duly considered the above petition and after hearing and examining all of the evidence presented and the file therein does hereby find and order as follows: 1. All procedural requirements necessary for the review of said appeal have been met. (Yes X No N/A). 2. Appeal 2016-18 is: upheld overturned 3. Findings of fact and conclusions are attached as Exhibit A. 4. This order shall be effective fifteen days after the decision of the Board of Adjustment and Appeals or on January 24, 2017. 5. All Board of Adjustments and Appeals actions are subject to City Council Review. BOARD OF ADJUSTMENTS AND APPEALS N/A=Not Applicable BY: Andrew Pieper—Vice Chair Date: 01-09-17 EXHIBIT A-FINDINGS AND CONDITIONS THE PLANNING COMMISSION OF THE CITY OF EDEN PRAIRIE FINDINGS OF FACT, CONCLUSIONS AND ORDER RE: SECOND DOCK AT LOT 8, BLOCK 1, THE COVE FOR THE BENEFIT OF LOT 2, BLOCK 1,ERS ESTATES 12551 BEACH CIRCLE FINDINGS: 1. ERS Development and its owner Dr. Elmer Salovich (collectively referred to herein as "Petitioner") have appealed a decision by City staff that the nonconforming right to install and maintain a dock on Lot 8, Block 1, the Cove for the use of Lot 2, Block 1, ERS Estates has been discontinued and that the use and occupancy of a dock as a nonconforming legal use has terminated. 2. City adopted ordinance 17-2005, effective on September 15, 2005, which amended City Code Section 11.75 to state in relevant part: Subd. 1. Non-conforming uses may be continued, including through repair, replacement, restoration, maintenance or improvement, but not including expansion, unless: A. A non-conforming use is discontinued for a period of more than one year; The City Code amendment follows Minn. Stat. Section 462.357, Subd le, which states that a nonconforming use or occupation of land may be continued, including through repair, replacement, restoration, maintenance, or improvement, but not including expansion, unless:(1) the nonconformity or occupancy is discontinued for a period of more than one year. 3. Lot 10, Block 1, The Cove was acquired by Elmer Salovich on November 30, 2005 from Barbara Turner. The deed provides for the conveyance of Lot 10, Block 1, The Cove "Together with a non-exclusive easement over the Southeasterly 20 feet of Lot 8, Block 1, The Cove,for the purposes of access to Bryant's Long Lake and for the purpose of maintaining a boat dock on the shore thereof" The deed is attached as Exhibit A and made a part hereof. 4. On June 20, 2006 Petitioner was granted final plat approval to subdivide Lot 10, Block 1, The Cove into Lot 1, Block 1 and Lot 2, Block 1, ERS Estates. 5. An Area Location Map identifying Lot 2, Block 1, ERS Estates as 12551 Beach Circle; Lot 8, Block 1, The Cove as 12530 Beach Circle; and Lot 1, Block 1, ERS Estates as Parcel Created 2006 is attached as Exhibit B and made a part hereof. 6. The staff report dated March 10, 2006 relating to the preliminary plat approval of ERS Estates stated: The existing lot has an easement to the lake across a property to the northeast and a dock. This dock is non-conforming. The use of this dock may continue. In order to have a dock a lot must abut the lake. The proposed second lot is not entitled to an additional dock on the lake. The staff report is attached as Exhibit C and made a part hereof. 7. A house and garage were present on Lot 2, Block 1, ERS Estates at the time of platting. Petitioner informed the Planning Commission that Petitioner had taken out building permits for renovation of the house over time. Exact dates were not given. City records disclose that subsequent to the subdivision of Lot 10, 18 building permits for various improvements to the house on Lot 2, Block 1, ERS Estates were issued. Two (2) permits were issued in 2006; two (2) permits were issued in 2009; one (1) permit was issued in 2013 and two (2) permits were issued in 2014. Eleven (11) of the eighteen (18) permits were issued in 2015. A list of the permits issued, as reflected in the City's files is attached as Exhibit D and made a part hereof. 8. Petitioner has not had a dock located on the shore of Lot 8, Block 1, The Cove beginning in 2006. 9. Petitioner asserts that the failure to locate a dock on the shore of Lot 8, Block 1, The Cove, did not indicate an intention to abandon the use of the property for a dock. 10. In 2016 Petitioner entered into a purchase agreement to sell Lot 2, Block, 1, ERS Estates. 11. The purchaser requested that Petitioner confirm that a second dock was still an allowable use on Lot 8, Block 1, The Cove for the benefit of Lot 2, Block 1, ERS Estates. 12. On May 23, 2016 Peter Beck, Petitioner's attorney, submitted a letter to the City Planner requesting a decision from the City as follows: "For these reasons, we request that the City provide formal confirmation that the nonconforming use rights of the Property recognized by the City in 2006, to access Bryant Lake via the 20 foot easement over Lot 8, Block 1, The Cove, and to install a dock on the Lake, remain."The letter is attached as Exhibit E and made a part hereof. 13. On June 29, 2016 the City Attorney provided an opinion to the City Planner concluding that: A property owner is permitted to continue a nonconforming use unless such use is discontinued for a period of more than one year. The property owner's intent surrounding its failure to use the nonconformity is irrelevant, as is whether the use was "abandoned. "Salovich has not used the easement to maintain a dock on Bryant Lake for ten years. It is our opinion that Salovich has discontinued the nonconforming use and that any future use of the Property must conform to the Code. Because it does not abut the lake, the Property may not maintain a dock on the lake. The City should decline to provide the `formal confirmation" requested by ERS. The City may instead inform ERS/Salovich that the property has lost its legal nonconforming use status by virtue of discontinuance of the nonconforming use for a period of more than a year. The letter was attorney-client privileged but the City elected to waive the privilege and release the letter to Petitioner and as part of the Planning Commission agenda packet shortly before the December 12, 2016 Planning Commission meeting. A copy of the letter is attached as Exhibit F and made a part hereof. 14. The City Planner concluded that the nonconforming right to install and maintain a dock on Lot 8, Block 1, the Cove for the use of Lot 2, Block 1, ERS Estates had been discontinued and that the use and occupancy of a dock as a nonconforming legal use had terminated. 15. On June 22, 2016 the City Attorney sent Mr. Beck, Petitioner's attorney, an email in response to Mr. Beck's inquiry, informing Petitioner of the City Planner's conclusion and stating that: I have reviewed the letter you sent and the cases and law. I have just this morning advised City staff that in my opinion the property has lost its legal non-conforming status for the dock use as a result of the discontinuance for more than a year of this use. I was going to give you a more "formal" reply in letter format but understand your need for a prompt reply today. 16. On October 11, 2016 Petitioner's attorney filed an appeal of the City Planner's decision. The letter is attached as Exhibit G and made a part hereof. 17. On December 12, 2016 the Planning Commission, acting in its role as the Board of Adjustments and Appeals, heard the appeal of Petitioner. 18. Prior to the meeting the Petitioner submitted his written statement, a copy of which was included in the meeting agenda packet for the Planning Commission and is attached as Exhibit H and made a part hereof. 19. The Planning Commission heard from the City Planner who explained the background on the prior nonconforming use. 20. The Planning Commission heard from the City Attorney who explained his letter to the City Planner dated June 29, 2016. The City Attorney explained that prior to the amendment of the City Code effective September 15, 2005 intent to abandon had been a determining factor in whether a nonconforming use could continue. The City Attorney further explained that the amendment to the City Code effective September 15, 2005 removed the intent to abandon standard and replaced it with a discontinuance standard. The City Attorney explained that the current standard in both City Code and State Law as to whether a nonconforming use can continue is whether or not the nonconforming use was discontinued for a period of more than one year. 21. Peter Beck, attorney for the Petitioner, addressed the Planning Commission. Mr. Beck told the Planning Commission that Petitioner never intended to abandon the use of the dock as a nonconforming legal use. Mr. Beck stated that the dock was a deeded property right that could not be taken without compensation. He stated that the loss of the dock would cost Petitioner hundreds of thousands of dollars. Mr. Beck also stated that there is nothing in the staff report [March 10, 2006] that says there had been a dock there continually. 22. The Petitioner read his written statement and made additional comments to the Planning Commission. The Petitioner stated that he purchased Lot 10, Block 1, The Cove (in 2005) for $952,937; that reconstruction of the house on Lot 2, Block 1, ERS Estates took much longer than expected due to numerous factors; that the final cost for the renovation of the house on Lot 2, Block 1, ERS Estates ended up being $1,198,662; that his total investment in Lot 10, Block 1, The Cove (now Lots 1 and 2, Block 1, ERS Estates) was $2,118,154. Petitioner further stated that he never intended to abandon the dock; that no one from the city told him in connection with the subdivision in 2006 or at any time since then that it would be necessary to put a dock in the lake each year, even though the property was vacant, in order to maintain the dock rights recognized in 2006 staff report. Petitioner stated that from 2006 until 2016 no one had been living on the property(Lot 2) and there was no need to incur the additional cost of putting a dock in and out each spring and fall. Petitioner stated that when he purchased Lot 10, Block 1, The Cove, in 2005 he did so on reliance that he had a legal right as the property owner to install a dock. Petitioner further stated that he had been unable to sell Lot 1, Block 1, ERS Estates or Lot 2, Block 1, ERS Estates. Petitioner stated that if he was unable to install a dock on the lake he will incur an additional loss on Lot 2, Block 1, ERS Estates of$400,000 or more. 23. The real estate agent for Petitioner addressed the Planning Commission as to the marketing and interest in the sale of Lot 2, Block 1, ERS Estates and stated that the property would sell for less if it did not have dock legal nonconforming use rights. 24. Several other individuals spoke before the Planning Commission. Mr. Beck spoke again and stated that he believed the law required the showing of the property owner's intent to abandon in order to lose a nonconforming right. 25. In response to discussion by the Planning commission, the City Attorney explained that both City Code and State Law had amended the standard from abandonment to discontinuance. The City Attorney indicated that the Haefele case from 2000 involving the City of Eden Prairie occurred prior to the amendment to City Code. Cases since the amendment to City Code have held that intent to abandon is no longer relevant because the standard had been amended to discontinuance. 26. Mark Eckstein, the party who had entered into a purchase agreement to purchase Lot 2, Block 1, ERS Estates from the Petitioner addressed the Planning Commission. He stated that he had been advised by friends living on Lake Riley to inquire about the status of the dock for the benefit of Lot 2, Block 1, ERS Estates. When a decision about the dock did not occur within the contingency period the purchase agreement lapsed. Mr. Eckstein stated that he would not purchase the lot without the right to a dock at the current price. 27. Bruce Paradis, property owner of Lot 8, Block 1, The Cove addressed the Planning Commission stating that he was in favor of upholding the City Planner's decision. Mr. Paradis stated that at least ten years ago a dock and lift was not removed from the lake and came into a state of disrepair. Mr. Paradis stated that the dock was pushed out of the lake and up onto his property by ice. Mr. Paradis repeatedly requested that the owner of Lot 2, Block 1, ERS Estates remove the dock from his property. When no response was received Mr. Paradis removed the dock from his property. 28. In response to discussion by the Planning commission, the City Attorney addressed the amendment of the City Code which revised the standard to discontinuance. The City Attorney explained that when a text amendment such as this was adopted notice of the amendment would be published in the paper and a public hearing held. The law then places the burden on the property owner to perform due diligence in regards to zoning amendments. The City Attorney also noted that the amendment occurred in September 2005, the purchase of Lot 10, Block 1, the Cove in November 2005 and the subdivision in 2006. 29. Robert Carlson submitted a written statement. Mr. Carlson stated he has been the property owner at 12535 Beach Circle since 2005. Mr. Carlson stated he was in support of the zoning department decision regarding use of the easement. Mr Carlson stated the easement borders his property for which there has not been any activity since purchasing his lot and that any addition of docks/boats to a limited shore area would create a hazard with additional boats using this area. 30. The Planning Commission asked questions of the Petitioner, the property owner of Lot 8, Block 1, The Cove, the City Planner, the City Attorney, and the proposed purchaser. CONCLUSIONS: a. The right to maintain a dock on Lot 8, Block 1, The Cove for the benefit of Lot 2, Block 1, ERS Estates granted by deed dated November 30, 2005, was a legal nonconforming use in 2005. b. The Petitioner admits that he ceased the use of a dock on Lot 8, Block 1, The Cove for the benefit of Lot 2, Block 1, ERS Estates from 2006 until the present. c. The legal nonconforming use and occupancy of a dock on Lot 8, Block 1, The Cove for the benefit of Lot 2, Block 1, ERS Estates terminated pursuant to Minnesota Statutes Section 462.357 Subd, le and City Code Section 11.75 for lack of use and occupancy for over one year. d. Intent to abandon a use or occupancy is not a legal criteria under State law or City Code to determine whether a legal nonconforming use terminates. ORDER: The Planning Commission hereby upholds the decision of the City Planner that the use and occupancy of a dock on Lot 8, Block 1, The Cove for the benefit of Lot 2, Block 1, ERS Estates as a nonconforming legal use has terminated. BECK LAW OFFICE Peter K Beck 4746 shericiar,Ave.S. Attorney a t Law Lt" 6 i2-S91-135(1 Minneapolis,MN 55410peter@peieri3eokraw.coIr January 5,2017 Planning Commission City of Eden Prairie 8080 Mitchell Road Eden Prairie, MN 55344 Re: ERS Estates Lake Access and Dock Rights Dear Planning Commissioners: This letter is to follow up on the December 12, 2016, hearing before the Planning Commission on the appeal of Dr. Elmer Salovich from a staff determination that the deeded right of Lot 2,Block 1 ERS Estates to place a dock on Bryant Lake has been taken by the City. We will focus on the following three issues which came up at the December 12, 2016, Planning Commission hearing on Dr. Salovich's appeal: (1) Whether Dr. Salovich undertook the appropriate due diligence following the acquisition of his property; (2) Whether Dr. Salovich ever discontinued use of the dock on his property; and (3) Whether the City can or should take this property right from Dr. Salovich. (1) Due Diligence During the December 12, 2016, hearing, the Planning Commission Chair and other Commissioners stated and/or implied that Dr. Salovich's "unfortunate" circumstances regarding the dock are the result of his failure to do his due diligence when acquiring the property. We think it important to clarify the due diligence that Dr. Salovich did undertake,and the failure of the City to advise him,despite several opportunities to do so,that the City was about to take his dock rights. At the December 12, 2016, hearing, the City Attorney advised the Planning Commission that the City amended its nonconforming use ordinance in September 2005 to eliminate a requirement that the City show an intent to abandon a nonconforming use right before taking that right. Dr. Salovich acquired his property in November 2005. The property he acquired included "a nonexclusive easement. . . for the purpose of access to Bryant's Long Lake and for the purpose of maintaining a boat dock on the shore thereof." Dr. Salovich testified, in paragraph 3 of his statement(attached) and his testimony to the Planning Commission,that after he acquired the property in November of 2005, he met with the Planning Commission City of Eden Prairie January 5. 2017 Page 2 City regarding his plans to renovate the home on the property. He asked specifically about the dock and the size of the dock allowed. He was told by City staff that the property had the same dock rights and requirements as any other property on the lake and that he should return when he was finished with his renovation of the property and knew what he wanted to do with respect to the dock. He was not told about the ordinance amendment adopted two months earlier that would take his right to a dock if he did not continuously keep a dock on the property. Approximately two months later, in early 2006, Dr. Salovich applied to subdivide the property he had acquired. City staff supported this request, noting that the property had an easement to the lake and a dock and that, "the use of this dock may continue." There was no mention in the staff report, and no mention to Dr. Salovich at the time, that the dock right recognized in the staff report would be taken by the City if a dock was not continuously kept on the property. In fact,despite Dr. Salovich's direct inquiry at the time he acquired the property,the City's knowledge that he intended to renovate the property,and the City's opportunity to note in its 2006 staff report that the dock rights recognized in that staff report would terminate if a dock was not continuously kept on the property, Dr. Salovich was not advised for another 10 years, in 2016, of the City's position that the 2005 ordinance had taken his deeded dock rights. The City Attorney's position is that Dr_ Salovich had notice of the 2005 ordinance amendment because the ordinance was amended two months before he purchased the property and he is charged with knowledge of that amendment. To be clear,Dr. Salovich had no actual notice of the ordinance amendment. This is not like a rezoning or other land use approval where there is a mailed note to the affected property owners. The only "notice" was a published notice in the City newspaper. What Dr. Salovich did do was meet with the City to specifically ask about the dock. He was told the requirements for the dock were the same as for any other dock. He was not told he would lose his rights to a dock if he did not continuously keep a dock on the easement while the home was vacant and being renovated. The question is, what more could or should Dr. Salovich have done. He specifically asked City staff a question and was not told of the recently-adopted ordinance amendment and its impact on his dock rights. We believe Dr. Salovich did do his due diligence and that the City did have a duty, if not when Dr. Salovich inquired about the dock rights after acquiring the property,then certainly when the City recognized his dock rights in the March 10, 2006, staff report, to tell him of the recent ordinance amendment which would take his property rights away if he did not continuously keep a dock on the property while the property was unoccupied and undergoing renovation. (2) Discontinuance Dr. Salovich not only never intended to abandon or discontinue his dock rights, he did, in fact,not discontinue his dock rights. Planning Commission City of Eden Prairie January 5,2017 Page 3 During the December 12, 2016, Public Hearing the City Attorney advised the Planning Commission that if there had been a dock on the shore at any time that would have been use of a dock. There is no dispute that there was a dock on the property when Dr. Salovich acquired the property. There is also no dispute that Dr. Salovich did not remove the dock and therefore never discontinued the use. A third party,Mr. Paradise, who now seeks to have Dr. Salovich prevented from replacing the dock, removed the dock. Dr. Salovich did not remove the dock and did not discontinue the use. (3) Taking, The City amended its nonconforming use ordinance in 2005 to make it easier for the City to take private property rights, by eliminating the requirement that the City show an intent to abandon a property right before the City takes that right. The results of this amendment can be dramatic—even more dramatic than they are in Dr. Salovich's case. For example, if the owner of a duplex that was legally constructed in an area subsequently rezoned to single family uses only were to spend more than 365 days to remodel and re-rent his second unit, or if it simply takes a year to find a new tenant,the second unit will be taken by the City. This is exactly what happened to Dr. Salovich. As much as one-half the value of his property has been taken because his neighbor took his dock and Dr. Salovich did not replace it while he was renovating his property and it was unoccupied. We do not believe this result is reasonable or constitutional. Even if the City can take property rights under these circumstances, it should not. More importantly, if the City does take this property right,it will have to compensate the property owner for taking that right. The Planning Commission used terms like "unfortunate circumstances" regarding Dr. Salovich's situation. We believe it is worse than that. What the City is attempting to do to Dr. Salovich represents government at its worst. The City is taking as much as one-half the value of Dr. Salovich's a property on the grounds of an obscure ordinance that the City could have, on at least two occasions,advised Dr_ Salovich about, but did not. Instead of telling Dr. Salovich that his dock rights were at risk, the City continued to issue building permits as Dr. Salovich invested over $1 million in the property in reliance on the dock rights recognized by the City in 2006. As Dr. Salovich testified in paragraph 15 of his statement, this money would not have been spent if he did not have the right to a dock. For these reasons,we request that the Planning Commission reject the proposed resolution denying Dr. Salovich's appeal, grant the appeal and protect his property rights_ Planning Commission City of Eden Prairie January 5,2017 Page 4 Very truly yours, PETER K. BECK ATTORNEY AT LAW PLLC By: �--- Peter K. Beck PKB:tk cc: Dr. Elmer Salovich,ERS Development LLC Attachment: STATEMENT OF DR. ELMER SALOVICH STATEMENT OF DR. ELMER SALOVICH 1.. I am the sole owner of ERS Development, which is the sole owner of 12551 Beach Circle, which is legally described as Lot 2, Block 1 ERS Estates. 2. I purchased Lot 10,Block 1,The Cove, including the home located at 12551 Beach Circle, in 2005 for$952,937. The deed to Lot 10,Block 1, The Cove included: . . . a nonexclusive Easement over the southeastly 20 feet of Lot 8, Block I, The Cove, for the purpose of access to Bryant's Long Lake and for the purpose of maintaining a boat dock on the shore thereof 3. Following my purchase of Lot 10,Block 1,I met with City of Eden Prairie planning staff to talk about the size of the dock allowed. I was told that the legal requirements for the dock were the same as those for any other lake in the state of Minnesota. I explained to the staff that my chief concern at that time was to rehabilitate the house,as no one would be using the dock until the house was rehabilitated_ 4. l subsequently began renovating the home, which was uninhabitable when I acquired Lot 10. This renovation project took much longer than expected,nearly ten years, for a number of reasons. The final cost for the renovation ended up being $1,198,662, for a total investment in Lot 10,Block 1, The Cove,to date, of over$2,1 50,000. 5. To recover some of my costs for Lot 10 and renovation of the home, in 2006, I subdivided Lot 10, Block 1, The Cove, into two parcels, Lot 1 and Lot 2, Block 1, ERS Estates. The staff report on that subdivision request stated: The existing lot has an easement to the lake and across a property to the northeast and a dock. The dock is nonconforming. The use of this dock may continue. In order to have a dock, a lot must abut the lake. The proposed second lot is not entitled to an additional dock on the lake. 6. No one from the City told me, in connection with the subdivision request in 2006, nor at any time since then, that in order to maintain the dock rights recognized in the 2006 staff report it would be necessary to put a dock in the lake each year, even though the property was vacant. 7. It would never have occurred to me that failing to put a dock in the lake each year while the property was vacant would result in the loss of the deeded right to access the lake and maintain a dock on the shore thereof. It was always my belief that I had a legal right,as the owner of the property, to install a dock whenever I wanted to and that the right to access the lake and install a dock was a property right that went along with purchase of the property. 8. To date I have not been able to sell Lot 1, Block 1, ERS Estates, which does not have any access or dock rights to the lake_ 9. I have also been unable to sell Lot 2, Block I, ERS Estates, with the renovated home, because of the uncertainty regarding the right to install a dock. I had an offer earlier this year for the property, but it was contingent on confirming the right to install a dock. This offer was revoked when City staff took the position that the lot does not have the right to a dock. 10. When I purchased Lot 10, Block 1, The Cove, in 2005, I did so on reliance on the lake access and dock rights granted by the deed. 11. When I invested an additional $1,198,662 in the property to renovate the home, I did so in reliance on the lake access and dock rights granted by the deed and confirmed by the City when I subdivided Lot 10 in 2006. 12. Renovation of the home was ongoing from 2006 until 2016. at which time I began my efforts to sell the property. Throughout this time period, there has been no one living on the property and,therefore,no need to incur the additional cost of putting a dock in and out each spring and fall. 13. I have never intended to abandon or give up the rights to access or maintain a dock on the lake, which are property rights granted in my deed and confirmed by the City in 2006. 14. If the City takes my deeded right to install a dock on the lake, I will incur an additional loss on this property of$400,000 or more. 15. I believe that my renovation of what was a dilapidated home on the property at 12551 Beach Circle has improved the neighborhood significantly. I would never have incurred the cost of this renovation unless I had been assured, by the deed of the property and the 2006 staff report at the time I subdivided the property, that I have the right to access the lake and maintain a dock. Elmer Salovich, M.D. 3 STAFF REPORT TO: Planning Commission FROM: Steve Durham, Planner II DATE: January 4, 2017 SUBJECT: Code Amendment-Antennas and Towers BACKGROUND: The Federal Communication Commission Act of 1996 established that antennas and towers are a permitted use in all cities and may not be discriminated against by zoning districts established in cities. To accommodate this new mandate the Eden Prairie City Code was amended in 1996 to permit antennas and towers in all zoning districts. City Code Section 11.06"Towers and Antennas" was incorporated into code in 1996 to regulate and accommodate the use of Antennas and Towers for the communication needs of residents and businesses while protecting the public health, safety and general welfare of the community. PROPOSED CODE CHANGE: Several new Zoning Districts have been added in recent years and include Town Center (TC), Airport Commercial (A-C), Airport Office (A-OFC) and Golf Courses (GC). The provision for antennas and towers as a permitted use in these districts was not included in initial code amendments. This code amendment is a house keeping item to add as a permitted use antennas and towers in above identified zoning districts as required by Federal law. City Code Section 11.06 entitled"Antenna and Towers"regulates the use of antennas and towers in all zoning district within the City. Highlighted in red are the areas of the City Code that will include antennas and towers as a permitted use. The City Code will be amended to read as follows: City Code Chapter 11, Section 11.27, Subd. 5 is hereby amended by removing the existing Table 1: Permitted Uses in the Town Center District and inserting the following table: Table 1: Permitted Uses in Town Center District(Permitted=P,Accessory=A) Use TC-MU TC-R TC-C Commercial Neighborhood commercial P Community commercial P Restaurants and food service w/o drive-thru facilities P P Business and professional offices and clinics A' P Hotels P Antennas and Towers,in those locations and subject to P the limitations contained in City Code Section 11.06. Residential Staff Report—Antennas and Towers January 4, 2017 High-rise multiple-family attached dwelling units with P minimum gross density of 60 units per acre Mid-rise multiple-family attached dwelling units with P minimum gross density of 40 units per acre Antennas and Towers,in those locations and subject to P the limitations contained in City Code Section 11.06. Mixed-Use Mid-rise multiple-family attached dwelling units w/ P ground floor retail/restaurant/services2 Multi-story office w/ground floor P retail/restaurant/services2 Antennas and Towers,in those locations and subject to P the limitations contained in City Code Section 11.06. Public Public Infrastructure P P Libraries P P Parks P P P Transit facilities P P City Code Chapter 11, Section 11.28, Subd. 2 is hereby amended by inserting the following: C. Antennas and Towers, in those locations and subject to the limitations contained in City Code Section 11.06. City Code Chapter 11, Section 11.29, Subd. 2 is hereby amended by inserting the following: D. Antennas and Towers, in those locations and subject to the limitations contained in City Code Section 11.06. City Code Chapter 11, Section 11.36, Subd. 2 is hereby amended by inserting the following: B. Antennas and Towers, in those locations and subject to the limitations contained in City Code Section 11.06. STAFF RECOMMENDATIONS: Staff recommends approval of the amendment to City Code,Chapter 11,Section 11.27 Town Center, Section 11.28 Airport Commercial, 11.29 Airport Office and Section 11.36 Golf Course as represented in the Staff Report of January 4, 2017. 2 PROJECT PROFILE - JANUARY 9, 2016 PLANNING COMMISSION - JANUARY 9, 2017 1. ERS ESTATES LAKE ACCESS & DOCK (2016-18)by ERS Development LLC (JULIE) Application to appeal staff determination regarding non-conforming status of a dock Location: 12551 Beach Circle Contact: Peter Beck 612-991-1350 Request for: • Appeal of staff determination that legal non-conforming status has ceased Application Info Planning Commission City Council Date Submitted 10/11/16 Notice to Paper Date N/A Notice to Paper Date 00/00/16 Date Complete 11/01/16 Resident Notice Date 11/21/16 Resident Notice Date 00/00/16 120 Day Deadline 02/28/17 Meeting Date 12/12/16 1st Meeting Date 00/00/16 Initial DRC review 10/13/16 2nd Meeting Date 00/00/16 2. CODE AMENDMENT RELATED TO TOWERS AND ANTENNAS (2016-20) (STEVE) Public Hearing amending City Code, Chapter 11,relating to Cell Towers and Antennas Contact: Steve Durham, 952-949-8491 Application Info Planning Commission City Council Date Submitted 12/05/16 Notice to Paper Date 12/22/16 Notice to Paper Date 00/00/17 Date Complete N/A Resident Notice Date N/A Resident Notice Date N/A 120 Day Deadline N/A Meeting Date 01/09/17 1st Meeting Date 00/00/17 Initial DRC N/A 2nd Meeting Date review CITY COUNCIL CONSENT - JANUARY 17, 2017 1. PRESTIGE DAYCARE (2016-12)by Shingobee (ANGIE) Proposal to construct a daycare facility Location: 15219 Pioneer Trail—Southeast Quadrant of Mitchell/Spring Rd&Pioneer Trl Contact: Stacy Gleason 763-479-5647 Request for: • Site Plan Review on 3 acres of un-platted land within the 35 acre parcel of Metropolitan Airports Commission(MAC) owned property Application Info Planning Commission City Council Date Submitted 08/26/16 Notice to Paper Date 10/26/16 Notice to Paper Date 11/16/16 Date Complete 09/13/16 Resident Notice Date 10/28/16 Resident Notice Date 11/18/16 120 Day Deadline 01/11/17 Meeting Date 11/14/16 1st Meeting Date 12/06/16 30 Day Extension 03/11/17 2nd Meeting Date 00/00/16 Initial DRC review 09/01/16 1 CONSERVATION COMMISSION - JANUARY 10, 2017 PLANNING COMMISSION - JANUARY 23, 2017 1. CODE AMENDMENT RELATED TO BUILDING HEIGHT DEFINITION (2017-01) (JULIE) Public Hearing amending City Code, Chapter 11,relating to Building Height Definition Contact: Julie Klima, 952-949-8489 Application Info Planning Commission City Council Date Submitted 01/04/17 Notice to Paper Date 01/05/17 Notice to Paper Date 00/00/17 Date Complete N/A Resident Notice Date N/A Resident Notice Date N/A 120 Day Deadline N/A Meeting Date 01/23/17 1st Meeting Date 00/00/17 Initial DRC review N/A 2nd Meeting Date HERITAGE PRESERVATION COMMISSION - JANUARY 23, 2017 CITY COUNCIL CONSENT - TBD 1. PRAIRIE BLUFFS SENIOR LIVING(2015-17)by Albert Miller (BETH) Proposal to develop a 3 and 4 story, 138 unit senior housing and assisted living project Location: 10217, 10220, 10240, 10280 Hennepin Town Road and two additional parcels (PID 36-116-22-11-0026 & 36-116-22-11-0003) Contact: Albert Miller—612-386-6260 Request for: • Guide Plan Change from Low Density Residential and Office to High Density Residential on 4.74 acres. • Planned Unit Development Concept Review on 4.74 acres • Planned Unit Development District Review with waivers on 4.74 acres • Zoning District Change from Rural and Office to RM-2.5 on 4.74 acres • Site Plan Review on 4.74 acres • Preliminary Plat of six lots into one lot and one outlot on 4.74 acres Application Info Planning Commission City Council Date Submitted 07/13/16 Notice to Paper Date 08/04/16 Notice to Paper Date 09/22/16 Date Complete 08/02/16 Resident Notice Date 08/05/16 Resident Notice Date 09/23/16 120 Day Deadline 01/30/17 Meeting Date 08/22/16 1st Meeting Date 10/4/16 Initial DRC review 07/28/16 2nd Meeting Date 2 IN BUT NOT SCHEDULED 1. SOUTHWEST STATION PUD AMENDMENT (2015-23)by SW Metro Transit Commission (JULIE) Proposal for additional parking structure at southwest station Contact: Julie Klima, 952-949-8489 Request for: • Planned Unit Development District Review with waivers on 11.38 acres • Zoning District Amendment within the Commercial Regional Service Zoning District on 11.38 acres • Site Plan Review on 11.38 acres Application Info Planning Commission City Council Date Submitted 00/00/15 Notice to Paper Date 11/19/15 Notice to Paper Date 12/17/15 Date Complete 00/00/15 Resident Notice Date 11/20/15 Resident Notice Date 12/18/15 120 Day Deadline 00/00/15 Meeting Date 12/07/15 1st Meeting Date 01/05/16 Initial DRC review 00/00/15 2nd Meeting Date 2. HY-VEE CONVENIENCE STORE (2016-11)by Hy-Vee, Inc. (BETH) Proposal to construct a 7,905 square foot convenience store with gas pumps and drive thru for a coffee shop Location: Northwest corner of the intersection of Pioneer Trail and Hennepin Town Road. Contact: John Brehm—515-267-2800,jbrehm@hy-vee.com Request for: • Planned Unit Development District Review with waivers on 3.96 acres • Site Plan Review on 3.96 acres • Preliminary Plat to combine one lot and one outlot on 3.96 acres Application Info Planning Commission City Council Date Submitted ' 08/26/16 Notice to Paper Date 00/00/16 Notice to Paper Date 00/00/16 Date Complete 00/00/16 Resident Notice Date 00/00/16 Resident Notice Date 00/00/16 120 Day Deadline 00/00/16 Meeting Date 00/00/16 1st Meeting Date 00/00/16 Initial DRC review 09/01/16 2nd Meeting Date 00/00/16 3 3. KOPESKY 2ND ADDITION (2016-19)by HTPO (ANGIE) Proposal for an 8 lot single family subdivision Location: 18340 82nd St W. Contact: Charles Howley—952-829-0700 Request for: • Planned Unit Development Concept Review with waivers on 4.14 acres • Planned Unit Development District Review with waivers on 4.14 acres • Zoning District Change from Rural to R1-13.5 on 4.14 acres • Preliminary Plat of one lot into 8 lots on 4.14 acres Application Info Planning Commission City Council _ Date Submitted 10/28/16 Notice to Paper Date 00/00/16 Notice to Paper Date 00/00/16 Date Complete 00/00/16 Resident Notice Date 00/00/16 Resident Notice Date 00/00/16 120 Day Deadline 00/00/16 Meeting Date 00/00/16 1st Meeting Date 00/00/16 Initial DRC review 11/03/16 2nd Meeting Date 00/00/16 4. CEDARCREST STABLES (2016-21)by Pemtom Land Company(BETH) Proposal for a 17 lot single family subdivision Location: 16870 Cedarcrest Drive. Contact: Dan Blake—952-937-0716 Request for: • Zoning District Change from Rural to R1-13.5 and R1-9.5 on 10.65 acres • Preliminary Plat of one lot into 17 lots on 10.65 acres Application Info Planning Commission City Council Date Submitted 12/09/16 Notice to Paper Date 00/00/16 Notice to Paper Date 00/00/16 Date Complete 00/00/16 Resident Notice Date 00/00/16 Resident Notice Date 00/00/16 120 Day Deadline 00/00/16 Meeting Date 00/00/16 1st Meeting Date 00/00/16 Initial DRC review 12/15/16 2nd Meeting Date 00/00/16 APPROVED VARIANCES TELECOMMUNICATION PROJECTS 4