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HomeMy WebLinkAboutBoard of Adjustments and Appeals - 03/20/1975 Approved 4-17-75 MINUTES BOARD OF APPEALS AND ADJUSTMENTS MEETING . Thursday, March 20, 1975 7:30 P.M. , City Hall Members Present: William Bye Tom Cebulla Don Sorensen Jim Wedlund Staff Present: Wayne Sanders Ed Sherman Dick Putnam I. MINUTES OF MEETING HELD FEBRUARY 27, 1975. Sorensen moved to approve minutes of February 27, 1975 as published, Bye seconded. Motion carried unanimously. II. Parking variance for Eagle Enterprises, Inc. on proposed building at Northwest corner of Highway #5 and County Road #4. Messrs. Dell Einess and Lance Norderhus appeared before the Board to explain their request for the parking variance and answer any questions by Board members. Mr. Norderhus stated their shopping center will have 82,000 sq. ft. of which 74,000 will be leased. Under Ordinance 141, an amendment to Ordinance 135, the parking requirement is 8 parking spaces per 1,000 sq. ft. of gross floor area. They are requesting 5.51 parking spaces per 1,000 • sq. ft. of gross floor area and 6.0 parking spaces of gross leaseable area. Eagle Enterprises submitted a survey of parking provided at local shopping centers with the average being about 5.5 parking spaces per 1,000 sq. ft. of gross floor space and 6 parking spaces per 1,000 sq. ft. of gross leaseable floor space. Also, they noted in their report that Homart will be providing 5.5 parking spaces per 1,000 sq. ft. of gross leaseable space and Edenvale Plaza Shopping Center will be providing 5.7 parking spaces per 1,000 sq. ft. of gross leaseable space. Mr. Norderhus presented the Prairie Village Mall (Plan A) to the Board and explained the proposed landscaping, access, etc. Sorensen - any change in this plan than the one presented to the Planning Commission? Norderhus - yes, more landscaping. If the landscaping were eliminated in the parking lot, there would be more parking available. Sorensen - concerned about entrance on Highway #5 and cross-over traffic. Will there be any trees? Putnam - no entrance directly off #5. Norderhus - there will be 8 foot trees, but landscaping plan is not final as of yet. Sorensen - please give reasons for withdrawing PUD from Planning Commission and Council. Were you motivated to withdraw the PUD because of the Council not approving the 4/5 STUDY? Did action of Planning Commission have anything to do with the withdrawal? Norderhus - doesn't think so, decided to do this in October of last year. We didn't qualify under the PUD for acreage. s Board of Appeals and Adjustments -2- March 20, 1975 II. Parking variance for Eagle Enterprises, Inc. (cont.) Sorensen - you are saying grant us this variance and we will build this way, otherwise, we will build it the other way" (Plan B which meets parking and minimum landscaping requirements, but is a "strip" mall) . Norderhus - right. Wedlund - what about purchasing additional property? Norderhus - we do own adjacent property, but have no plans for it at this time and the property they are requsting a variance on is already zoned commercial. Sorensen - are you aware the church may be willing to sell some property? Norderhus - no, in talking to Dr. Peterson, was told they are going to build a sanctuary on that property. Bye - do you have access to the memo dated March 19, 1975 of the staff and would your company be willing to incorporate into your plans enlargement of the buffer area along Highway #5. Norderhus - has seen memo and are willing to incorporate into plans. Bye - stated his concern about small trees being planted which would not break up area, type of earth form to block view of center from Highway #5, and what about angle parking - is it better? Norderhus - trees will be 8 feet, "landscaping not finalized yet and yes, angle parking is better - particularily for women shoppers. Wedlund - concerned about parking in the future and if it will spill into church lot? Norderhus - there is natural grade separation. Sorensen - stated this should be placed on next agenda of Planning Commission meeting as under state law, the representative from the Planning Commission can act on their behalf and request this matter be referred to them for review with the Planning Commission to submit a report to the Board of Appeals and Adjustments within 60 days. Putnam - cannot see why City requires 8 parking spaces per 1,000 sq. ft. of gross area. City granted 5.5 to ,Homart and about 5.7 to Edenvale Plaza and this seems to be a reasonable standard. If variance is to be granted, thinks the recommendations of the staff memo of March 19, 1975 should be incorporated. Would prefer to see attractive landscaping rather than blacktop. Would cause no hardship on City as there is not other place to park, but the parking lot being proposed for the Center. Sorensen moved that this matter be continued to April 17, 1975 so the Planning Commission can give this matter its consideration and submit recommendations to the Board of Appeals, Bye seconded. Bye, Sorensen and Wedlund voted "aye" and Cebulla "nay". Motion carried. Some discussion followed the motion regarding the "what ifs" concerning the 4/5 STUDY. Sorensen stated he felt this was an important decision and felt the Commission should act on it. Einess - will Commission act on it or are you going to recommend they not act? Sorensen - the commission will make a recommendation. III. Continuation of hearing for Phoenix Petroleum Co. - 8855 Flying Cloud Drive. Wedlund - stated the Board had received the reports from Messrs. Sanders and Sherman as requested at last meeting. Board of Appeals and Adjustments -3- March 20, 1975 III. Continuation of Hearing for Phoenix Petroleum Co. - 8855 Flying Cloud Drive (cont.) Noteboom - (attorney representing Phoenix Petroleum) understood Board was interested in the cost of intended repairs as related to this property. We are prepared to submit a professional appraisal of property and series of bids for the repairs necessary to meet Code. Mr. Noteboom presented the appraisal to Chairman Wedlund along with the repair bids and pointed out corrections on the appraisal. Noteboom - appraisal is on present state of property. Sorensen - present value $24,450? Noteboom - stands corrected appraisal is after necessary repairs. Wedlund - Paraghaph 2 of appraisal states it is based on all repairs, construction, etc. being completed. Noteboom - he values property from income approach. To extent the appraisal is not clear, will supply any additional information to clear matter. He is submitting an appraisal based on cost approach, income approach, and capitalization approach. The appraisal is based on cost approach. There is no mention of market approach. Sorensen - $9,023 in repairs to be made to main station building? Noteboom - to main building and garage. Revised estimate does not break down between the buildings. Submitted infor- mation for Board's consideration, but does not understand how value of repairs is relative to Board's consideration of permitted use. Wedlund - Board is interested in present value under existing conditions simply to find out if it was worth repairing. Also, are weighing in their minds now it takes 50% of value to bring it up to Code, then it does not meet Code. Noteboom - would like clarification of the Code - how does this apply to our situation? Sorensen - under zoning ordinance, can have routine maintenance, but not alterations, improvements, etc. If this building is subject to demolition, it is a factor to be considered. Sanders read Section 203 of the Building Code Ordinance to the Board. Sorensen explained repairs are permitted, but not reconstruction. Noteboom - reference to 50% is perhaps income reference, no existing statute concerns this particular situation. Section 104 applies. Bye - why the repair question when property was abandoned? This does away with non-conforming use and it cannot be put back into non-conforming use by repairing. Conditions were not met so non-conforming use ended. Noteboom - if there has been a legal abandonment here, repairs can't solve problem. Does not think abandonment has occurred. First Board has to take issue as to whether there was abandonment and if not, then must come to the question of repairs. Issue of rapairs comes only after Board concludes property was abandoned. Wedlund - what happened to proposed Mansard roof. Noteboom - have given Board bids which would make repairs only to meet Code. Wedlund - what about furnace? Friedman - someone stole furnace after they were stopped from repairing station. Received bid from Sears for $169 for new furnace installed. Sorensen - asked for figures for repair now and also at point where repairs were halted by City. Dealing with property from both aspects. Noteboom - only trying to provide information Board requires. Sherman - Items 11 and 15 on repair bid are not in accordance with Health Code. Epoxy paint does not meet Code, has to be tile. Noteboom - do you want supplemental bid for tile in bathrooms? • Board of Appeals and Adjustments -4- March 20, 1975 III. Continuation of Hearing for Phoenix Petroleum Co. - 8855 Flying Cloud Drive (cont.) Wedlund - Mr. Sherman in your letter of March 1973, you stated 9 violation tags were issued by City. Sherman - yes the Fire Marshall issued those. Chief Hacking asked that tags for violations be forgiven as business was closed.. Sherman - requested City Appraiser to make estimate of value on front building and he appraised it at $2,000 and $1,500 to demolish. Sorensen - Board's duty to determine questions regarding valuation of buildings. Also, at present time, zoning requires a minimum use set back of 35 feet and the vehicles using the pumps on this property could be 6 feet from property line. This may be a variance from zoning ordinance. Noteboom - this would affect a structure that has a non-conforming use now? Sorensen - no, but would apply when you apply for repairing and opening and City received appli- cation for repairs to building in August of 1974. Sanders - Mr. Sherman made thorough study of building and I've submitted a chronological report of things that have occurred in relation to this property. It is beyond routine maintenance. Building has dilapidated. Wedlund - Mr. Putnam stated the only alternative is for Phoenix Petroleum to apply for rezoning to bring it into conforming use. This should have been done back in 1968. Does not know what this would involve and if it is even possible. Noteboom - sense from comments being made that Board is sort of concluding what they want to do. Unnecessary for me to reargue questions of abandonment, and trust Board to be fair in reviewing information submitted. We are here to • do our best to satisfy you as a Board and City of Eden Prairie and would like to do responsible job of operating property for mutual good of us, individually, and citizens of Eden Prairie. We want to operate attractive service station on that location in responsible manner. Have commenced some repair work with permission such as removing car bodies, boarding windows, etc. Feels Board would prefer station not be there in any state of repair. Are looking for reasons why it ought not to be there. Is there something we are not aware of as to why the City does not want them to operate this property? Would be contribution to community and wants whole decision viewed in that context. Bye - I think that the legal opinion of the Attorney for Eden Prairie is that the non-conforming use has been abandoned. Is this a continuation of non-conforming use or is it really applying for an initial non-conforming use. Tend to view legal opinion which has been clearly stated. Non-conforming use has been abandoned. Owners must apply for a non-conforming use for their property and be judged on that basis. Requirements under the zoning ordinance as previously stated by Mr. Sorensen would be applicable. Noteboom - there has been an opinion by the City Attorney that there has been abandonment. Bye - letter of December 23, 1974. Noteboom - I called Mr. Simons and advised him the whole question of abandonment was just before this Board. He told me the letter was tabled until Board had determined there was an abandonment and this is still the question before the Board. • Board of Appeals and Adjustments -5- March 20, 1975 III. Continuation of Hearing for Phoenix Petroleum Co - 8855 Flying Cloud Drive (cont.) Wedlund - Mr. Sanders sent you a letter on November 4, 1974 by Certified Mail which was not picked up wherein he stated the property should be demolished. You stated you want to be good tenants. The history of this property has not been too good. Tags have been issued, maintenance not kept up, letter concerning property not picked up, etc. It is a dangerous piece of property from the standpoint that kids playing there could be injured. Was it abandoned or not? Mr. Friedman made comments there were people staying on the property that he could not remove because the property was under condemnation so couldn't force the man to move. It would seem to me, if I owned a piece of property, I would be more concerned about it than Mr. Friedman. Mr. Friedman has been able to eliminate the people in the back garage. He stated he could not remove them, now he has removed them. Very little attention has been paid to this piece of property and it is in very sad shape. History is very bad. You want to be good neighbors and want to do this and that and the Board will look at that, but I find it hard to envision this in the future. Noteboom - Mr. Friedman was frank with Board in admitting we were less than good stewards of property. Our theme is give us a chance. Separate and apart from legal issue is our attempting to persuade you we will do better and have proceeded to do some cleaning. We have operated in past not being in control ourselves. Now preparing to go forward with Mr. Friedman assuming control of that station, direct control. Will not say there has not been some im- proper handling, but are prepared to do better and have made a small start. There have been some very noticeable improvements there in past three weeks. • Noteboom - is there some procedural way for a trial period where the Board will work with us as long as trial period is long enough to warrant repairs. Sorensen - when was building built? Noteboom - building built in late forties. Sherman - property has been in state of disrepair since 1969. Place was ill kept before he came to be an employee of the City. Cebulla - legal people are caught up in situation of non-compliance and it is a tricky situation where special rules apply. How do rules apply to non- conforming use. As long as I have lived in Eden Prairie, this property has been "crummy", although, beauty is in the eyes of the beholder. It seems to me, the benefit was extracted when convenient to do so, but little effort made to keep it up. Other people keep their places up, but he did not make repairs and now wants to make all the repairs at one time. It is an eye sore, health hazard and dangerous situation. Things weren't kept tidy. Heard you say you're willing to be a good citizen and this is hard for me to understand. Cost of repairs will be more than 50% of the value of the building. There is issue of abandonment. Mr. Friedman stated he had not been there in months. I would have paid more attention. These things don't wash. Wedlund - requested at last meeting to see gas receipts. Noteboom - presented gas receipts and stated that 28,000 gallons a month were sold (average) since 1969 with volume diminishing to around 16,000 gallons a month in early 1973. Wedlund - it would take some time to total up delivery receipts. • Board of Appeals and Adjustments -6- March 20, 1975 III. Continuation of Hearing for Pheonix Petroleum Co. - 8855 Flying Cloud Drive (cont.) • Sorensen - my personal feeling we have now considered this matter in at least four different meetings and have attempted to obtain all the facts and inter- pretations. Do applicants have anything further? Noteboom - no, but have not addressed themselves to reports by city staff. I am making a specific request for a period of one year to proceed and client will make repairs required to satisfy Board and as proof to City as evidence of our good faith. Wedlund - Don't believe this Board has the authority to extend a stay. Sorensen - say a permit were granted, what conditions would you propose be put on that grant and if it were granted, and what is your opinion as to what the legality of such a thing would be. Noteboom - does not have ins .and outs of ordinances, but I think what I suggest conceptually would be for this Board to grant us formally an opportunity to go forward and the one year period would not affect the legality of granting us a permit. It is an effort to grant us opportunity to operate. We must operate under ordinances of City. Will try to work out things that need to be done. If at end of period, things are not as they should be, then you can take action. Sorensen - don't believe this City has right to make contract zonings. Such an action, if complied with by the applicant, might remove some of the problems that exist on the property, however, if not complied with, it would be my personal opinion that the City's non-conforming use objections would be waived. Position of City would be prejudiced if Board agreed to such an arrangement. My personal opinion is there cannot be this type of arrangement. • Sorensen moved that the Board of Appeals and Adjustments hereby adopts a resolution relating to the application of Phoenix Petroleum Corporation for a permit to remodel and re-open a service station on State Highway 169. Whereas, the Pheonix Petroleum Corporation did, on or about the 5th day of August, 1974, apply to the City of Eden Prairie for a permit to remodel a gasoline station owned by it and located at 8855 Flying Cloud Drive; and Whereas, said application was referred to the Board of Appeals and Adjustments, as required by Ordinance No. 135 of the City of Eden Prairie; and Whereas, said Board -of Appeals and Adjustments heard this request on August 19, 1974; and Whereas, the matter was continued to September 26, 1974, at which time said Board of Appeals and Adjustments made certain recommendations to the City Council of the City of Eden Prairie; and Whereas, this matter was subsequently referred by said Board of Appeals and Adjustments to the City Council on or about the 26th day of September , 1974; and Whereas, the City Council did re-refer to the Board of Appeals and Adjustments for further hearing; and Board of Appeals and Adjustments -7- March 20, 1975 III. Continuation of Hearing for Phoenix Petroleum Co - 8855 Flying Cloud Drive (cont.) • Whereas, the Board of Appeals and Adjustments, after notice, held a second Public Hearing on this matter on February 27, 1975; which was continued to March 20, 1975; and Whereas, at such times the representatives of the applicant, Phoenix Petroleum Company, were present and presented additional evidence in support of its request for a variance: The Board of Appeals and Adjustments makes the following Findings of Fact: 1. That the Phoenix Petroleum Company purchased the service station property in 1965 and is the applicant and owner of the property legally described as set forth on "Exhibit A", which is attached hereto and made a part hereof, and which station is located at 8855 Flying Cloud Drive, Eden Prairie, Minnesota. 2. That said service station and garage were constructed on or about 1946 and that said property was first zoned "Local Commercial or Shopping Center District". 3. That said property was rezoned from "Local Commercial or Shopping Center District" to "rural" by Ordinance No. 135 in 1969 by the City of Eden Prairie and that the owner never contested the said rezoning. • 4. That at the time of the aforementioned rezoning, the use of the property as a service station and storage and automotive repair garage became a non-conforming use by terms of said aforementioned ordinance. 5. That during at least the past six years the property has come into a state of disrepair, as more fully set forth in documents contained in City files on this particular property which are hereby incorporated by reference. 6. That at least during the period of 1972, 1973, and 1974, parts of the property were leased to various individuals for various uses. 7. That on or about the same time individuals have lived on said premises contrary to the ordinances of the City of Eden Prairie. 8. That at various time, the building on the rear of the property has not been used for any purpose. 9. That the operation of a service station at the present sites of the pumps constitutes a public safety hazard. 10. That the use of the property is in conflict with various provisions of the City ordinances and Comprehensive Guide Plan and uses of surrounding properties. 11. That the buildings on said property are subject to demolition under State statutes and City ordinance and that a notice of demolition has been issued by the City. Board of Appeals and Adjustments -8- March 20, 1975 III. Continuation of Hearing for Phoenix Petroleum Co. - 8855 Flying Cloud Drive (cont.) 12. That on or about March, 1973, gasoline was no longer available to the public or anyone on said premises. 13. That thereafter the property was used in conjunction with one of the lessee's business as a distributor. 14. That from time to time since the rezoning of 1969, various commodities were offered for sale besides gasoline, such as milk, groceries, and dry cleaning services in violation of the non-conforming highway commercial use. 15. That in the Spring of 1974, the building was used for the sale of "antiques". 16. That the property constitutes a public health and safety hazard in its present condition. Now Therefore: The Board of Appeals and Adjustments finds, based upon all the evidence adduced: Be it hereby resolved: 1. That the non-conforming use of the service station and garage was abandoned by changes of use and non-use; and 2. That the premises have not been adequately maintained; and . 3. That the nonconforming uses of "gas station and garage" have been changed; such change of use constitutes an abandonment of non-conforming use and illegal use under Ordinance No. 135; and 4. That the request of the applicant for a permit to remodel and reopen the station be and hereby is denied. Cebulla seconded motion which carried unanimously. Noteboom - too late to discuss merits. Motion incorporating documents is too vague - what documents? Sorensen - all the documents in the file on this property which is open to inspection. Noteboom - more conclusions than findings. Sorensen explained Items 10 and 16 at Noteboom's request. Noteboom - asked for copy of motion which Sorensen read. Sorensen stated he had no objection to providing copies of motion, part of which was typed prior to meeting and rest written in long hand by Sorensen during the latter part of this meeting. Sorensen - original motion was written by the City Attorney at the Board's request; we have had six months of hearings on this matter; I did have opinions on this matter at the outset of this hearing; and I believe the Board has tried to give the applicant every opportunity to answer any questions, and present its position. Wedlund - have read and re-read all literature in order to find honest solution to this problem. Am in sympathy with Mr. Frieman and would find it hard to vote with Don's motion if this was his sole source of income which it isn't. Have searched through all literature we have on this, and what we Board of Appeals and Adjustments -9- March 20, 1975 III. Continuation of Hearing for Phoenix Petroleum Co 8855 Flying Cloud Drive (cont.) have done and have been over there and talked to the City Attorney and City Planner regarding the situation and I think I have come to a fair conclusion to this situation and believe everyone here feels the same way I do. Cebulla - if Board rules unfavorably, what recourses does he have? Sorensen - two recourses. Applicant has right to go to the City Council and a right to challenge decision in court of law. IV. Review of Setbacks in Round Lake Estates for recommendation to City Council. Wayne Sanders explained request for setback variances and asked the Board if they had any recommendations. Sorensen - this is something that should be dealt with when platting and zoning is passed on property. City Council stated it would consider setback variances on large PUD's, but not on each individual case. This is a matter of platting and the developer should consider this when he is platting his property. Setback variances are stated in terms of minimums, but soon become the norm. Do not like homes to be built that close together and now is the time to protect property values. Council member discussed setback variances and Bye and Wedlund agreed with Sorensen's comments above. Sorensen - does not feel Board has right to make this decision, but can make recommendations. Job of Board of Appeals would be a lot easier if attention was given to unbuildable lots. Problems should be brought to the Board's attention before platting. Wedlund - hard to come to conclusion on Mr. Eliason's property at Round Lake Estates without seeing property. Would like to hear other side of story. Sherman - question is that people want to build larger houses and agreed with Sorensen that the minimum tends to become norm. Sorensen - would like someone to take into consideration the setback variance to be put in Ordinance. Developer has an obligation to buyers to build houses that fit on lots. There should be more planning, maybe current setback is not appropriate, however, major policy decision has to be made by Council. Sorensen moved that this body defer any action on this request for a blanket setback variance for Round Lake Estates as this action is not in the power of this Board to act upon, Cebulla seconded. Motion carried unanimously. V. Adjournment Cebulla moved to adjourn at 10:56 PM, Bye seconded. Motion carried unanimously. James Wedlund, Chairman Mrs. Belinda Vee, Secretary