Planning Commission - 10/24/2005 APPROVED MINUTES
EDEN PRAIRIE PLANNING COMMISSION
MONDAY, OCTOBER 24, 2005 7:00 P.M., CITY CENTER
Council Chambers
8080 Mitchell Road
BOARD MEMBERS: Larry Kacher, John Kirk, Vicki Koenig,
Kathy Nelson, Peter Rocheford, Fred Seymour,
Ray Stoelting, Jon Stoltz,William Sutherland
STAFF MEMBERS: Stu Fox, Manager of Parks and Natural Resources
Al Gray, City Engineer
Mike Franzen, City Planner
Julie Krull, Recording Secretary
I. PLEDGE OF ALLEGIANCE—ROLL CALL
Chair Stoelting called the meeting to order at 7:00 p.m. Absent: Kacher, Koenig, and
Nelson. Rocheford arrived during the Planners Report#1.
II. APPROVAL OF AGENDA
MOTION by Seymour, seconded by Kirk, to approve the agenda. Motion carried 5-0.
III. MINUTES
PLANNING COMMISSION MEETING HELD ON OCTOBER 10, 2005
Minutes for the October 10, 2005 meeting will be available at the November 14, 2005
meeting.
IV. PUBLIC MEETING
V. INFORMATIONAL MEETING
VI. PLANNERS' REPORTS #1
A. APPEAL OF STAFF DECISION DENYING PERMIT#2005-071 AND
PERMIT#2005-072 FOR SCHUBERT OUTDOOR ADVERTISING, INC.
Planning Commission Minutes
October 24, 2005
Page 2
Stoelting asked Franzen to review the staff report. Franzen stated that there
would be a two part presentation with him reviewing the staff reports and the
reasons why Staff reached the conclusions relative to the particular permits. The
second part of the presentation would be addressed by Richard Rosow, City
Attorney for Eden Prairie. He will address some information that came into the
offices late on Friday after the staff report was completed and will advise the
Commission on how to look at that particular information and the City's
recommendation as well. Franzen started off by stating that the request that is in
front of the board is an appeal of the Staff decision. He pointed out that the way
the ordinance is written is that anybody that applies for a permit, if they disagree
with the recommendation that has been made by Staff they can appeal it within 10
days of the mailing of the notice. That is the case with the item brought before
the Commission this evening. Schubert Outdoor Advertising, Inc. was denied
their permit applications for 071 and 072 on September 23rd, 2005. The City
received a written appeal from Schubert Outdoor Advertising within 10 days of
the mailing of the notice. Staff recommendation for the Commission to adopt by
motion the findings and conclusions to deny permit application 2005-071, to
Schubert Outdoor Advertising Inc. and also a recommendation that you pass the
motion that the findings and conclusions affirm the staff decision to deny permit
2005-072.
City Attorney, Richard Rosow, addressed information submitted by Peter Coyle,
an attorney from the Larkin Hoffman Law Firm, representing Schubert Outdoor
Advertising Inc, relative to building sign permits. Mr. Rosow stated that he
wanted the staff report presented first so that there was a chronological
presentation available to the Commission. Mr. Rosow pointed out that on
10/20/05, the City received copies of documents that were invoices and receipts to
Schubert's for permits. Included were invoice 1502,receipt 4423, invoice 1707
and check number 6910 for payment of the amount of the second invoice. Mr.
Rosow also stated that they received a letter on 10/21/05, that attaches Eden
Prairie township building permit#770, 771, and 772 and all of them describing
the location as Highway 169, issued on 10/26/62 to Schubert Outdoor
Advertising. Mr. Rosow pointed out that those documents,particularly the last
one, contains very important information. He stated he wanted to address the
appeals separately because the dates are very important and the information
presented is critical to those dates. He first discussed permit 071, which is for the
sign located in the southeast corner of Old Indian Road and Flying Cloud Drive.
Mr. Rosow pointed out that in Mr. Coyle's letter of October 3rd, 2005, to the City
Clerk,he addressed the applicant's position that the sign was a legal non-
conforming since that the sign was erected on January 5d', 1957. Mr. Rosow
stated that in turn he sent a letter inquiring to Mr. Coyle if he had any evidence
that the sign was erected on that date. Mr. Rosow stated that if the sign was
erected in January 1957, it pre-dated any sign ordinance that the township
adopted. The first sign ordinance was adopted March of that year and if the sign
were erected or permitted in January of 1957, that would make it a legal non-
conforming use. Mr. Rosow pointed out that Mr. Coyle has also brought
Planning Commission Minutes
October 24, 2005
Page 3
additional information to the meeting tonight. Mr. Rosow stated that the permits
submitted by the applicant are actually 1962 permits,but that there is attached in
the staff report, under tab 2, on 071, an application to the Minnesota Highway
Department for a permit to erect advertising devices along the Minnesota
highways and it is the approval by MnDOT is dated and signed by the disctict
engineer, January 11, 1973. The permit approval states "permit is issued subject
to future classification as legal or permitted non-conforming use" The other
important aspect of this 1973 document is box number 14, which identifies the
date on which the sign was erected. The date in that box is 1/5/57. Mr. Rosow
stated that the application, as he understood it, intended to take down the existing
wooden structure of the sign and replace it with an entirely new modern structure
but in the same location. He pointed out that had this application been submitted
several years ago, before the legislature amended the law, he would have advised
the City that this type of reconstruction is not permitted under the law. But
several years ago the legislature amended the law to allow for replacement of
structures under the definition of non-conforming structures. Based upon review
of this information and the new information, the permits and the invoices, there is
credible evidence based upon certification of the Highway Department in 1973,
that the sign was permitted or erected in 1957. Mr. Rosow also pointed out that
he did ask Staff to review all of the City files to see if there were any information
to show the date of erection of the sign and there was nothing in the files; there
were no photographs. Mr. Rosow stated that the appropriate action would be to
overrule the Staff decision in this matter and to allow the permit to be granted.
Moving on to the next permit, 072, Mr. Rosow stated that this is an entirely
different matter compared to the previous permit, 071. He stated that the
application for the sign 072, which is sometimes referred to as the Lions Tap sign,
also contains an application for a permit to erect advertising devises along the
Minnesota highways and this particular permit is signed off by William Crawford,
District Engineer. The permit was signed on December 18, 1964. It is noted that
box 14 on the application does identify that the sign was erected on October 26,
1962, and that would be consistent with Mr. Coyle's letter. Mr. Rosow explained
that the year 1962 is after the adoption of Ordinance 4, which would mean that
this permit was issued erroneously. He also pointed out that with respect to the
permits that Mr. Coyle presented, there are three permits. At one point in time
Schubert Sign Company had five signs in Eden Prairie. Mr. Rosow noted that he
was aware that two signs were taken down and the application this evening is for
two but he is unclear of the status of the third sign. Mr. Rosow said that the
permits do not identify, other than by location Hwy 169, which signs they relate
so. He stated that if one of these three permits relates to sign 072, the law is that
the applicant cannot rely on an erroneously issued permit issued from the City to
claim the right that they can continue to have the structure in that place, except
that the law acknowledges a narrow exception to that general rule. That exception
states that if the permit was issued and the applicant relied upon its issuance and
in reliance upon it completed all of the work or substantially all of the work that
the applicant needed to complete, then the court would say that they have a vested
Planning Commission Minutes
October 24, 2005
Page 4
right in that permit and may continue to occupy that structure. Mr. Rosow said
that to find that, we have to determine that one of these three permits that has
been presented to us is a permit to this location,because it is not evident on the
face of the permit. The issue before the Planning Commission is whether we have
credible evidence that a permit was issued for the construction for the sign at
location 072.
Sutherland asked Mr. Rosow if the date that is typed into block 14 of permit 071
is credible evidence all by itself, and also asked if there was no more evidence,
like logging it into a permit file or log book and that it appears to be self-
reporting. Mr. Rosow commented that Sutherland is correct in that it is self-
reported and that the City Staff has searched City files and finds no other
information with respect to this and that the applicant will argue that it is the
City's duty to prove that they have credible evidence to the contrary of that date.
Stoelting asked Mr. Rosow that when it comes to permit 071,based on the
previous application filed out in 1973, and because the January 5th, 1957 date is
on the application, then does he feel that there is no reason to deny the future non-
conforming use for 071. Mr. Rosow stated that was correct. Stoelting stated that
the real issue was not approving the non-conforming use for 071,but focusing the
discussion going forward on permit 072. Mr. Rosow stated that was correct.
Peter Coyle, attorney with Larkin Hoffman Law Firm located in Bloomington,
MN, along with Mike Hoye, grandson of the founder of Schubert Outdoor
Advertising Inc., and the owner of the signs of the subject of application,
presented their proposal. Mr. Coyle started out by stating he wanted to clear up
one minor discrepancy for the record. He stated that the Staff included in its staff
report photos that extensively depicted site 071 and should be site 072. Secondly,
he said he went through the City's files that afternoon regarding both of the sign
applications and did not find any files in relationship to these applications and
stated that it puts them in a position to prove the negative. In regards to 072, Mr.
Coyle stated he would like to present some documents that he did not have time to
get to the Staff before the meeting. The first document is a photocopy of a
checkbook ledger for 3/30/67. The second document is more of the same, a
checkbook register, dated 4/3/67, reflecting payments to the City of Eden Prairie
on the checkbook of Schubert Outdoor Sign. The next document is a sign permit
that was issued by the Village of Eden Prairie on 12/31/67 signed by Mr. Schubert
and a Mr. Bren, who was the Director of Licensing for the City of Eden Prairie.
On the permit there is a receipt that notes the receipt of payment for a sign permit
relating to the Sever Peterson sign, which is the Lions Tap sign location. Mr.
Coyle pointed out that a more contemporaneous document is a letter dated
10/24/05 signed by Sever Peterson. It states: To whom it may concern: I Sever
Peterson III, attest that the Schubert Outdoor Advertising billboard located on my
property, south of Flying Cloud Drive, opposite of the Lions Tap Restaurant,has
been there since October 26, 1962. Furthermore, this is the only sign I or my
father, Sever Peterson II, have had with Schubert Advertising in Eden Prairie.
Planning Commission Minutes
October 24, 2005
Page 5
Mr. Coyle stated that letter and the signed documentation previously handed out
should serve as credible evidence of the existence of validly issued permits by the
City of Eden Prairie. He also presented another check register showing payment
to the City of Eden Prairie dated 12/19/67. A further receipt from the Village of
Eden Prairie dated 12/18/67 reflecting sign payments from Schubert Outdoor
Advertising. There were also two more check registers reflecting additional
payment to the City. Mr. Coyle pointed out that the documents circulated to the
Commission and the Staff are not specifically referencing the Lions Tap Sign or
the Indian Road sign. He stated that focusing on the Lions Tap Sign and the
Sever Peterson letter to the City, along with the permit dating back to the 60's
referencing specifically the Sever Peterson sign location, seems to be clear and
convincing evident that the sign location has been in existence for over 40 years
and he believes that Schubert Outdoor Advertising has a clear right to both sign
locations. Mr. Coyle also pointed out that they have never been cited by the City
for operating in the City without a permit. He stated that the checkbook registers
reflect periodic payment to the City from Schubert in renewal of its permit
locations. Mr. Coyle also referenced the third sign, which Mr. Rosow previously
brought up and stated that that third sign location is currently owned by the City,
who took control of it last year.
Mr. Coyle stated that is was unfortunate that the City does not have
documentation to put forward and they feel that it is unfair or wrong to suggest
that the permit that was issued to them in the 1960's for sign construction was
wrongly approved by the City, given that the City has no records. He stated that
Schubert has maintained the sign lawfully all of these years and has routinely
received permit renewals from MNDot as required under state law. Mr. Coyle
stated that he urged the Commission's approval and to reject the Staff's
recommendation of denial for both sign locations. Lastly he pointed out that in
early June of 2005,he met with Staff to submit these applications and the only
pushback he received from Staff was a request on their part that we supply the
City with surveys of the right of way for the City's highway to see boundaries.
Mr. Coyle stated they supplied the City with the information because they did not
have it. He said the City also asked then to provide delineation for the one sign
application that sits adjacent to a wetland, which has now been approved by the
City Staff. He pointed out that it shows at that time that Staff did not see a
problem with the applications.
Stoelting asked Mr. Coyle if all of the information handed out pertained to 072.
Mr. Coyle stated that it did.
Stoelting stated that what he had heard from Mr. Rosow was that there was an
issue of non-conforming use and in order to use the non-conforming use, you
have to ascertain if that was used prior to the induction of a rule and that there can
be non-conforming uses in a variety of different uses. Not establishing that then
the issue becomes, was the permit issued erroneously. Stoelting said he would
like to hear from Staff about erroneously issuing permits. Mr. Rosow stated that
Planning Commission Minutes
October 24, 2005
Page 6
in reviewing the ordinances in effect at the time the staff recommendation sets out
the bases on which they believe the signs did not conform to the current City
Ordinance 11.70. Mr. Rosow cited examples of non-conformity that were on
page 2 of the staff report. He stated that the items set forth in the findings were
the basis for the non-conforming use. He said the question then becomes is the
sign legal or illegal non-conforming use. The Staff believes that the permit was
erroneously issued because the City did not have a conditional use process under
its prior codes and has only limited conditional use permit process even under the
current code, none of which involves signs. Mr. Rosow said when it gets to the
next level of inquiry you have to ascertain if they fall within the narrow exception
that even though they rely upon an erroneously issued permit, can they still
maintain the structure. Mr. Rosow stated that he felt the information presented
tonight was helpful and the check registers are confirmations of payment but not
specific to signs but the third document is most interesting. This is for permit
number 22 in the right hand corner and at looking at the list of receipts, it
references permit 29, 18, 35, 64 and 73 on the first page, and 18, 29, 35 and 64 on
the second page. But there is no permit number 22 reference in the receipts. The
second item Mr. Rosow noticed about the sign permit is the size of the sign, 30 X
10 and he asked Franzen if that is the size of the sign the City is dealing with
today. Franzen stated that is was. Rosow also stated that you can see that the
date that the permit expires is on 12/31/67; the box for renewal is checked;
billboard checked; and there is also a renewal of a sign in 1967 signed by Mr.
Bren. On the receipt from the Village of Eden Prairie it notes received of
Schubert Outdoor Advertising for 1967; it relates to permits 22 and 40, and on the
bottom it says, "22 on Daryl Peterson property" and "40 on Sever Peterson
property". The current letter from Mr. Peterson would confirm that he had one
sign on his property and that the sign has been there since 10/26/62. Rosow said
that this provides further evidence for the Commission to weigh the issue before
you is one: do the permits 770, 771, and 772 relate to application 072. To assist
with that finding, the next document is a signed permit in 1967 that indicated it
was there was a permit renewal on the Sever Peterson property. The City does
know that 072 is on Mr. Peterson's property and they do have an unsworn
statement of Mr. Peterson. Mr. Rosow stated that if the Commission finds the
evidence credible, and even acknowledging that it was an erroneous issue of the
permit, the law would support the proposition that because the applicant did every
thing they had to do in respect to that permit application they fit into that narrow
exception to the rule that you cannot relay upon the issuance of an erroneous
issued permit.
Mr. Coyle presented an aerial photograph dated May 7, 1957,purporting to show
the shadow of a sign in relationship to application 772.
Mr. Rosow had a summary comment stating that Franzen had looked at 1964
photographs and was able to identify a shadow of a sign on that photograph. Mr.
Rosow stated that there are a couple of options to take in this situation. The
applicant could grant additional time for the City to review the aerial photograph
Planning Commission Minutes
October 24, 2005
Page 7
in conjunction with the 1964 aerial photograph to determine if they are the same
or, the Commission could take action tonight.
Stoelting stated that in looking at the staff report and the denial of the permit that
there were a lot of non-conforming issues that were briefly introduced. Stoelting
stated that in looking at the non-conforming items on the staff report, one he
wanted more clarification on was the distance a sign has to be from the roadway.
In the staff report it stated that no sign shall be nearer than 15 feet to any street
line but this particular sign is 1 1/2 feet from the roadway. Stoelting asked if there
were any safety concerns in relationship to this. Mr. Rosow stated that in respect
to the 1.5 feet it is measured from the right of way, not the distance from the
traveled portion of the road. Franzen stated the reason for the setback is a visual
reason not necessarily a safety reason.
Stoltz asked Franzen to comment on all of the paperwork presented tonight.
Franzen stated that if the City had this information prior to the meeting, there
would not be such a lengthy discussion on this matter. Franzen agrees with Mr.
Rosow in that there appears to be credible evidence for the Board to overrule both
decisions by Staff.
Sutherland asked Franzen if the sign was ever cited for non-conforming use.
Franzen stated that it was not.
Rocheford stated that this is a good lesson for Commission to look at the sign
ordinance.
MOTION by Stoltz, seconded by Rocheford, to overturn staff decision to deny
permit 2005-071 and 2005-072 to Schubert Outdoor Advertising, Inc.
Stoltz amended the motion, and it was seconded by Rocheford, to grant the
permits 2005-071 and 2005-072. Motion carried 6-0.
VII. PUBLIC HEARINGS
A. VARIANCE#2005-15 at 8565 Columbine Road, Eden Prairie. Request is for a
front yard structure setback variance from 35 feet to 34.95 feet.
Mark Morris, of North American Properties, who is the owner and developer of
this project,presented the proposal. Mr. Morris stated that they have a large
structural wall on this location that is part of the foundation system. The footing
on the wall is approximately 12 feet wide with the thickness being 2 feet and the
overall height is 17 feet. During construction, which was in winter conditions, the
civil engineers marked the corners of the footings before they became vertical and
as they went up they erred in their findings. The southwest corner was supposed
to have a 35 foot setback and it came out five-tenths over. Mr. Morris used the
Planning Commission Minutes
October 24, 2005
Page 8
overhead projector to illustrate this error. He stated that he is here tonight to
request a variance for that difference.
Stoelting asked Mr. Morris if the distance was from the corner of the foundation
or from the brick facing. Mr. Morris stated it was from the corner of the
foundation. Stoelting asked Mr. Morris if he had an actual survey with him. Mr.
Morris stated he did not,but could show another diagram illustrating the
information contained in the survey.
Stoelting asked Franzen to review the staff report. Franzen stated that Staff has a
recommended Planning Commission action that the variance be approved with the
following findings; which is on page 2 of the staff report. The findings are:
1. That the variance will not alter the standards of the C-Ref-Ser zoning district.
2. The closest point of the building is approximately 85 feet from Flying Cloud
Drive.
3. A larger right of way for Flying Cloud Drive can be mitigation for the smaller
setback.
Stoelting opened the meeting up for public input. There was no input.
Sutherland wanted to clarify the setback; if it was 34.95 feet or 34.45 feet.
Franzen stated that it is 34.45 feet. Mr. Morris confirmed that is was 34.45 feet.
MOTION by Stoltz, seconded by Rocheford, to close the public hearing. Motion
carried 6-0.
MOTION by Stoltz, seconded by Rocheford, to approve the front yard structure
setback from 35 feet to 34.45 (which was changed from 34.95 feet as it was a
typographical error) stamped dated September 16, 2005, and the staff report dated
October 21, 2005, and the following findings and conditions:
Findings:
1. The variance will not alter the standards of the C-Reg-Ser zoning district.
2. The closest point of the building is approximately 85 feet from Flying Cloud
Drive.
3. A larger right of way for Flying Cloud Drive can be mitigation for the smaller
setback.
4. Variance is to 34.45 feet.
Motion carried 6-0.
B. VARIANCE#2005-16 at 12780 Plaza Drive, Eden Prairie. Request is for a
Variance from 75% exterior finishes of face brick, glass, and natural stone to
56.4%; Variance from 6% outdoor sales and display to 17%; Variance from 58
parking stalls to 50 parking stalls; Variance from a 63 foot curb to curb parking
dimension to 60 feet.
Planning Commission Minutes
October 24, 2005
Page 9
Drew Magnuson, architect for Fireside Hearth and Home, presented the proposal.
Mr. Magnuson stated that the exterior of the building is out-dated. He stated that
Fireside Hearth and Home wanted to update the building,both inside and outside.
The first variance request is in regards to building materials. By removing the
metal from the exterior building and replacing it with brick, glass or natural stone,
three of the four sides comply with the ordinance. The ordinance states that 75 %
of the exterior finish is to have brick, glass or stone. The south side is only 56.4%
covered by those materials. The rest would be replaced by cultured stone. The
second request is for an increased outdoor display area. The variance is from 6 %
(432 sq. ft.) to 17% (1,225 sq. ft.) The reason for this is in the non-winter months
there is an outdoor display of products. The third request is to reduce the parking
stalls from the required 58 to 50 parking stalls. The reason being that initially this
building was approved based on an auto use which had a lower parking
requirement then general retail. Because of this, there is currently not enough
room to have 58 stalls. The fourth variance request is to have the curb dimension
for perpendicular parking at 60 feet versus the 63 foot curb to curb dimension.
Michael Schifsky, project manager of Fireside Hearth and Home, wanted to talk
about the company. He stated that it is a Minnesota based company that is
currently located in a light industrial site. He pointed out that using cultured stone
on the outside of the building would truly portray the image of the company. He
also stated that this will not be a service facility, that it will be retail only.
Stoelting asked Franzen to review the staff report. Franzen stated that the exterior
of the building as a whole complies. The outdoor display is not for storage of
product and the site is located in an area where there is outdoor storage. The
parking requirement in 1980 was based on auto use with a lower requirement than
general retail. Because of this there is not enough room on the site to provide the
required parking. In regards to the parking dimension, the Staff feels that the plan
could be revised to meet the dimension but would require a parking setback
variance from 35 feet to 32 feet. It is better to have a wider parking dimension for
larger vehicles to maneuver than more green space.
Stoelting opened the meeting up for public input. There was no input.
Stoelting asked Franzen if the cultured stone factored into the exterior finish.
Franzen stated no, only brick and glass. The issue is not whether cultured stone is
an acceptable material but should there be only 56.4% of brick/glass on the
building.
Planning Commission Minutes
October 24, 2005
Page 10
Sutherland asked Franzen if the parking setback variance could be established
tonight. Franzen stated that is could not, and it would require a new public
hearing.
Kirk asked the proponent if he had a comment in regard to the variance from a 63
foot curb dimension to a 60 feet dimension, which regard to the space. Would
you be willing to keep the 63 foot curb but make a setback variance from 35 feet
to 32 feet?
Mr. Magnuson stated that they would like to maintain the parking lot as is and
would be willing to come back to ask for a variance request from 35 feet to 32
feet.
MOTION by Sutherland, seconded by Rocheford, to close the public hearing.
Motion carried 6-0.
MOTION by Sutherland, seconded by Rocheford, to approve the following
variances based on plans stamped dated September 30, 2005, and the staff report
dated October 21, 2005, and the following findings and conditions:
1. Variance from 75% exterior finishes of face brick, glass and natural stone to
56.4%.
2. Variance from 6% outdoor sales and display to 17%.
3. Variance from 58 parking stalls to 50 parking stalls.
4. Variance from a 63 foot curb to curb parking dimension to 60 feet.
Motion carried 6-0.
VII. MEMBERS' REPORTS
VIII. CONTINUING BUSINESS
IX. NEW BUSINESS
X. PLANNERS' REPORTS #2
A. MCA Update
Franzen stated that there was a joint Planning Commission/City Council
workshop. There was a discussion on the final plan recommendations and the
next steps in the process such as a market study and continued meetings with
property owners where they were with the plan and what is expected in the future.
On November 28, 2005 there will be a Planning Commission meeting devoted
entirely for a presentation by Staff and consultants on the MCA plan.
B. NTI Property
Planning Commission Minutes
October 24, 2005
Page 11
There was a letter in the packet from Chase Company stating that the city is not
interested in purchasing this property.
XI. ADJOURNMENT
MOTION by Stoltz, seconded by Kirk, to adjourn the meeting. Motion carried 6-0.
There being no further business, the meeting adjourned at 9:02 p.m.