Planning Commission - 01/09/2017 APPROVED MINUTES
EDEN PRAIRIE PLANNING COMMISSION
MONDAY,JANUARY 9, 2017 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
Ric Rosow, City Attorney
Julie Krull, Recording Secretary
I. PLEDGE OF ALLEGIANCE—ROLL CALL
Vice Chair Pieper called the meeting to order at 7:00 p.m. Stoltz and Weber were absent.
II. APPROVAL OF AGENDA
MOTION: Kirk moved, seconded by Higgins, to approve the agenda. Motion carried 7-0.
III. MINUTES
A. PLANNING COMMISSION MEETING HELD ON DECEMBER 12, 2016
MOTION: Farr moved, seconded by Freiberg, to approve the Planning Commission
Minutes. Motion carried 7-0.
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
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Klima said based on the direction provided at the December 12th meeting, City Staff
has prepared findings, which are included in the packet this evening, along with the
exhibits provided on the table on goldenrod. Also in the packet was a memorandum
from the City Attorney to Commission Members addressing the ability to vote on
the findings if commission members were absent from the December meeting.
There is also the appellant attorney's response from Peter Beck.
Vice Chair Pieper asked appellant, Dr. Salovich, to come forward and speak. Peter
Beck, on behalf of appellant, came forward and spoke. He said he wanted to focus
on a few points in the letter and spend time on the proposed resolution. Mr. Beck
said what is happening is an injustice. At the last meeting,he said the history of the
property was gone through and he also reiterated when the property was purchased,
no one from the City advised the appellant of dock rights and that the ordinance had
changed. On that issue, Mr. Beck stated he feels this should not be held against Dr.
Salovich. Mr. Beck said another question that was brought up at the last meeting
was if the appellant discontinued use, and Mr. Beck said he did not. He pointed out
Dr. Salovich did not move the dock, the neighbor moved the dock. The neighbor
never wanted the dock or easement there. Therefore, he did not discontinue use. In
regards to the resolution Finding 8, it states the dock was not on the shore; that is
not correct,because we do not know that for sure. Dr. Salovich was there later than
that. In Finding 27, Mr. Beck stated his notes did not mention that and they do not
believe that finding to be true because the dock was a rolling dock. The dock was
on the easement and Mr. Paradis never wanted it there in the first place. Mr. Beck
said in regards to Conclusion B,he says the petitioner admits discontinued use of
the dock. That is not true because Dr. Salovich never admitted to that;he did not
discontinue use. Mr. Beck said they would like Dr. Salovich to be able to put in a
dock next year.
Richard Rosow, City Attorney, wanted to address Mr. Beck's letter. He stated after
reviewing it he wanted to clarify a few things. The first item he wanted to clarify
was the MN State Statute 462.357, subd. le and Eden Prairie City Code 11.75 both
address a non-conforming use is discontinued for a period of more than one year.
Neither of these rules addresses the issue of abandonment. Mr. Rosow said in
regards to Mr. Beck's recent letter, the Staff s decision that is was a non-
conforming use is that it was not used for over one year. Even though the dock was
on shore, it needs to be in the water to be conforming. Mr. Rosow said there is no
duty on the City to inform homeowners of changes in the City Code. These
changes are published in the newspaper for all to be aware. In 2006, Dr. Salovich's
application was to plat the property. Staff would not have known that there was
going to be renovation on the property and the potential for the dock not to be used
within a year, so Staff would not advise applicant to use the dock every year.
Vice Chair Pieper asked if someone had a dock on shore and did not use it, is it still
considered a discontinued use. Mr. Rosow said it is still considered a discontinued
use.
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Farr asked if this were to happen in another city, would notification be different.
Mr. Rosow said all city governments are bound by the same state statutes and all of
the cities should follow precedence of posting it in the newspaper.
Freiberg wanted to go over what he objected to in the last meeting. He said the
common sense involved is when someone is looking at a $400,000 potential loss;
the City should have notified him. Freiberg pointed out it could have been done
when the inspectors were onsite. He stated he has a problem with that and feels the
City is better than that. Wuttke stated he concurs with Frieberg.
Farr stated he has empathy for the appellant and understands what Freiberg is
saying and would like to know how this situation could not happen again. He stated
there needs to be a discussion at a later date about communication.
Vice Chair Pieper asked if there is a database of non-conforming uses in the City.
Klima said there is not a database listing non-conforming uses in the City.
Mr. Beck said when Dr. Salovich came in and talked to the City about his dock,
they should have told him then. He stated he believes this was not intentionally
missed by the City,but it was missed and now Dr. Salovich is paying for it.
Wuttke asked how a person who owns property would realize that it is a non-
conforming use. Mr. Rosow said most of the issues arise on a complaint basis; a
neighbor calls in and makes a complaint about the property. At that point it is a fact
intensive inquiry. They have to go back to records and aerial photographs of the
property and talk to neighbors about the property to find the facts. In this case, the
property owner told the City he discontinued the use. He stated at the time,his
intent was to renovate the home, which took him 10 years. Mr. Rosow also pointed
out it was the potential purchaser of this property that inquired about the dock issue.
Farr asked if Staff had authority to apply flexibility for this situation. Mr. Rosow
said Staff does not have that authority to apply flexibility. Farr asked if there are
legal recourse for the appellant. Mr. Rosow said the City Council can review this
matter. Farr asked if we could negotiate a settlement for them. Mr. Rosow said no,
the Commission cannot mandate a settlement.
Freiberg asked if the City could have said something prior to Dr. Salovich. Mr.
Rosow stated in 2006 the request was to plat the property and the dock would never
have been an issue, so there would never have been a need to discuss the dock.
Vice Chair Pieper asked the Commission members where they stand in regards to
this issue. Poul said he felt the dock was not being used so Dr. Salovich lost his
right and also felt the City did not do anything wrong in regards to communication
as it was a platting issue.
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Kirk said he was on the Commission 10 years ago and remembers the platting issue
and does not recall conversation about the dock. Kirk said he agrees with Poul and
the finding the City has made. Vice Chair Pieper said he agrees with Poul and Kirk,
and also understands the sensitivity of this issue.
Wuttke said the City Council may be able to hear this and do some negotiating. Mr.
Rosow said the City Council would follow a similar process as the Planning
Commission is following. Mr. Rosow said if a motion is made it should be noted in
Finding 8 be revised to note the "dock located on the shore into the lake".
MOTION: Kirk moved, seconded by Farr, to approve Final Order 216-18 to
uphold the staff determination with modifications to Finding 8 to include the terms,
after"on the shore", "into the lake". Motion carried 5-2, with Freiberg and
Wuttke opposing.
VI. PUBLIC HEARINGS
A. CODE AMENDMENT—TOWERS AND ANTENNAS
Request to:
• Amend the City Code Chapter 11 relating to Cell Towers and Antennas
Klima said the Federal Communications commission (FCC) Act of 1996
established antennas and towers as 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. After reviewing the
permitted uses in these districts it was noted that towers and antennas were
inadvertently not included at the time of the districts inception. The Code
Amendment is a house keeping item to ensure City Code is in alignment with the
FCC Act of 1996. Staff is proposing the language be clarified and is recommending
approval.
Kirk commented an antenna in an airport office district would not be permitted if it
was a 100 foot antenna,but if it was 10 foot it would be permitted. Klima
concurred that is generally correct that towers and antenna area regulated by
Section. 11.06. Section 11.06 is not proposed to be changed.
Vice Chair Pieper opened the meeting up for public input. There was no input.
MOTION: Freiberg moved, seconded by Kirk, to close the public hearing. Motion
carried 7-0.
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MOTION: Freiberg moved, seconded by Higgins, 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. Motion carried 7-0.
VII. PLANNERS' REPORT
VIII. MEMBERS' REPORT
IX. CONTINUING BUSINESS
X. NEW BUSINESS
XI. ADJOURNMENT
MOTION: Wuttke moved, seconded by Freiberg, to adjourn the Planning Commission
meeting. Motion carried 7-0.
Vice Chair Pieper adjourned the meeting at 8:03 p.m.