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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 PLANNING COMMISSION MINUTES January 9, 2017 Page 2 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. PLANNING COMMISSION MINUTES January 9, 2017 Page 3 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. PLANNING COMMISSION MINUTES January 9, 2017 Page 4 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. PLANNING COMMISSION MINUTES January 9, 2017 Page 5 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.