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Planning Commission - 10/22/2018 APPROVED MINUTES EDEN PRAIRIE PLANNING COMMISSION MONDAY, OCTOBER 22, 2018 7:00 PM—CITY CENTER Council Chambers 8080 Mitchell Road COMMISSION MEMBERS: John Kirk, Charles Weber, Ann Higgins, Andrew Pieper, Ed Farr, Mark Freiberg, Michael DeSanctis, Christopher Villarreal, Carole Mette CITY STAFF: Julie Klima, City Planner Matthew Bourne, Manager of Parks and Natural Resources; Rod Rue, City Engineer; Ric Rosow, City Attorney Kristin Harley, Recording Secretary A. CALL THE MEETING TO ORDER Chair Pieper called the meeting to order at 7:00 p.m. B. PLEDGE OF ALLEGIANCE—ROLL CALL Absent was commission members Mette, Villarreal and Weber. C. APPROVAL OF AGENDA MOTION: Kirk moved, seconded by Higgins to approve the agenda. MOTION CARRIED 6-0. D. MINUTES MOTION: Farr moved, seconded by DeSanctis to approve the minutes of October 8, 2018 with the following changes: on page 12, the motion to approve the Eden Bluff Fourth Addition project should be changed from "landscape and all parking lots" to "landscape in all parking lots", and in the statement regarding temporary screening be corrected to flow correctly instead of being accidentally switched. MOTION CARRIED 6-0. E. INFORMATIONAL MEETINGS F. PUBLIC MEETINGS G. PUBLIC HEARINGS PLANNING COMMISSION MINUTES October 22, 2018 Page 2 A. NOTERMANN RESIDENTIAL DEVELOPMENT Location: Northwest quadrant of Flying Cloud Drive and Spring Road Request for: • Guide Plan change from Rural to Low Density Residential on 8.34 acres • Zoning District Change from Rural to R1-13.5 on 9.54 acres • MUSA Boundary extension on 8.34 acres John Shardlow, a planner with Stantec Consulting, presented a PowerPoint and presented the application. He introduced the property owners Bert and Bonnie Notermann and legal counsel Jack Perry of Briggs and Morgan. The applicant requested a 2030 Comprehensive Plan amendment, rezoning and a MUSA extension for 9.54 acres of property located north of Flying Cloud Drive and west of Spring Road. The parcel is located in the northwest corner of the intersection of Flying Cloud Drive and Spring Road. Shardlow stated the applicant accepted the recommendations of the staff report and would bring a more detailed development plan during the future application for zoning approval. There would also be a future application for a Planned Unit Development(PUD). The building envelope he displayed in a graphic indicated the current setback requirements. The Notermanns, owners since 1970, had always intended to develop the property when public utilities became available, services that were assured by the City would be available. They petitioned for water and sewer and worked with the City on numerous design alternatives. The site was consistent with the statement in the Rural District section of the City Code and with the plans recently approved for the Lions Tap site. Klima presented the staff report. The request was to amend the Comprehensive Guide Plan from Rural to Low-Density Residential on approximately 8 acres, extend the MUSA line to serve that additional 8 acres, and to rezone the entire property, approximately 9.5 acres, from Rural to R1-13.5. Staff recommended approval of the re-guiding and the MUSA line extension. However, staff recommended the zoning request wait for a development plan to be submitted as it was typical of the City's practices to simultaneously review a development plan when considering a rezoning request. This process allowed for a comprehensive review by both public officials and private property owners. Staff recommended retaining the rural zoning of the property until such time as a complete development plan and associated information is provided for review. Without these details, establishing an ultimate zoning of the property would be premature as it is unclear what level of development was appropriate and could be sustained by site conditions. Staff also recommended text amendments to the 2030 Comprehensive Plan to formalize the City's practice. Farr asked what the initial trigger was for the utility extensions. Rue replied this area had a long history. A feasibility study was done in 2013 for the north side of Eden Prairie Road, which was the first stage; this site was contracted for PLANNING COMMISSION MINUTES October 22, 2018 Page 3 improvement in 2016 and was planned to be completed at some future time. The Notermanns' petition for sewer and water to serve the Lions Tap and the surrounding residential areas precipitated this second stage of the development. Each improvement situation was unique; this goal was to serve the Lion's Tap with sewer and water lines, which included potential benefits to areas outside the MUSA line to serve those properties when and if the MUSA line was extended. This was an effort to prevent precluding it from happening in the future. Farr asked when the MUSA line had to be extended. Rue replied as part of the whole process, the Lions Tap site was outside the MUSA line, so there was an approval to grant this property outside the MUSA line with water and sewer. Dean Edstrom of 10133 Eden Prairie Road stated he was a 45-year resident who was dedicated to protecting the bluffs, which were the inspiration for the City's name. While he thought the City had done a good job thus far, this development would cause a great change to the bluff, which has few residential buildings. He recommended an outright denial of the application, as the guide plan change and extension of the MUSA line represented a domino effect. He objected to the 19- page legal brief submitted by Mr. Perry that compelled the commission to approve the application in any case. If the commission was compelled by the legal brief to approve this application the commission then had no discretion, and neither did the City Council or the Metropolitan Council. He stated this was essentially a threat of litigation against the City. Edstrom disagreed with the brief entirely and recommended this issue be referred to the City Attorney for further discussion so the commission could make a decision without being so compelled. MOTION: Freiberg moved, seconded by Higgins to close the public hearing. MOTION CARRIED 6-0. Higgins asked for Rosow's thoughts on the legal brief. Rosow replied he consulted with staff on the recommendations and found them to be fully supported in law. He found it neither appropriate nor necessary to comment on Mr. Perry's letter other than to say there are some things Rosow disagreed with. Kirk added the ordinances had several aspects that allowed the City to protect the bluffs. He asked Rosow to expand on these. Rosow mentioned the steep slope and cultural heritage aspects as examples, and stated the ordinance did give the City authority to regulate development as staff recommended. The PUD process would involve collaboration with the City. Staff was not attempting in its recommendations to avoid arguments or litigation but was recommending the best process for moving forward with development on this property. According to Rosow, Mr. Perry may have thought, given the history and the possibility of a negative reaction, he had to argue strongly when he in fact did not, and the City was not reacting to this,but taking a proactive approach. Rosow stated he was confident staff found a supportable approach under the law. PLANNING COMMISSION MINUTES October 22, 2018 Page 4 Farr asked for assurance the improvements would be given due process despite the legal tensions. Klima replied she and the applicant expected any development would come through a PUD process to ensure flexibility in this unique situation, and there would need to be special consideration given to the protection of the bluff areas, trees, and other natural areas. This would be a public process should those applications be received by the City. Farr recalled a document that mentioned using the ridgeline of the bluff as a line of distinction between developable and "undevelopable" land. Klima replied it was a fair assumption this language was found in the 2030 Comprehensive Plan. Prior to its adoption, a MUSA expansion took place in the 1990s. In order to expand the MUSA line, the ridgeline was a best estimate as to where development could be accommodated. In the Aspire 2040 process, 20 to25 properties were found to be bisected by the MUSA line, which followed the ridgeline, and each property was unique. Farr asked in the commission's discretionary judgment, if a development proposal application were to be denied, would there be a lawsuit against the City. Rosow replied the Comprehensive Plan, which was the founding document, proposed to low-density residential. The zoning is recommended to be unchanged until the owner was prepared to develop the property. If the Comprehensive Plan and zoning were contrary, this would present the City with a choice: amend the Comprehensive Plan or rezone the property. To amend the Comprehensive Plan there must be a reasonable basis for denial. The court would give deference to a City Council's judgment based on one reasonable basis only, not requiring multiple reasons. If there is an unreasonable basis without a factual basis for denial, it was fine for residents to have an opinion against the development but the commission must find a basis for acting on it. Shardlow replied Mike Franzen was the City Planner in 2013, and he and Shardlow agreed they would deal with the commercial part first, then the residential portion. There was approximately 1.5 acres of land in the extreme northeast corner of the property within in the MUSA line. Franzen's recommendation was three lots within the 1.5 acres and one outside for four lots total. This was the steepest area. Taking access directly from Spring Road to service these lots would have been an incredibly steep cut. A PUD would save the trees and have less of an environmental impact. The Notermanns did commission a study and concluded the site had a naturally occurring landform and not an indigenous mound or sacred area; however, it could have a protective covenant anyway. The Notermanns and Petersons had not received a response to their letter requesting an opportunity to discuss the future use of their properties as part of the 2040 Aspire Comprehensive Plan draft. They were concerned the current language could prohibit development beyond the MUSA line, which drove the language of the current application. Edstrom asked to comment further. Pieper replied the public hearing was closed and the commissioners would question the applicant. PLANNING COMMISSION MINUTES October 22, 2018 Page 5 Farr asked the reason staff was recommending amendments to the Comprehensive Plan rather than to the zoning ordinance itself. Klima replied staff recommended amendments to the Comprehensive Plan to ensure consistency between it and the zoning ordinance. While the current Comprehensive Plan said the rural district, as well as the other districts, were corresponding to the low-density residential districts, the additional details proposed tightened the consistency. Kirk replied he was very familiar with the unspoken"red line" at the top of the bluff and did fear a slippery slope, as the bluffs were a very unique part of Eden Prairie. It hinged on the definition of"protect," which for Kirk meant a very carefully controlled development, not a prohibition of development outright. The legal discussions were well addressed by the City Attorney. In his opinion the City did have the ability, through ordinances and the PUD process, to have some reasonable control over the bluff. The applicant also indicated a willingness to show this. Finding a reasonable solution could be uncomfortable but he was confident a compromise could be found. Farr echoed Kirk's trepidation, saying he had spent three days imagining the site plan which the commission did not have. However, this was private property held by people who served the community well, and the City needed residential housing. Freiberg asked if the PUD approach would give the City more control over development in this area and lead to a compromise. Kirk replied the PUD process was an absolute necessity to give a reasonable position based in law. The applicant was showing cooperation with the City and respect for its needs relative to the bluffs. DeSanctis replied in an era where climate change has become salient,removing trees from a steep slope would have a negative impact on a sacred area to Eden Prairie, especially with increase of heavy rains seen recently in Minnesota. Higgins stated she was on the Eden Prairie Historical Society Board of Directors, and these two areas along Flying Cloud Drive and Spring Road were owned by people whose history in Eden Prairie was integral. This presented an opportunity to develop reasonably although there were many unknowns. Staff and legal counsel were advising a PUD process to ensure the best possible outcome. Pieper asked if the public hearing should be reopened. MOTION: Kirk moved, seconded by DeSanctis to reopen the public hearing. MOTION CARRIED 6-0. Dean Edstrom of 1133 Eden Prairie Road stated he understood the applicant's understanding of the staff report and the legal opinion. He asked Rosow to give advice on whether or not the prior staff conversations were actually legally binding; his understanding was they were not. MOTION: Farr moved, seconded by Higgins to close the public hearing. MOTION CARRIED 6-0. PLANNING COMMISSION MINUTES October 22, 2018 Page 6 Farr asked the value of the natural resources in a development. Bourne replied the applicant was aware of the necessity of protecting the natural resources in these areas. Kirk noted the commission was being asked to vote on a policy change that had been evolving over the last 10 to 15 years: whether or not to allow development in this area of Eden Prairie. Hypothetically, if the commission recommended approval and the applicant came back with an unreasonable development, he wished to retain the City's ability to prohibit such a development. Pieper asked Rosow's opinion. Rosow replied the PUD process gave the City considerable control and the real fear was an unreasonable development, which made it difficult to reach consensus, not a development that was reasonable but not entirely within the commission's vision. Farr asked for and received clarification the motions first would amend the Comprehensive Plan and secondly deny the rezoning request, and asked if content was missing to vote directly on the application. Klima explained the motion incorporated all three of the bullets points on the staff report: to change the guiding in the Comprehensive Plan, to extend the MUSA boundary, and to address the zoning change proposal (with a denial). MOTION: Kirk moved, seconded by Freiberg to recommend approval of the Notermann residential development 2030 Comprehensive Plan Amendment based on the information contained in the October 18, 2018 staff report. MOTION CARRIED 6-0. MOTION: Kirk moved, seconded by DeSanctis to recommend denial of the request to rezone property from Rural to R1-13.5 based on the information contained in the October 18, 2018 staff report. MOTION CARRIED 6-0. B. PETERSON RESIDENTIAL DEVELOPMENT Location: Northeast quadrant of Flying Cloud Drive and Spring Road Request for: • Guide Plan change from Parks/Open Space to Low Density Residential on 7.57 acres • Zoning District Change from Rural to R1-13.5 on 12.3 acres • MUSA Boundary extension on 12.3 acres John Shardlow, a planner with Stantec Consulting, presented a PowerPoint and explained the application. He introduced Siever Peterson, owner of the property, and explained the Petersons had no near future plan for development. The intention was to anticipate such a development with access to municipal utilities that would support better options with less adverse environmental impacts, such as grading and this was driven by the update of the 2040 Comprehensive Plan. Klima presented the staff report. The applicant was requesting a 2030 Comprehensive Plan amendment, rezoning and a MUSA extension for 12.3 acres of property located north of Flying Cloud Drive and east of Spring Road. No development plan or timeline for development of the property was submitted. It PLANNING COMMISSION MINUTES October 22, 2018 Page 7 has been the City's practice to review rezoning requests simultaneously with a development plan. The City's goal for this corridor was to preserve and protect natural resources and maintain the natural character along the Minnesota River. The Low Density Residential guiding allowed up to 2.5 dwelling units per acre. One of the goals in the Comprehensive Plan was to maintain a balance between conservation/management of natural resources and the need for residential housing. Due to the location of utility services and the existing regulations to protect natural resources, staff recommended approval of the 2030 Comprehensive Plan amendment to Low Density Residential and the extension of the MUSA boundary. Without a development plan for the property, there was insufficient information to determine the appropriate zoning for the property. A development plan that included information such as topography, soils reports, archeological studies, tree inventory, and bluff/steep slope analysis would help inform the level of development that the site can support, and again, review of a development plan would be simultaneous with considering a rezoning request. This process allowed for a comprehensive review by both public officials and private property owners. Staff recommended retaining the rural zoning of the property until such time as a complete development plan and associated information was provided for review. Without these details, establishing an ultimate zoning of the property was premature as it is unclear what level of development is appropriate and can be sustained by site conditions. Staff also recommended text amendments to the 2030 Comprehensive Plan to formalize the City's practice. Joel Wiegert of 10131 Eden Prairie Road spoke against a possible "snowball effect" of making decisions based on hypothetical developments. While he did not doubt the reasonableness of the applicant in this case,he was concerned about subsequent developers. He might not in fact object to the future development on this or any other parcels,but he suggested holding off all Comprehensive Plan and zoning change until the actual development plan is brought forward. Shardlow replied the MUSA line was a regional growth management tool of the Metropolitan Land Planning Act, and ten-year municipal planning schedules served to determine which areas would be urbanized within each planning period. Cities have routinely extended their MUSA lines without specific development plans in preparation for at least forty years. The applicant was not anticipating immediate development but was expecting it in the near future. Farr asked the applicant and commission to ponder an alternative use to a low- density single-family residential development on the northeast corner. He also asked if the graphic in the staff report was accurate. Rue replied the exhibit shown in the staff report was not up to date and displayed the old Spring Road alignment; the new Spring Road alignment went straighter south and would remove a portion of the northeast corner. Page three of the report did show the PLANNING COMMISSION MINUTES October 22, 2018 Page 8 current alignment. The gray area on that graphic appeared wider than a normal right-of-way width because there was a storm water facility and a retaining wall. Kirk noted the Lion's Tap site was very unique and would not attract additional commercial development to that corner. If there would be additional development there he would rather see residential than commercial. DeSanctis asked if the proposed intersection would be signaled or signed. Rue replied there would be a stop sign on Spring Road, as existed today. Farr asked if the access to this property was solely from Spring Road and if the distance between the intersection and northern property line was sufficient for safety. Rue replied he would expect any development on that site would line up with the recently approved driveway for the recently approved Lion's Tap project. There was also Riley Creek dividing that property, so there would be restrictions for development, along with some steep slopes on the eastern portion. There was much less developable land than would be suggested by the graphic in the staff report. Farr noted with the setbacks there was probably not much developable land left. MOTION: Freiberg moved, seconded by Kirk to close the public hearing. MOTION CARRIED 6-0. MOTION: Higgins moved, seconded by Freiberg to recommend approval of the Peterson residential development 2030 Comprehensive Plan amendments based on the information contained in the October 18, 2018 staff report. MOTION CARRIED 6-0. MOTION: Higgins moved, seconded by DeSanctis to recommend denial of the request to rezone the property from Rural to R1-13.5 based on the information contained in the October 18, 2018 staff report. MOTION CARRIED 6-0. C. SOUTHWEST TRANSIT GARAGE Location: 14405 W 62nd St Request for: • Planned Unit Development District Review with waivers on 10.05 acres • Site Plan Review on 10.05 acres Rosow departed the meeting. Gary Hay of Hay Dobbs, P.A. introduced SouthWest Transit CEO Dave Jacobson and Mike Dartt, SouthWest Transit Facilities Manager. He displayed a PowerPoint and explained the application. SouthWest Transit had two offices located in Eden Prairie: the corporate office on Technology Drive, and the Eden Prairie Garage. The development proposed to build expanded parking which would be developed on its current ten-acre garage site. The development would include 80 percent bus storage, 15 percent maintenance facility, and 5 percent office space. The current 78 parking stalls would need to be expanded. PLANNING COMMISSION MINUTES October 22, 2018 Page 9 DeSanctis noted in the Comprehensive Plan the City was concerned about the silhouette and profile along Highway 62 and asked what would be altered. Hay replied very little along Highway 62 would be altered. Only the driveway would be seen and the parking would be out of sight behind the entrance. DeSanctis asked if large-caliper trees would be added to the location. Hay replied there were no specific plans for this,but trees would be planted. A rock island at the entry was being converted to trees. DeSanctis asked how many staff would be relocated with the corporate office. Hay replied 10 staff. DeSanctis asked for and received confirmation this would have a negligible effect on the traffic flow on the frontage road. Farr stated he would not want the storage water to overflow too quickly and breach the retaining wall. Hay replied the engineers worked with Nine Mile to prevent this. He explained the parking locations. Farr asked if any consideration had been made to share the parking resources to prevent empty parking surfaces at night. Hay replied this was considered;however, storage was full when the drivers arrived in the morning, and in the evening the vehicles would have to be moved to park the buses for the night. Klima presented the staff report. The applicant proposed to expand the existing parking on the property located at 14405 62nd Street West, located south of 62nd Street Wes and just east of Indian Chief Road. The site included an existing maintenance garage with warehouse and office space. The existing site included 72 parking spaces; City Code requires 73 parking stalls. Due to the future demolition of the SouthWest Transit corporate offices on Technology Drive, the relocation of SouthWest Transit staff from the corporate offices to this site and expanded transit services, SouthWest Transit identified a need for expanded parking on this site. The applicant proposed to add 72 parking stalls to bring the total to 144. The site plan proposed additional parking on the north, east and south sides of the property. Because the property was a shoreland district, the applicant requested a waiver to the maximum impervious surface allowed in the shoreland district. Staff recommended approval of the application. Farr had a question regarding the fuel gas tank for diesel fuel, and saw no jurisdiction or regulatory review of adding the aboveground grade fuel station, and asked if there compliance issues to consider regarding groundwater concerns. Klima there may be additional reviews aside from the aboveground review from the Fire Department or county hazardous materials department. MOTION: Farr moved, seconded by Kirk to close the public hearing. MOTION CARRIED 6-0. PLANNING COMMISSION MINUTES October 22, 2018 Page 10 MOTION: Farr moved, seconded by Higgins to recommend approval of the SouthWest Transit Garage project based on information contained in the October 18, 2018 staff report and plans stamp dated October 10, 2018. MOTION CARRIED 6-0. D. CODE AMENDMENT FOR SEXUALLY ORIENTED BUSINESSES AND PAWN SHOPS Request for: • Amend City Code Chapter 11 relating to Sexually Oriented Businesses and Pawn Shops Klima presented the staff report. At the City Council's annual goal-setting and visioning session held in late winter there was discussion on such sensitive uses such as pawn shop and sexually-orientated businesses and what ordinances did or did not exist. Pawn shops were regulated under Chapter 5 of the City Code. There were at present no pawn shops or precious metal business in Eden Prairie, but Chapter 5 includes restrictions as to which zoning districts in which they would be allowed. Eden Prairie was one of few communities that had nothing on the books regarding sexually oriented businesses. The City Council adopted a moratorium on both uses in June of 2018 to allow staff to research and study the issues, and come back with recommendations. Staff proposed that Chapter 11 (Zoning) be amended to include the definitions for pawnshop and precious metal dealer as defined in Chapter 5. Staff further recommended that Chapter 11 be amended to add pawn shops and precious metal dealers as permitted uses within the Regional Commercial and Commercial Regional Services zoning districts subject to the licensing requirements in Chapter 5. The Police Department and legal staff were drafting licensing requirements for sexually oriented businesses. These code amendments would be placed in Chapter 5 and reviewed by the City Council. Staff proposed that the definition of sexually oriented businesses be added to Chapter 11 and that sexually oriented businesses be allowed as a permitted use in the 12 and I5 zoning districts subject to the retail space regulations of these zoning districts. The 12 and I5 zoning districts allowed 15% of the gross floor area of buildings to be utilized for retail purposes. In the case of a multi-tenant building, the 15 percent retail area would be cumulative for the entire building rather than 15 percent per individual tenant. Staff also proposed that distance requirements of 1,000 feet be provided for sexually oriented businesses from any place of worship, day care facility, school, residential use or other sexually oriented business. Staff recommended approval. DeSanctis asked on what criteria the 1,000-foot buffer, which he thought was arbitrary and insufficient, was based upon. Klima replied staff looked at other regional communities, and some had no distance requirements, others ranged from 250 feet to 1,000 feet. None exceeded 1,000 square feet. Freiberg asked if there are currently or proposed to be any of these businesses in Eden Prairie. PLANNING COMMISSION MINUTES October 22, 2018 Page 11 Klima replied there were a variety of factors as to why Eden Prairie did not emerge as a possible audience for these businesses; it could be Eden Prairie's property values did not align with such businesses, or there was not a market for such services. Pieper asked for and received confirmation there were no current applications for either type of business. Klima reiterated this was a purely proactive change. Kirk asked for comparisons to other communities for the distance requirement for pawn shops. Klima replied only one community, Maple Grove, was found to have a distance requirement; theirs was 750 feet. DeSanctis reiterated the need for the greatest possible distance for sexually oriented businesses and schools, day cares, and places of worship. Klima replied the 1,000 foot was the maximum utilized in other communities researched. Freiberg replied he would be in favor of whatever the maximum would be. Farr stated he also preferred the most distance possible, and at 1,000 feet, signage was illegible unless it violated City code in using a very large font. He added he found the route,rather than the distance of separation, to be of upmost importance—if the children had to pass such a business on their way to school, distance was a poor metric. However, this was very difficult to regulate. DeSanctis added legislating a greatest possible distance could become in effect a legislation of what kind of businesses existed in Eden Prairie. Kirk agreed Eden Prairie should be on the upper end of the regional norms for the sexually oriented businesses,but was surprised at the metric for the pawn shops. Pieper asked if there was a law regarding selling illegal drugs near schools. Klima replied this was not included in the research. Pieper also agreed with Eden Prairie being at the upper limits for a distance buffer. MOTION: Higgins moved, seconded by Freiberg to close the public hearing. MOTION CARRIED 6-0. MOTION: Higgins moved, seconded by Kirk to recommend approval of the Code amendment of sexually oriented businesses and pawn shops based on information contained in the October 18, 2018 staff report. MOTION CARRIED 6-0. H. PLANNERS' REPORT Klima announced earlier this spring when the City Council adopted the moratoriums on sexually oriented businesses and pawn shops, it also adopted a moratorium on the retail sale of firearms.;however, staff was directed to research any studies on the effects or impacts of firearms retail sales and also provide the opportunity to get input from the community. Both were completed. There is no real research locally or nationally on firearm sales impacts. The City used City Connect to gain community feedback on 1) PLANNING COMMISSION MINUTES October 22, 2018 Page 12 concerns about firearms sales, 2) specific areas where such sales should take place and 3) support for distance requirements, with mixed responses without a single directive. Staff did not have a recommendation Staff sought feedback or reaction from the commission to carry forward to the City Council on a future work session to which the Planning Commission members would be invited. DeSanctis asked for and received clarification this discussion pertained to new firearms dealers, and not existing retail outlets such as Gander Mountain or Walmart. I. MEMBERS' REPORTS J. CONTINUING BUSINESS K. NEW BUSINESS L. ADJOURNMENT MOTION: Kirk moved, seconded by Higgins to adjourn the meeting. MOTION CARRIED 6-0. Chair Pieper adjourned the meeting at 9:02 p.m.