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2015-06-23 Planning Comm Minutes CITY OF MENDOTA HEIGHTS DAKOTA COUNTY, MINNESOTA PLANNING COMMISSON MINUTES June 23, 2015 The regular meeting of the Mendota Heights Planning Commission was held on Tuesday, June 23, 2015 in the Council Chambers at City Hall, 1101 Victoria Curve at 7:00 p.m. The following Commissioners were present: Chair Litton Field, Jr., Commissioners Howard Roston, Michael Noonan, Doug Hennes, Mary Magnuson, Christine Costello and Ansis Viksnins. Those absent: None. Others present were City Planner Nolan Wall, Public Works Director/City Engineer John Mazzitello, and City Attorney Tom Lehmann. Approval of Agenda The agenda was approved as submitted. Approval of May 26, 2015 Minutes COMMISSIONER VIKSNINS MOVED, SECONDED BY COMMISSIONER ROSTON TO APPROVE THE MINUTES OF MAY 26, 2015, AS PRESENTED. AYES: 7 NAYS: 0 Hearings PLANNING CASE #2015-19 Eileen O’Shaughnessy and Art Perlman Critical Area Permit at 731 Woodridge Drive City Planner Nolan Wall explained that applicants were seeking a Critical Area Permit to construct a fence within the Mississippi River Corridor Critical Area. The code requires a permit for construction of any structure within the critical area overlay zoning district. Planner Wall shared a site map showing the subject parcel location. He further explained that as a result of a landslide event in June 2014, the applicant received approval directly from the City Council in March 2015 for the required Critical Area Permit, Conditional Use Permit, and Variances in order to allow for construction of a retaining wall and associated soil stabilization. The proposed fence being considered in this case was not included in the original application; therefore, the additional permitting is being sought now. The proposed 3.5-foot black vinyl fence would be located behind the top edge of the retaining wall to ensure appropriate fall protection. The retaining wall is approximately 17 feet tall at its highest point. The applicant plans to plant vines at the base of the retaining wall, which would eventually June 23, 2015 Mendota Heights Planning Commission Meeting Page 1 visually obscure the fence from the road and from the surrounding properties. The proposed fence is compliant with the applicable critical area and residential fence standards; therefore, staff recommended approval of this application. Commissioner Roston recused himself from this issue due to a conflict of interest. Eileen O’Shaughnessy and Art Perlman came forward to answer any additional questions from the Commission. Chair Field opened the public hearing. Seeing no one coming forward wishing to speak, Chair Field asked for a motion to close the public hearing. COMMISSIONER NOONAN MOVED, SECONDED BY COMMISSIONER COSTELLO, TO CLOSE THE PUBLIC HEARING. AYES: 7 NAYS: 0 COMMISSIONER HENNES MOVED, SECONDED BY COMMISSIONER NOONAN, TO RECOMMEND APPROVAL OF PLANNING CASE 2015-19, CRITICAL AREA PERMIT REQUEST FOR A FENCE BASED ON THE FINDINGS OF FACT THAT THE PROPOSED PROJECT IS COMPLIANT WITH THE POLICIES AND STANDARDS OF THE CRITICAL AREA OVERLAY DISTRICT, WITH THE CONDITION THAT A FENCE PERMIT IS APPROVED BY THE CITY PRIOR TO CONSTRUCTION OF THE PROPOSED FENCE. AYES: 6 NAYS: 0 ABSTAIN: 1 (Roston) Chair Field advised the City Council would consider this application at its July 7, 2015 meeting. PLANNING CASE #2015-20 Dick Bjorklund Properties, LLC Preliminary Plat at 2511/2525 Condon Court City Planner Nolan Wall explained that the applicant was seeking approval of a Preliminary Plat for a subdivision at 2511/2511 Condon Court. The subject parcel is 1.3 acres, which does include a .08-acre tract of excess right-of-way that was acquired from MnDOT. The parcel currently contains two single-family dwellings with detached garages. The parcels are zoned R-2 and guided for medium-density residential in the Comprehensive Plan. In January 2015, the applicant received approvals for the rezoning and Comprehensive Plan amendment requests that reflect the existing conditions regarding the zoning and land use plan. June 23, 2015 Mendota Heights Planning Commission Meeting Page 2 Planner Wall shared an image of the subject parcels and the proposed preliminary plat. He clarified that the applicant is requesting a preliminary plat only at this time and is not requesting a final plat. The name of the proposed plat is The Oaks and would create three new lots from the two existing lots and the excess right-of-way that was acquired. A single-family home would be constructed on the northern most lot and two twin-home units would be constructed on the remaining parcel for a total of five dwelling units. The parcel at 2535 Condon Court is not owned by the applicant and is not included as part of the plat. All five lots do meet the minimum lot size requirements as well as setback requirements. However, the minimum required lot width is 100 feet, which is measured on the first 30 feet of a lots depth. The intent of that standard is to ensure adequate frontage for access and spacing between dwellings. The intent of this being measured within the first 30 feet is to eliminate narrow slivers of lots next to each other that only meet the lot width standard at the rear lot lines. Therefore, a literal interpretation of the code would disqualify lots one, two, and three. Due to the jog in the front lot lines caused by the Condon Court right-of-way, the frontage road, which is an a-typical situation in the City – it’s actually a frontage road that owned and maintained by the City but is actually built within the MnDOT right-of-way (excess MnDOT right-of-way from Dodd Road – a state highway). In this case, there is nothing between the proposed homes and the street besides excess right-of-way. Included the staff report was what was felt to be the de facto code interpretation of what the lot width standard is in this case. Staff believes that, based on the intent, the standard is met – there is no crowding and access is assured. Grading and erosion control plans have been provided and would be reviewed in-depth as part of the building permit process. Planner Wall then reviewed the landscape plan. Staff recommended approval of this Preliminary Plat request with conditions. Commissioners asked questions regarding the MnDOT right-of-way purchase. Dick Bjorklund came forward to answer any additional questions from the Commission. Chair Field opened the public hearing. Mr. Joe Christensen, an attorney representing Mike and Sue Laughlin who own the property at 2535 Condon Court, came forward and explained that his clients purchased their property in 2001. It is a certified alcohol treatment center facility with 10 beds. The Laughlin’s are not opposed to the Bjorklund proposal; however, they are concerned with some of the impacts that the development may have on their property. He then referenced a letter that was written to Planner Wall \[included in the Council packet\]. The concerns listed related to drainage, utility, screening, and disruption issues. Attorney Christensen then began a review each of the issues as outlined in the letter. Chair Field asked if he was correct in his assumption that, since this request was for a Preliminary Plat and that a Final Plat request would be forthcoming, that City staff would deal with many of the issues outlined in the letter. Planner Wall confirmed that assumption and stated that staff, based June 23, 2015 Mendota Heights Planning Commission Meeting Page 3 on the Laughlin’s comments, has recommended revisions to the approval conditions that would reflect their concerns. Commissioners asked questions regarding a recently adopted ordinance and if that matched the construction hours requested by the Laughlins. Dick Bjorklund returned to address the concerns expressed. Staff recommended that the concerns and issues expressed be discussed between the two parties and some sort of agreement be obtained and become part of the developer’s agreement. Many of the issues did not relate to the Preliminary Plat request. Chair Field asked for a motion to close the public hearing. COMMISSIONER NOONAN MOVED, SECONDED BY COMMISSIONER HENNES, TO CLOSE THE PUBLIC HEARING. AYES: 7 NAYS: 0 COMMISSIONER ROSTON MOVED, SECONDED BY COMMISSIONER VIKSNINS, TO RECOMMEND APPROVAL OF PLANNING CASE 2015-20, PRELIMINARY PLAT APPLICATION FOR THE OAKS SUBMITTED BY DICK BJORKLUND PROPERTIES, LLC BASED ON THE FOLLOWING FINDINGS OF FACT: 1.The proposed plat meets the purpose and intent of the Zoning Code, including proposed uses, lot size, lot width and setbacks. The lot widths for Lots 1, 2, and 3 meet the intent of the Code in terms of access and adequate spacing, even though they do not meet the letter of the Code definition. 2.The proposed plat meets the purpose and intent of the Subdivision Code, including grading, drainage, and lot arrangement. AND WITH THE FOLLOWING CONDITIONS: 1.$8,100.00 Park Dedication Fee is to be paid to the City, prior to final plat approval. 2.Parties involved with development of the platted area. This will include a detailed description of municipal utility installation, landscaping and building and driveway placement. 3.All grading, construction activity, and stormwater management facilities associated with future development of the platted area will be in compliance with all Federal, State, and Local Regulations and Codes, as well as in compliance with the City. 4.Construction activity will be in compliance with restrictions outlined in City Code. 5.A final plat is submitted for City Council review. 6.A final landscape plan is provided, including planting sizes, as part of the building plans. AYES: 7 NAYS: 0 Chair Field advised the City Council would consider this application at its July 7, 2015 meeting. June 23, 2015 Mendota Heights Planning Commission Meeting Page 4 PLANNING CASE #2015-21 Saint Thomas Academy Variance at 949 Mendota Heights Road City Planner Nolan Wall explained that the applicant was requesting a variance for the sign size requirements for a non-residential use within a residential zone. The subject property is approximately 43 acres and contains the Saint Thomas Academy campus. The applicant proposes to erect the proposed sign on the control room/press box structuring which overlooks the athletic field/track facing Mendota Heights Road. The structure was approved by Conditional Use Permit in 1994, as part of Planning Case 94-04. The proposed sign exceeds the size requirement. Planner Wall explained the standards to be applied when reviewing a variance request and how this request meets those standards. Staff recommended approval of this variance request. Commissioners asked questions regarding the size of this sign when compared with other educational institutions in the area and if there has been any consideration given to creating a new zoning district. Mr. Paul Solmon, Director of Facilities at Saint Thomas Academy came forward to answer any additional questions from the Commission regarding the purpose of the sign. Chair Field opened the public hearing. Seeing no one coming forward wishing to speak, Chair Field asked for a motion to close the public hearing. Chair Field asked for a motion to close the public hearing. COMMISSIONER MAGNUSON MOVED, SECONDED BY COMMISSIONER NOONAN, TO CLOSE THE PUBLIC HEARING. AYES: 7 NAYS: 0 COMMISSIONER NOONAN MOVED, SECONDED BY COMMISSIONER MAGNUSON, TO RECOMMEND APPROVAL OF PLANNING CASE 2015-21, VARIANCE REQUEST TO EXCEED THE SIGN SIZE REQUIREMENTS IN A RESIDENTIAL ZONING DISTRICT BASED ON THE FOLLOWING FINDINGS OF FACT: 1.The subject parcel is significantly larger than standard residential properties, which restricts the ability to read signage from the surrounding streets. 2.The maximum sign area requirement imposed in the R-1 District better reflects the signage needs of residential uses, rather than institutional uses, and is unique to the subject property. 3.A sign in the proposed location meeting the maximum sign area requirement would likely be too small for its intended purpose due to the expansive setback from Mendota Heights Road and presents a practical difficulty for the applicant. June 23, 2015 Mendota Heights Planning Commission Meeting Page 5 4.Similar signage consistent with the size of the proposed sign has been approved for other buildings on campus and for other institutional uses in the City. 5.The proposed sign will not negatively impact the surrounding properties AND WITH THE CONDITION THAT THE APPLICANT OBTAIN A SIGN PERMIT. Several commissioners commented that potential amendments to the Code to address institutional uses in residential zones should be considered by the City Council in the near future. AYES: 7 NAYS: 0 Chair Field advised the City Council would consider this application at its July 7, 2015 meeting. PLANNING CASE #2015-23 Sean Doyle and John Karas Lot Split and Variance at 650 North Freeway Road City Planner Nolan Wall explained that the applicant was requesting a Lot Split and Variance for the subject parcel located at 650 North Freeway Road. The subject parcel is approximately 51,000 square feet, zoned R-1, and guided as Low Density Residential Development on the Comprehensive Plan. Planner Wall shared an image of the property location. If approved, a garage addition would be constructed on the existing single-family dwelling and a new single-family dwelling would be constructed on the easterly parcel. Planner Wall then explained the R-1 district lot standards and how the proposed properties fit within those standards. The existing driveway accessing the attached side loaded garage on Parcel A would be removed. Since the existing garage would be inaccessible without crossing Parcel B, which would be a nonconformity, the applicant proposes to construct a new garage addition on the front of the house. Staff included requirements for building permit approval and a certificate of occupancy issuance prior to the recording of the subdivision as condition of approval in order to ensure that the non- conformity is addressed as part of this application. The proposed parcels, the existing dwelling, and the proposed garage addition all meet the R-1 district requirements. Commissioners asked questions regarding the removal of the driveway, the addition of a condition that the old driveway must be removed prior to the issuance of a building permit, and if the removal of the driveway would address the issue with the slope. In reference to the variance request, Planner Wall explained that the code requires a subdivision to be designed so that no construction or grading will be conducted on slopes greater than 25% in grade. Parcel B does contain slopes greater than 25% within the proposed building pad area that would be disturbed by construction and grading activities for the proposed dwelling. June 23, 2015 Mendota Heights Planning Commission Meeting Page 6 Staff feels that the intent of the standard is most likely to protect and preserve natural slopes from development. He then went through the three standards that apply to a variance request and how this request fulfills those standards. Public Works Director/City Engineer John Mazzitello added his comments on how this request would be in compliance with the intent of the Code. Staff recommended approval of the subdivision and variance requests with conditions. Commissioners asked questions regarding the Code that addresses slopes differentiating between natural and man-made slopes and why the extension on the deadline. Mr. John Karas and Mr. Sean Doyle came forward to answer any additional questions from the Commission regarding the plans for the driveway and the abandoned garage, and plans to address the sloping issues when removing the driveway. Chair Field opened the public hearing. Mr. Dan Norman, 1937 South Lane, commented that if were to be asked if he wants a structure to be located near his home his answer would be no but that would be the Commission’s decision. Regarding the standard that the request “will not alter the essential character of the neighborhood,” Mr. Norman asked for an example of something that would alter the character. Mr. Patrick Derosia, 641 South Freeway Road, expressed his concerns about the building of a 2015 home near homes built in the 1960’s or 1970’s would definitely change the character of the neighborhood. Also, the majority of the lots in the area are much larger than the proposed lots would be. Mr. John Karas returned to address the concerns raised. Chair Field asked for a motion to close the public hearing. COMMISSIONER VIKSNINS MOVED, SECONDED BY COMMISSIONER MAGNUSON, TO CLOSE THE PUBLIC HEARING. AYES: 7 NAYS: 0 COMMISSIONER VIKSNINS MOVED, SECONDED BY COMMISSIONER NOONAN, TO RECOMMEND APPROVAL OF PLANNING CASE 2015-23, SUBDIVISION AND VARIANCE REQUESTS, BASED ON THE FOLLOWING FINDINGS OF FACT: 1.The proposed subdivision request meets the purpose and intent of the City Code and is consistent with the Comprehensive Plan. 2.The proposed garage addition to the existing dwelling addresses the nonconformity caused by the proposed subdivision request and subsequent construction of a new single-family home. 3.The impacted slopes over 25% appear to be man-made as part of construction and reinforcement of the existing driveway. June 23, 2015 Mendota Heights Planning Commission Meeting Page 7 4.The impacted slopes over 25% are less than the current 33% maximum industry standard for constructed slopes and comprise only 5.3% of the subject parcel. AND WITH THE FOLLOWING CONDITIONS: 1.The existing driveway serving the attached garage is removed, and a building permit is approved and certificate of occupancy issued for the proposed garage on Parcel A, prior to the subdivision being recorded by Dakota County. 2.Park dedication fee in the amount of $2,700, in lieu of land, is collected after City Council approval and before being recorded by Dakota County or issuance of any additional permits by the City. 3.Street reconstruction assessment fee in the amount of $3,700, as part of North Freeway Road Project 2002-02, is collected after City Council approval and before being recorded by Dakota County or issuance of any additional permits by the City. 4.The applicant shall dedicate the following drainage and utility easements on both parcels to be denoted on the Certificate of Survey submitted to Dakota County: 10-foot wide along the front property lines and 5-foot wide along the side and rear property lines. 5.Connection charges for sanitary sewer and water main shall be paid prior to issuance of a building permit. 6.The applicant shall submit grading and utility plans and a dimensioned site plan with associated easements, subject to review and approval by the City Engineering Department as part of any building permit application. 7.All grading and construction activity will be in compliance with applicable federal, state, and local regulations and codes, as well as in compliance with the City’s Land Disturbance Guidance Document. Commissioners made comments on why they were in support of this application; it satisfied the standards applicable for a variance request and the slope appears to be man-made and not an alteration of a natural slope. AYES: 7 NAYS: 0 Chair Field advised the City Council would consider this application at its July 7, 2015 meeting. PLANNING CASE #2015-22 City of Mendota Heights Proposed City Code Amendment Concerning Interim Uses Planner Nolan Wall explained that the City of Mendota Heights was considering amendments to Title 12, Chapter 1, Article B and L of the City Code concerning interim uses. He then provided background information on the request and briefly highlighted the proposed amendments. Staff recommended that the Commission review the proposed amendments and make a recommendation to the City Council. Commissioners asked questions regarding the rationale for number 7 that reads, “The use has ceased for a continuous period of at least six (6) months”. June 23, 2015 Mendota Heights Planning Commission Meeting Page 8 Chair Field opened the public hearing. Seeing no one coming forward wishing to speak, Chair Field asked for a motion to close the public hearing. COMMISSIONER ROSTON MOVED, SECONDED BY COMMISSIONER HENNES, TO CLOSE THE PUBLIC HEARING. AYES: 7 NAYS: 0 COMMISSIONER ROSTON MOVED, SECONDED BY COMMISSIONER NOONAN, TO RECOMMEND APPROVAL OF DRAFT ORDINANCE 479, AS REFERENCED IN PLANNING CASE 2015-22 AS PROPOSED BY STAFF. AYES: 7 NAYS: 0 Chair Field advised the City Council would consider this application at its July 7, 2015 meeting. Adjournment COMMISSIONER ROSTON MOVED, SECONDED BY COMMISSIONER MAGNUSON, TO ADJOURN THE PLANNING COMMISSION MEETING AT 8:23 P.M. AYES: 7 NAYS: 0 June 23, 2015 Mendota Heights Planning Commission Meeting Page 9 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY, MINNESOTA BOARD OF ZONING APPEALS MINUTES June 23, 2015 The meeting of the Mendota Heights Planning Commission acting as the Board of Zoning Appeals was held on Tuesday, June 23, 2015 in the Council Chambers at City Hall, 1101 Victoria Curve at 8:35 p.m. The following Commissioners were present: Chair Litton Field, Jr., Commissioners Howard Roston, Michael Noonan, Doug Hennes, Mary Magnuson, Christine Costello and Ansis Viksnins. Those absent: None. Others present were City Planner Nolan Wall, Public Works Director/City Engineer John Mazzitello, City Administrator Mark McNeill, and City Attorney Tom Lehmann. Approval of Agenda The agenda was approved as submitted. Hearings CASE #2015-18 STEP Academy Appeal from zoning determination to allow a charter school use at 1345 Mendota Heights in the Industrial Zoning District Chair Litton Field, Jr. noted that all of the commissioners had received and reviewed the packet of materials in advance of the meeting. City Planner Nolan Wall explained that the applicant is seeking appeal for an interpretation of text in the City Code concerning the definition of a trade school. The City Code designates the Planning Commission as the Board of Zoning Appeals. The appellant in this case, STEP Academy, is a charter school serving grades six through twelve. Staff was contacted by representatives of the appellant about leasing space at 1345 Mendota Heights Road, which is zoned industrial and is currently occupied by Sanford-Brown College. Based on staff interpretation, they were informed that the proposed use was not permitted and would require a code amendment to locate within the Industrial District. Representatives from the appellant then submitted a formal request for a zoning determination based on the proposed use being considered a trade school under the existing definition. Staff responded that the use was still not permitted and a formal appeal was filed for consideration before the Board of Zoning Appeals in compliance with City Code. Related correspondence was included in Articles A, B, and C of the packet. June 23, 2015 Mendota Heights Board of Zoning Appeals Meeting Page 10 According to the Code, a trade school is defined as; An educational institution, either private or public, which offers classes and training to full and/or part time students including, but not limited to, technical, mechanical, services and computing fields. Based on this definition, past City Council determinations, it remains the City’s position that a charter school is not intended to be included in the trade school definition and is therefore not permitted as a nonmanufacturing use within the Industrial District. A charter school use would be consistent with the use categories “public and parochial schools,” which are permitted uses within the residential zoning districts, as well as “colleges and schools, public and private”, which are permitted within the B-1A Business Park District. Planner Wall continued by stating that if a charter school were to be included as part of the trade school definition, staff feels that other institutional uses, regardless of grade level, may also qualify under this definition. It there were the case, it would seem difficult to come to conclude that a K- 6 could somehow be construed to be a trade school simply because the definition does not include a grade level and they offer classes and training in various fields as part of the curriculum. Staff contends that the intent of the existing trade school definition is to further qualify the companion permitted use in the Industrial District, which is “trade schools and colleges or universities.” In addition to the Industrial District, trade schools are also conditional uses in the B-3 General Business Zone, which would also allow for charter schools if this appeal is granted in this case and ultimately upheld by the City Council. Trade school uses that have been occupied the Industrial District are post-secondary institutions and the use category, as was stated, includes colleges and universities, both of which are post- secondary in nature, and were added by amendment as well as defined along with trade schools in 2004 to recognize the change for Brown Institute to Brown College when they began to offer four- year degrees. The Industrial District does contain a mix of land uses; the vast majority of those uses are office and industrial. A determination that would allow a charter school use to be permitted by right in the Industrial District may allow for proliferation of other educational institutions that were not envisioned as part of the long-term planning for the area. In an effort to maintain the industrial and business character of the Industrial District, the City is now undertaking a redevelop planning process to ensure its long-term success. Therefore, careful consideration should be taken when considering allowing educational institutions, especially as permitted uses. Charter schools interested in operating within the Industrial District have approached the City Council in the past. At those times the parties were informed that a code amendment would be required for the use. The Council raised the following potential land use issues for charter schools in the Industrial District:  Potential insufficient off-street parking  Lack of on-site recreational opportunities for students  Bus and student traffic  Proliferation of other educational uses within the Industrial District  Land use conflicts with the existing and future uses June 23, 2015 Mendota Heights Board of Zoning Appeals Meeting Page 11  Maintaining the industrial character of the Industrial Park While this appeal stands on its own merits, it is important to note how past Council’s have considered charter school uses within the Industrial District and; therefore, why staff is making the aforementioned determination in this case. Staff feels it further reinforces the potential issues that could be created by allowing a charter school as a permitted use in the Industrial District. As for the code amendment process itself, staff has informed all interested parties inquiring about charter school uses within the Industrial District that a formal code amendment process is required to consider the use. If an applicant were to make such a request, staff would recommend potentially that the use be considered as a conditional use or potentially an interim use, if ultimately adopted by the City Council; but not as a permitted use. A conditional use permit or an interim use permit requires a public hearing and that reasonable conditions be placed on the use based on potential negative impacts to surrounding properties and the public. Staff continues to recommend a code amendment as the most equitable and transparent process for consideration of a charter school use in the Industrial District. Staff recommended that the Board of Zoning Appeals consider denying or granting the appeal from a zoning determination in this case and to forward that recommendation to the City Council. Regardless of action on the appeal, the decision will be forwarded to the City Council who may choose to review or revise the decision of the Board of Zoning Appeals in compliance with the City Code. Board members asked questions regarding the current existence of schools within the Industrial District that the City identifies as trade schools, the existence of any other schools of any kind within the Industrial District, post-secondary not being part of the definition of a trade school, the reason why universities and colleges were added to the amendment was due to Brown Institute being changed to Brown College, and references in state law to “trade and/or vocational” schools implying post-secondary. Chair Field opened the public hearing. The appellant came forward and identified herself as Ms. Cindy Lavorato, Attorney for STEP Academy. She raised a procedural issue that, in her view, deprives the Planning Commission of jurisdiction to make a decision in this matter having to do with the 60-day time limit that, in her view, has not been adhered to by the City. She provided documents to substantiate her position in this regard. City Attorney Tom Lehmann explained that this procedural issue is outside of the Board’s prevue for tonight. If this is an issue they wish to raise at some point for further legal action, they may do so. The Board can receive what she has, but it is outside of the item before the Board tonight. June 23, 2015 Mendota Heights Board of Zoning Appeals Meeting Page 12 Attorney Lavorato continued by stating that this is not a procedural issue, but a jurisdictional one. The City has lost its ability to deny this request because it did not take action within the 60-days provided by State Law 15.99. The request for determination was made of Planner Wall on April 17, 2015. It is now June 23, 2015. The 60 days have elapsed and the City has not taken action to approve or disapprove the application under 15.99; the lack of action on the part of the City becomes an approval. Attorney Lehmann replied that this is an issue that may have to be decided in court should the applicant wish to proceed along those lines. It is not for this body to make that determination. If the applicant wishes to proceed along those lines it may be moot to even have the hearing tonight. It is not this body’s responsibility to decide whether or not the City has met the 60-day requirement. Time is of the essence since the school really needs to get the lease negotiated and completed by the end of July. Attorney Lavorato stated that she does not believe this is a matter for the court and does not believe that it is a matter for the City Council. If the statute was looked at then it would be determined that the City does not have jurisdiction to decide this issue. If the City is not prepared to make a decision on the jurisdictional issue, then she would ask for the liberty for to present the information of the people that have been waiting this evening for two hours already to provide. Mr. Richard Schadegg, 3373 Rolling Hills Drive, Eagan is the property manager of 1345 Mendota Heights Road and is in support of the sublease to STEP Academy. Brown College has been the tenant since before the building was purchased. Millions of dollars was spent to transform what was an office/showroom building into classrooms that are fully equipped with audiovisual equipment, technology, etc. It has been operating as a school and they would like to see that use continue going forward. Brown College is going to suspend operations in Minnesota as soon as they graduate their current class of students. The property was purchased subject to a 10-year lease by Brown College and they have the option to terminate that lease agreement in a couple of years. From an economic standpoint, the owner has a strongly invested interest in seeing that this continues as a school. If they can continue operations with STEP Academy without losing any income or having to retrofit the building, obviously has an enormous impact economically for the owner. When asked if he had any comments in regards to the revision of the zoning definition, he replied that he has no expertise in this area and would not feel qualified to comment. Board members asked questions regarding the capacity of the building for students. Ms. Sandra Olmstead, 3621 Oak Creek Drive West, Vadnais Heights is the Vice-chair of the Board of Directors of STEP Academy. She is also currently a professor at Augsburg College and has a PhD in Medicinal Chemistry, which she feels makes her a natural fit to be a part of STEP Academy. She gave a brief background on the school and its mission to prepare students for careers in science, technology, engineering, and mathematics fields. Its mission is to make sure that the senior class is entirely in PSEO (Post-Secondary Enrollment Options) so that a year of college is already behind them when they leave. There are only a total of 200-250 students in grades six through twelve; most of them are in the middle years of eight and nine because the school has only been in operation for three years. They are currently leasing a building in Inver Grove Heights that was an old June 23, 2015 Mendota Heights Board of Zoning Appeals Meeting Page 13 elementary school. It is inadequate for the curriculum they have; it has no wet labs, has retrofitted technology throughout the building, and it is too small. They were thrilled when the opportunity to move to the Brown College building because it is already wired, has the necessary lab equipment, etc. She continued to provide additional amenities and reasons why this building would be perfect for their needs. Board members asked questions regarding additional classes available for the students, testing, certificates or diplomas available, percentage of graduates that continue onto college, and they clarified that the issue before them this evening is the zoning – not the curriculum, classes, or students of the school, or of the effectiveness of the school itself. They also asked questions regarding the school’s sponsorship. th Mr. Chad Blihovde, 3101 34 Avenue, Minneapolis, of Java Properties was representing STEP Academy Charter School and their leasing of the charter school site. He stated that as far as parking goes, by the time a lot of these students reach twelfth grade are in college and do not have a lot of demand for parking. They have been looking for over a year for a site for this school. It is very difficult to find a site like this one – it is ready to go as a charter school – a school set up as high tech as this one. It is an incredible opportunity to teach children. Board members asked Attorney Lavorato if there were any assurances that the sought after lease would only be for five years. She replied that the charter itself and the authorizer is only for five years so the school cannot extend itself into any sort of commitments or lease agreements or contracts that extend beyond five years because they don’t have the authority to do so. There is a natural legal limitation on the extent of the lease. The school is willing to provide the City whatever assurances needed that it would be no more than a five-year lease. She also stated that she understands the City’s need to do the planning around the Industrial District, she has looked at the City Council minutes and understands what the political context is for that request. As she views it, everybody wins if the school is allowed to move in and have a five-year lease. The City could move forward with its zoning amendment to clarify that trade school means post secondary institutions – that takes care of the issue Planner Wall was concerned about in terms of the possible proliferation of K-12 schools in the Industrial District. Everybody would win if this were done this way:  The City gets to do its long-term planning  The school gets to have space for five years  Sanford-Brown gets to sub-lease  The property owner can maximize the use of the property  The City could then clarify the ordinance as intended to exclude all uses that are not post- secondary Chair Field clarified that the focus in this meeting is the appeal of the zoning administrator’s determination. Attorney Lavorato replied that she was perfectly prepared to address the underlining legal issues, which involve the interpretation that the City has made of this zoning ordinance. Yes, the zoning ordinance is one way to challenge the City’s action but it is not the only way. The zoning provisions states very clearly that an appeal can be made from any order, requirement, permit, or decision made by the zoning administrator under this chapter and June 23, 2015 Mendota Heights Board of Zoning Appeals Meeting Page 14 pertaining to any interpretation of this text of this chapter. An amendment to the Code does not have to take place in order to get the City’s interpretation challenged. They asked for a formal opinion on April 17, they heard back on April 24, she appealed that determination on May 14; in the meantime the City went forward with a proposed ordinance amendment; and they were not put on the schedule for a hearing until this evening. Once everyone in attendance has been heard from she would like to continue with the legal arguments made in their materials and would like to respond to what staff has represented and what City Attorney Lehmann has argued to. She believes there is a very significant legal issue here for this commission to grapple with. In her view, if an ordinance is not clear they are to be strictly construed against the City in favor of the property owner if there is any ambiguity. There is clearly ambiguity here or the City would not have had the need to come forward with a proposed amendment to clarify that K-12 is not included. In her view, legally, whether the time limit or with the interpretation, this use is not clearly excluded. In the absence of a clear exclusion, you have to go with the property owner here. The board members requested that Attorney Lavorato focus on the dispositive issue; how is this a trade school. Attorney Lavorato stated that, in her opinion, the dispositive issue is how has the City defined this in a way that expressly excludes K-12 schools. When pressed she described a trade school, under the City Code, as “An educational institution, either private or public, which offers classes and training to full and/or part time students including, but not limited to, technical, mechanical, services and computing fields” and explained that the STEP Charter School is an educational institution, public or private, offers classes and training, has full time students, and includes classes in technical, mechanical, services, and computing fields. It meets all of those definitions. Any public school in the State of Minnesota has to meet the academic standards and benchmarks that are established by the Commissioner of Education. It does not mean that a school, having that requirement, cannot focus specifically on subject areas, themes, and content areas that are specific. Many charter schools do just that. Just because the charter school meets the definition and requirements of the state’s academic standards does not mean that it is not focused on aspects that are specifically addressed in the definition. Board members asked whether every high school in the state teaches computer science, teaches mathematics, teaches some form of science and have a laboratory. They also questioned her interpretation of what is conventional high school education and putting it into a box of a trade school, which in common understanding and usage is a school that teaches the trades – and a common definition of trades is mechanics, carpenters, skilled workers – how high level high school education in stem subjects and call them trades. The grade level has no bearing on this and whether the City wants to change its code to specify grade level does not contribute to the ambiguity at all nor does it necessarily cure an ambiguity. Mr. Abdullahi Ahmed, Board chair of STEP Academy and a parent of a student in seventh grade, explained the reasons why they chose the Sanford-Brown College building as a location for the STEP Academy. June 23, 2015 Mendota Heights Board of Zoning Appeals Meeting Page 15 Mr. Solmon Ali, 13665 Hanover Court, Apple Valley, a PSEO student at STEP Academy came forward and explained what he has learned at STEP Academy and his belief that it does a great job of getting students ready for college. Attorney Lavorato returned to respond to the staff report:  “Based on the existing City Code provisions and past City Council determinations” – the City Council in the City has never been presented with a decision on whether charter schools are permitted. They have been approached for informal feedback but there has never been a finding precedence that has been made by City Council.  “. . . a determination that allows this use to be permitted by right in the Industrial District may allow for proliferation of other educational institutions that were not envisioned as part of the long-term planning for the area” – she feels that schools would have to show that the mission of the school, like STEP Academy, is to prepare students for a particular trade in technology or science or mathematics. Also, if the proposed amendment goes forward this would be a non-issue.  The land use discussion in the staff report shows that the Industrial District currently allows a mix of permitted conditional and accessory uses. She also noted that the Exhibit E clearly indicates that District 197, as recently as 2000, operated community education programs in the Industrial District.  Under the land use tables adult daycare is permitted in the Industrial District. She does not understand how adult daycare in terms of the concerns raised by the Commission, is any different than a K-12 school.  Students at STEP Academy in Inver Grove Heights could also be enrolled at Sanford- Brown in the PSEO program and that would be permitted under the City’s code. However, the same STEP Academy students, taking the same courses, cannot have their school located in the Industrial District.  The City has repeatedly felt that the appropriate procedure in this case is to require a code amendment. She disagreed as there are many ways to challenge City actions and this is only one of them. STEP Academy did request in writing on April 17 a determination on whether this lease would be permitted. There was no requirement that the school go a lengthy and probably difficult process of securing a code amendment.  Referring to her June 17 letter, Attorney Lavorato reiterated her legal arguments with explanations. BOARD MEMBER VIKSNINS MOVED, SECONDED BY BOARD MEMBER COSTELLO, TO CLOSE THE PUBLIC HEARING AYES: 7 NAYS: 0 BOARD MEMBER VIKSNINS MOVED, SECONDED BY BOARD MEMBER MAGNUSON, TO ADOPT RESOLUTION 2015-44 DENYING AN APPEAL FROM A ZONING DETERMINATION BASED ON THE FOLLOWING FINDINGS OF FACT: 1.STEP Academy is not a trade school, college, or university. June 23, 2015 Mendota Heights Board of Zoning Appeals Meeting Page 16 2.STEP Academy is not a trade school because it provides a general college preparatory curriculum rather than the common and ordinary understanding of a trade school, which is a vocational school. 3.STEP Academy is not a college or university because it does not confer post-secondary degrees. Board member Hennes stated that he would vote against this motion because the City has not done a good job of defining what a trade school is or any other kind of a school. He believed that the appellant made a pretty good case. Board member Magnuson supported the motion because she believes that STEP Academy, although she was very impressed with the school, their curriculum, and the students; she does not think that STEP Academy can fit into the definition of a trade school. Attorney Lavorato did everything she could to make that case but in the end it’s putting a square peg into a round hole and it just doesn’t fit. She believes that a code amendment could solve the problem and she would be open to a code amendment; she has no problem with a charter school being in the Industrial District if that is where they choose to be. But she does not think that as a matter of law it fits the definition of a trade school. Board member Roston proposed a friendly amendment to the motion, which is “the proposed use is also not conditionally permitted in Section 12-1-G-1 or 12-1-G-2.” Board member Viksnins agreed to the friendly amendment. Board member Roston continued by saying that he is conflicted as he would love to see this use in the area and he is not opposed of this use – either personally or in his role as a Planning Commissioner – but he is stuck on the language of the ordinance. He will support the motion but solely because that is what is required of him under the ordinance. He would love to come up with a way to make this work for the school. He agrees with staff that this would require a code amendment. Board member Viksnins stated that it gives him no pleasure to make this motion; however, his read of the ordinance is pretty clear. STEP Academy is just not a trade school. He agreed with all of the comments made and believes this is a very impressive school. Chair Field echoed all of the comments and expressed his wish that there could be a way to do it; however, given the confines of the application or in this case the appeal in front of them their hands are tied. Chair Field called for the vote denying an appeal from a zoning determination based on the four findings of fact: AYES: 6 NAYS: 1 (HENNES) Chair Field noted that this opinion would be forwarded to the City Council at their meeting on Tuesday, July 7, 2015. The City Council does have the option to review or revise the decision of June 23, 2015 Mendota Heights Board of Zoning Appeals Meeting Page 17 the Board of Appeals. Based on that aspect of it and based on code requirements that a public hearing be held in order for the Council to take action if they so chose on this item, staff would go th ahead and potentially notice that public hearing for July 7. Staff can meet the deadlines and that is their intention at this point. Board member Roston asked if they wanted to pull out all of the stops and figure out if they had the political and practical support to amend the ordinance as soon as they could to make sure to accommodate the time schedule, what could be done as a City to make that happen on time. City Attorney Tom Lehmann indicated that would also have to go through the City Council. Staff th could get a sense of that with the regards to the hearing on July 7. Planner Nolan Wall stated that he would leave that up to the City Council. Board member Magnuson stated that, in the past, when there have been issues where it was thought that code amendments would be appropriate, recommendations were attached recommending that the Council consider a code amendment to do a certain thing. Planner Wall replied that this would be helpful and he and City Administrator Mark McNeill could pass along the Planning Commission comments and sentiments indicating that there was a desire for a code amendment and to expedite it as quickly as possible. BOARD MEMBER ROSTON MOVED, SECONDED BY BOARD MEMBER VIKSNINS, TO ASK THE CITY COUNCIL TO CONSIDER EXPEDITING A HEARING AND THEN AT THE APPROPRIATE TIME AND WITH PROPER PROCEDURE AS QUICKLY AS POSSIBLE CONSIDER PERMITTING OR CONDITIONALLY PERMITTING A CHARTER SCHOOL IN THE INDUSTRIAL DISTRICT. Discussions were held in favor of and in opposition to the motion. BOARD MEMBER ROSTON MOVED, SECONDED BY BOARD MEMBER HENNES, THAT THE CITY COUNCIL AUTHORIZE THE DRAFTING OF AN AMENDMENT FOR AN INTERIM USE OF A CHARTER SCHOOL IN THE INDUSTRIAL DISTRICT QUICKLY. Board Member Noonan recommended the motion be amended to read “use of property in the Industrial District for a school.” Board member Roston agreed to the friendly amendment. To clarify, BOARD MEMBER ROSTON MOVED, SECONDED BY BOARD MEMBER HENNES, TO RECOMMEND TO THE CITY COUNCIL TO AUTHORIZE THE DRAFTING OF AN AMENDMENT TO ALLOW FOR CHARTER SCHOOLS IN THE INDUSTRIAL ZONE. AYES: 2 (ROSTON, HENNES) NAYS: 5 (NOONAN, FIELD, MAGNUSON, COSTELLO, VIKSNINS) Members of the Board of Zoning Appeals expressed a desire to find a way to accomplish this, but acknowledged that, given the current appeal in front of them, there was nothing they could do to address it. June 23, 2015 Mendota Heights Board of Zoning Appeals Meeting Page 18 Adjournment COMMISSIONER VIKSNINS MOVED, SECONDED BY COMMISSIONER MAGNUSON, TO ADJOURN THE BOARD OF ZONING APPEALS MEETING AT 10:02 P.M. June 23, 2015 Mendota Heights Board of Zoning Appeals Meeting Page 19 PLANNING COMMISSON MINUTES June 23, 2015 The regular meeting of the Mendota Heights Planning Commission continued on Tuesday, June 23, 2015 in the Council Chambers at City Hall, 1101 Victoria Curve at 10:02 p.m. The following Commissioners were present: Chair Litton Field, Jr., Commissioners Howard Roston, Michael Noonan, Doug Hennes, Mary Magnuson, Christine Costello and Ansis Viksnins. Those absent: None. Others present were City Planner Nolan Wall, Public Works Director/City Engineer John Mazzitello, City Administrator Mark McNeill, and City Attorney Tom Lehmann. Verbal Review Planner Wall gave the following verbal review: PLANNING CASE #2015-15 Ordinance 478 concerning minimum requirements for single-family residential districts •Adopted by the City Council as recommended by the Planning Commission PLANNING CASE #2015-17 Conditional Use Permit, Planned Unit Development Amendments – Lemay Shores Development •Appealed to have the public hearing directly in front of City Council •City Council approved the Conditional Use Permit to Amend a Final Planned Unit Development Plan, Final Plat, and Development Agreement Staff Announcements  City Council will be having a workshop meeting on July 29. The only Planning Commission item will be to continue discussion on marketing the city-owned lots at the Village of Mendota Heights development.  City Council did approve the Project Scope and Contract for the Redevelopment Planning Grant for the Industrial District. Adjournment COMMISSIONER ROSTON MOVED, SECONDED BY COMMISSIONER VIKSNINS, TO ADJOURN THE PLANNING COMMISSION MEETING AT 10:07 P.M. June 23, 2015 Mendota Heights Planning Commission Meeting (continued) Page 20