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2011-08-30 City Council minutes-Special MtgMendota Heights City Council CITY OF MENDOTA HEIGHTS DAKOTA COUNTY STATE OF MINNESOTA Minutes of the Special Meeting Held Tuesday, August 30, 2011 August 30, 2011 Page 1 Pursuant to due call and notice thereof, the special meeting of the City Council, City of Mendota Heights, Minnesota was held at 5:30 p.m. at City Hall, 1101 Victoria Curve, Mendota Heights, Minnesota. 0 Mayor Krebsbach called the meeting to order at 5:30 p.m. The following members were present: Councilmembers Duggan, Povolny, Petschel and Vitelli. PLEDGE OF ALLEGIANCE Council, the audience, and staff recited the Pledge of Allegiance. UNFINISHED BUSINESS A) PLANNING CASE 11 -14 — WHITE PINE HOLDINGS, 750 HIGHWAY 110 AMENDMENT TO CONDITIONAL USE PERMIT FOR PLANNED UNIT DEVELOPMENT Assistant to the City Administrator Jake Sedlacek stated before council was Case 11 -14 requesting an amendment to the conditional use permit for planned unit development for Mendota Plaza Redevelopment. It pertains to Lot 6, Block 1 of that development, which is to the east of the existing building that has been remodeled on the site. This matter was discussed in the June 2011 planning commission meeting. He stated the item for the July 2011 planning commission meeting was pulled by the applicant and the matter was then discussed again at the August 2011 planning commission meeting. At the August 2011 planning commission meeting the applicant had not provided staff a formal request to extend the deadline for review. It was identified by staff that care was needed in regards to the deadline for review, as the actual deadline was September 6, 2011 which is the date of the next council meeting. Staff had spoken previously with Mayor Krebsbach about the proper procedure and felt that it would be appropriate to have a special meeting if, for some reason, a quorum would not be available at the September 6, 2011 meeting. At the August 2011 planning commission meeting, staff presented the proposal from the applicant and talked about some of the changes between the proposed development for the lot and what was approved in the original concept plan. The commission had a few questions on that matter and had some discussion with the applicant about some of the differences. As was recommended by the planning commission, before the council tonight is a resolution supporting denial of the application. It is important to note that the planning commission wanted to have this matter back for their September 2011 meeting for further discussion. However, without the request for extension they felt they had to Mendota Heights City Council August 30, 2011 Page 2 take an action on it and; therefore, in looking at the findings they were comfortable making a finding for denial of the application. Staff is recommending that this matter be returned to the planning commission for further discussion since the commission felt pressure to make a recommendation now due to the timing restrictions. Mayor Krebsbach stated that there are three directions council could take: 1. Accept the extension to the planning commission 2. Make a decision tonight and continue to review the matter 3. Make a motion to deny the application Mayor Krebsbach inquired if the council decides to deny the application at what time would the applicant be able to reapply. Mr. Sedlacek replied that, after speaking with the city attorney, if the council decides to go for denial of this matter the council could waive any period for resubmission of the material. Typically with a conditional use permit there is a six -month waiting period but legal counsel felt this is something that council could waive. Councilmember Duggan asked what the deadline is to have this ready for discussion at the September 2011 planning commission meeting. Mr. Sedlacek answered that based upon legal publication and legal notice the deadline would be Friday, September 2, 2011. Councilmember Vitelli asked for the reason given for requesting a delay. Mr. Sedlacek stated that no reason was given when staff received the request for an extension to November 15, 2011. Mayor Krebsbach commented that she feels that excellent staff work has been performed in providing this information. She continued this same iteration of the staff work was available in June and July planning commission meetings and was available again for the August planning commission meeting. The items found to be reason for not approving, that are the background for the resolution to deny, have been thoroughly available and reviewed by the planning commission and are very extensive. Mayor Krebsbach continued by stating that a particular item that has been of concern is that the city requires consent prior to transfer and that is not available, which is the basis for evaluating the entire application. Mr. Ken Henk of Paster Enterprises stated that he and Mr. Chuck Rothstein of White Pine Holdings LLC were before the planning commission to offer some additional information and rebuttal on some of the staff comments. Since Mr. Rothstein is out of town and is the actual applicant, he would agree with the staff's recommendation for extension and take it back to the planning commission for their September 2011 meeting. Mayor Krebsbach stated that Mr. Henk makes a very good point and that is without the consent to transfer the property it is still owned by Paster Enterprises. Therefore council is not hearing from the actual applicant for this amendment to the conditional use permit. Mayor Krebsbach suggested to the council that this topic be added to the agenda for the September 6, 2011 council meeting and the consent to transfer received before then, and that the applicant be present to speak to the conditional use permit. At that time, council could decide to extend or deny the application. Mendota Heights City Council August 30, 2011 Page 3 Mr. Henk commented that he is unsure when Mr. Rothstein will be back in town and with the long Labor Day weekend coming up, he felt there is still much discussion that needs to take place with the applicant and staff over the issues. He continued it would be beneficial for all parties involved to refer it back and have additional meetings with Paster Enterprises, White Pine Holdings, and staff before bringing it before the council again. Mayor Krebsbach replied that the council needs the consent to transfer before they can really evaluate the application. She explained Paster Enterprises is not the applicant but that White Pine Holdings is the applicant. If Paster Enterprises can provide the consent to transfer even if Mr. Rothstein is out of the country he could designate someone to speak on his behalf. The application that council would then be reviewing would be from White Pine Holdings because the transfer document would have been received. City Attorney Tami Diehm stated that White Pine Holdings and Paster Enterprises have submitted a request for consent to the transfer of the property. However, in response to that request, the city asked them to provide a series of items that are outlined in the original planned unit development agreement. To date staff has not received the requested information. Staffs' position has been that as soon as that information is received, they would be happy to put that item on a regular council agenda so that the council can grant their consent or ask additional questions about that transfer. The applicant has requested that staff move forward with the evaluation of the amendment and simply have the consent to transfer be a condition of the building permit. Staff would prefer to evaluate that consent to transfer either alongside with or prior to the overall amendment being determined. Mayor Krebsbach commented that what is needed from White Pine Holdings and Paster Enterprises is that consent to transfer; not to have the council review everything else and it would be conditional. This is also the recommendation of staff. Councilmember Vitelli stated that it seems like the council and staff is jumping through all kinds of hoops. There is an application process, the deadline has not been met, Mr. Rothstein is not available, and so he is recommending denial. He continued the clock should start again and this should be done correctly. Councilmember Duggan expressed his agreement with Councilmember Vitelli's comments. He also stated that it is not as if this is something new as it has been around for almost two years. Somewhere along the line there was a switch from party A for housing to party B representing White Pine Holdings apparently. He continued by stating that he is amazed that White Pine Holdings has not read Paster Enterprises' developers agreement with the city or understands it. Mr. Duggan finds this very troubling as it maligns Paster Enterprises and the city's legal team and the development of that. It also troubles him that White Pine Holdings is not in attendance. He questioned that an organization of this size does not have a number two person or a legal person to represent them who could be in attendance. He continued they made a presentation in June that was tabled by the planning commission, they pulled it at the last minute in July, they did not show up in August, they are not here this evening, and there has not even been a courtesy letter to the mayor in relation to this. Councilmember Duggan stated he is in support of the denial and having this process start over again. Mendota Heights City Council August 30, 2011 Page 4 Mr. Henk replied that Paster Enterprises did not anticipate that the planning commission this past week would vote on this. Paster Enterprises attended as the current owner of the property, to provide additional information on some of the past history, things that Mr. Rothstein was not aware of over two years ago when this process took place. He continued he has been up in Canada on a fly -in fishing trip without a phone and is probably unaware that this was voted on. Paster Enterprises met with staff and Mr. Rothstein the prior week and attended the planning commission meeting to provide additional information about that development. He feels that this should continue, as this was a long process with their original approval. He continued it went from 2006 to 2007 and finally in April of 2009 they received their final approval. He would rather not have this denied and then possibly wait another six months and further delay the next phase of this development. He concurs that everyone needs to be in agreement and there is quite a bit of work required between the applicant and staff and then it going through the planning commission before it is again presented to the council. Councilmember Duggan responded that should this go forward as a denial they will have six months to sit down and work out all of the details, come back, and hopefully come with a program that will meet all of the standards that Mendota Heights has requested. Mayor Krebsbach responded that the council does have the right to set the time in which they could reapply. Hypothetically council could deny tonight and they could reapply tomorrow. Councilmember Petschel expressed her support of Mayor Krebsbach's stand in regards to the consent to transfer. She continued that she saw the letter that City Attorney Diehm drafted and her request for further information and her concerns echoed Councilmember Petschel's. To date she has not seen a (/ response to any of those concerns or issues. City Attorney Diehm stated that she did receive a responsive letter from Paster Enterprises' attorney, which indicated the city would be receiving the follow -up information directly from White Pine Holdings but that information has not been received. Councilmember Vitelli moved adoption of RESOLUTION DENYING PLANNING CASE 11 -14 — WIITE PINES HOLDINGS, 750 HIGHWAY 110 AMENDMENT TO CONDITIONAL USE PERMIT FOR PLANNED UNIT DEVELOPMENT AND ALLOWING WHITE PINE HOLDINGS TO REAPPLY IN THREE MONTHS. Councilmember Duggan seconded the motion. DISCUSSION Mayor Krebsbach commented that she felt White Pine Holdings would not be ready by the September 6, 2011 council meeting but is certainly willing to give them the week. However, she does not want to extend the reapplication out three months. What she likes about the motion to deny is that it cleans the slate. Basically, everyone is working with the same set of bullet points and everyone is clear on what those bullet points are. Paster Enterprises is the owner of the property, the city has the PUD, the city has what was in the PUD and these are the points where there is a discrepancy. She continued the city does have the White Pine Holdings memo but the discrepancy still has not been resolved and again the consent to transfer would be pivotal. Mendota Heights City Council August 30, 2011 Page 5 Mayor Krebsbach continued by stating that the city is not interested in obstructing this. The city has always maintained a very deliberative process when approving a PUD, due diligence is done and they are very careful. She expressed appreciation for all that Paster Enterprises has done as this is a wonderful development and everyone is very positive about it. However, she stated the city does not back into anything; they have always done everything straight up and have worked cooperatively. Councilmember Povolny stated he is in agreement with the rest of the councilmembers and the mayor, but he would like to shorten up the 90 days to 45 days as 90 days puts them almost at the end of the year. City Attorney Diehm, to clarify between the extension granted by the applicant and what is being discussed here, stated that there is a state statute that requires the city to act on certain land use applications within a 60 -day period of time. The city has the right to unilaterally extend that timeframe to 120 days. If the city requires more than 120 days to act they can only do so if the developer or the applicant agrees voluntarily. The city cannot force that timeframe outside of 120 days. By submitting the written letter last week, the applicant has waived their right to demand that a decision be made by September 6, 2011. The letter states the applicant will grant the city an extension through November 15, 2011. That action is separate from any discussion on an extension or a reduction in the time to reapply. City Attorney Diehm continued under the current status, the city is not obligated to make any decision prior to November 15, 2011. On the other hand, what council is talking about now, by denying the application, there is a provision in the city code that relates to conditional use permits. The planned unit development section of the code states amendment to the planned unit development shall follow the procedures that are outlined in conditional use permits. So one reading of that code would mean that you could not submit another amendment for a six -month period of time. On the other hand, the PUD agreement is a contract between the city and the developer; therefore they probably have a right to enter into discussions with the city about amendments to that contract outside of the conditional use permit process. City Attorney Diehm states because there is some difference there in interpretation, counsel feels it would be useful for council to set those parameters. But in looking at the timeframe, what council is establishing tonight by extending a timeframe is when the applicant can come back with that initial application. She clarified this timeframe would not be when the city has to act but rather when the applicant can submit a new request. Mayor Krebsbach stated that she is fine if the applicant wants to reapply tomorrow. The review of that application would have to include the consent to transfer. Mayor Krebsbach stated, for discussion, the net effect if council moves to deny, removes the six -month timeframe, White Pine Holdings can reapply beginning tomorrow if they wanted, council will review that application first and foremost based on the consent to transfer. If White Pine Holdings wishes to modify the application they can, if they want to submit the same application they can do that also. She asked City Attorney Diehm to clarify her understanding of this process. City Attorney Diehm replied that she does follow the mayor's thinking and that yes, the discussion on the timing would be correct. However, she reiterated that the consent to transfer is just one of the many Mendota Heights City Council August 30, 2011 Page 6 - - findings that the city has included in this resolution. Therefore, if council is not going to send it back to the planning commission, there is a motion and a second to make a decision and adopt a resolution to deny. It is important for the record that the findings of fact in the resolution are gone through so it is clear that the denial of the application is based on all of the factors. Mayor Krebsbach commented that she is in agreement and that the nine bullet points have been in the memo in June and in the memo from staff in July of 2011. This information has been available all of that time. Councilmember Duggan made a suggestion for an additional motion in conjunction to the motion on the table, which was followed by multiple discussions. City Attorney Diehm clarified by stating, if she is understanding Councilmember Duggan correctly, he is suggesting that instead of setting a three month or a 45 -day window, that council establish the timeframe in which they can reapply to be contingent upon them submitting all of the information needed to evaluate the consent to transfer. Councilmember Duggan confirmed that this is what he is suggesting and he then asked if it would work from a legal standpoint. City Attorney Diehm replied that the preference would be that council establishes a time, but in the event that the applicant provides all of the information needed to evaluate the consent to transfer it could be shortened. That way the applicant knows what the outside date is as well. Certainly if they do not submit the information needed to consider the consent to transfer that would be one of many grounds for denial of the application. But perhaps we should not prohibit them from at least asking. City Attorney Diehm continued by reminding the council that right now they have a motion on the table that includes a three -month extension. There was a comment made by Councilmember Povolny that he wished to reduce that to 45 days. Councilmember Petschel commented that there might be a simpler solution and that is, as Councilmember Vitelli commented, giving them the three months with the full knowledge through the discussion of what council is expecting for a successful consent to transfer or positive feedback on a plan. Those are the things that need to occur within those three months. She is happy with the timeline with their knowledge of what they need to do in terms of their due diligence in order to move forward with this. If at the end of three months the same situation occurs then council would be right back to another denial, but if a good consent to transfer is received and all of the other issues have been met then everyone could move forward. City Attorney Diehm stated that she wanted to make sure Councilmember Petschel understands that the three months means that White Pine Holdings cannot take any actions until that 90 days has lapsed. They could certainly come forward with consent to transfer but they cannot ask the city to consider any amendment to the PUD agreement based on this residential component until December 1, 2011. They can submit an application on December 1, 2011, it would go to the planning commission in December or January, and it would come before the council afterward. Councilmember Petschel expressed her understanding of City Attorney Diehm's explanation and stated she is comfortable with it. Mendota Heights City Council August 30, 2011 Page 7 Mayor Krebsbach expressed her opinion that, that much time was not necessary. She would be more inclined to support this motion if there was a shorter timeframe. She then asked what the date would be if Councilmember Povolnys' suggestion of 45 days was included in the motion. City Attorney Diehm replied that the date would be October 14, 2011. Mayor Krebsbach then asked if that date would allow the application to make the October planning commission deadline. Assistant to the City Administrator Jake Sedlacek replied that planning applications are due the Monday before the first Tuesday of every month. So if the extension were 45 days, the first that this could be heard would be at the November planning commission meeting. He continued that to be included in the October planning commission meeting the extension would have to be 30 days. Mayor Krebsbach restated the discussion: White Pine Holdings would need 30 days before they could resubmit and the conditions for resubmittal and in order to begin to generate the evaluation would be: the consent to transfer in addition to all of the points noted that would still be existing in the staff review of the original PUD with the White Pine Holdings application. Those would be the issues council would take forward once they have the consent to transfer. City Attorney Diehm repeated what she heard by stating that along with the motion to deny, council would waive the six -month provision in the code to a lesser amount, which is yet to be determined, and separately council would encourage the applicant to continue to move forward with the consent to transfer because that is a separate action, not part of the amendment. Mayor Krebsbach then asked if 30 days would be enough time. City Attorney Diehm replied that from a legal perspective the time limitation is whatever the council decides as a policy they would like to impose. Mayor Krebsbach then asked if 90 days was too long. City Attorney Diehm answered that the code provides for a six -month waiting period; however, not only is this an action that is interpreted under code but it is a contract so it does seem to offer some flexibility from the six months. Mayor Krebsbach requested the original motion maker to change the time to a 30 -day timeline. Councilmember Vitelli replied that he does not wish to do that. In his opinion, this is one of the most mismanaged applications in his 10 years on the council. A message needs to be sent that the council does not accept this, and accommodating and reducing this to 30 days is like allowing a spoiled child to continue with their actions. He requested that a vote be taken on his original motion. Assistant to the City Administrator Jake Sedlacek stated that there is a resolution denying an Amendment to the Conditional Use Permit for Planned Unit Development at Lot 6, Block 1, Mendota Plaza Redevelopment. Charles Rothstein, on behalf of Mendota Mall Associates, applied for an amendment to the Conditional Use Permit for Planned Unit Development at Lot 6, Block 1, Mendota Plaza Redevelopment as proposed in Planning Case 2011 -14. The Mendota Heights Planning Commission held a public hearing on this matter on June 28, 2011. The Mendota Heights Planning Commission held over the public hearing on this matter to the July 26, 2011 and again to the August 23, 2011 meetings. The commission, at their August 23, 2011 meeting recommended that city council deny the Amendment to the Conditional Use Permit for Planned Unit Development at Lot 6, Block 1, Mendota Plaza Redevelopment. The resolution as resolved by the City of Mendota Heights City Council is that the Amendment to the Conditional Use Permit for Planned Unit Development as proposed in Planning Case 2011 -14 is hereby j denied with the following findings of fact: Mendota Heights City Council August 30, 2011 Page 8 1. Pursuant to Section 3.4 of the PUD agreement the consent of changes to the approved plans may be given or withheld at the city's sole discretion 2. The developer has failed to obtain prior written consent of the city to transfer the property to White Pine as required by Section 6.2 of the PUD agreement 3. Pedestrian circulation inadequately integrates the residential building into the mixed use PUD as directed by previous PUD approvals 4. Parking under the PUD agreement was determined based upon mixed use of the development as a whole and the proposed parking in the modified plan is inadequate 5. Building materials do not meet the specified requirements of the approved plans 6. The city council specifically approved balconies on the units and balconies are no longer shown on modified plans 7. Utility plans do not show how the project will connect to the city's sanitary sewer system, among other utility issues, and do not show the applicants or whoever designed the project or the sewer to avoid conflicts between the building and the city's utility 8. Signage for the project exceeds the zoning ordinance allowances for residential properties 9. The applicant characterizes the proposal as a healthcare business, which is inconsistent with the PUD agreement requirements that the property be used for residential purposes Mayor Krebsbach asked Councilmember Vitelli if he would consider removing any reference to timeline in his original motion and have it in a separate motion. Councilmember Vitelli replied that he would not. Ayes: 4 Nays: 1 ( Krebsbach) Mayor Krebsbach adjourned the meeting at 6:15 p.m. A ST: Sandie Thone City Clerk