The URL can be used to link to this page

2012-02-28 Planning Comm Agenda PacketW 1. �-,au to vruer 2. Roll Call CITY OF MENDOTA HEIGHTS DAKOTA COUNTY, MINNESOTA 3. Approval of the Agenda PLANNING COMMISSION Regular Agenda February 28, 2012 - 7:00 P.M. 4. Approval of the January 24, 2012 Planning Commission Minutes 5. Hearings a. Case No. 2012-05: Sheila and Ab Hilo, 2225 Apache Street, Variance to the front yard setback. Public Hearing 7:00 p.m. b. Case No. 2012-06: Scott Schifflett on behalf of St. Thomas Academy, 949 Mendota Heights Road, Variances to the number and total area for signs. Public Hearing 7:00 p.m. c. Case No. 2012-07: Michael and Michelle Bader, variance to street right of way width for Foxwood Lane. Public Hearing 7:00 p.m. 6. Verbal Review 7. Election of Chair and Vice Chair 8. Adj ourn Auxiliary aids for persons with disabilities are available upon request at least 120 hours in advance. if a notice of less than 120 hours is received, the City of Mendota Heights will make every attempt to provide the aids, however, this may not be possible on short notice. Please contact City Administration at 651-452-1850 with requests. Planning Commission Minutes January 24, 2012 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY, MINNESOTA PLANNING COMMISSION MINUTES January 24, 2012 The regular meeting of the Mendota Heights Planning Commission was held on Tuesday, January 24, 2012, in the Council Chambers at City Hall, 1101 Victoria Curve at 7:00 P.M. The following Commissioners were present: Chair Norton (arrived at 7:05 p.m.), Commissioners Hennes, Magnuson, Noonan, Roston, and Viksnins. Those absent and excused: Commissioner Field. Those present were Assistant to the City Administrator Jake Sedlacek, Public Works Director/City Engineer Mazzitello, and NAC Planner Stephen Grittman / Carie Fuhrman. Minutes were recorded by Heidi Guenther. Approval ofAgenda The agenda was approved as submitted. Approval of November 22, 2011, Minutes COMMISSIONER NOONAN MOVED, SECONDED BY COMMISSIONER ROSTON, TO APPROVE THE MINUTES OF NOVEMBER 22, 2011, AS PRESENTED. AYES: 5 NAYS: 0 Chair Norton arrived at 7:05 p.m. HearinZv PLANNING CASE #2012-04 Fourth Dimension Architectural Signage on behalf of Independent School District 197 Variance for Identification Signs Planner Stephen Grittman presented the request of Fourth Dimension Architectural Signage, on behalf of Independent School District #197 for approval of a variance from the City's wall sign regulations. The school district wishes to erect two wall signs upon the Henry Sibley High School (located at 1897 Delaware Avenue), the area of which exceeds Ordinance requirements. The applicants believe the proposed signage would better identify the high school to southbound travelers on Delaware Avenue. Mr. Grittman reviewed the proposed signs the applicants wish to affix to the school building. He noted that according to the Zoning Ordinance, one nameplate sign is allowed for non-residential uses located within residential zoning districts. Such sign may not exceed 12 square feet in size. The applicants are seeking approval of a variance to allow two wall signs, which in total measure 195 square feet in area. Mr. Grittman presented staff's analysis of the request and discussed the practical difficulties of the variance request given the fact the high school was located in a residential neighborhood. Staff indicated a 12 square foot identification sign would not be visible from Delaware Avenue, which according to the submitted site plan, lies approximately 300 feet to the east. He explained the variance request reflects the applicants desire to better identify the school's main entry which would not only benefit the school patrons, but would also assist in efficiently moving traffic around the school. Mr. Grittman commented the high school site was nearly 80 acres in size and the physical site needs of the high school do not relate well to the sign area allowances of the Zoning Ordinance. He explained that the applicants Planning Commission Minutes Janumy24, 2012 request for a variance appears to create a "practical difficulty" and meets the tests of the Zoning Ordinance for variance consideration. Staff recommended approval of the variance based on the finding that one wall sign not exceeding 12 square feet in size does not permit reasonable identification of the use to the traveling public. Commissioner Magnuson requested further information on past sign requests from the school district. Mr. Grittman explained the school district had requested a freestanding sign along Delaware Avenue identifying the entrance drive in the past. .However, a proposed .wall sign with. exposure to -southbound traffic would be less intrusive than a freestanding sign near the roadway. Commissioner Noonan commented the 195 square foot variance request was over and above the current square feet of signage affixed to the school. He stated the R-1 zoning standards did not property address institutional uses in residential areas. Mr. Grittman stated this was the case. Commissioner Hennes did not object to the variance request but questioned if the City had received similar requests in the past. Mr. Grittman stated this was the City's fust request for additional wall signage, but noted the City has reviewed several freestanding sign requests in the past. Commissioner Roston suggested the City propose a text amendment to the Zoning Ordinance to address these types of variance requests in the future. Mr. Grittman stated this would be one way to approach the situation, however, he did not anticipate a large number of requests. Commissioner Viksnins asked if there were any recommended conditions for approval from staff. W. Grittman indicated staff had no conditions for the variance approval. Assistant to the City Administrator Sedlacek indicated that public hearing notices were sent to all properties within 100 feet of the subject property. Chair Norton opened the public hearing. Mark Fortman, 4389 Oakmead Lane in White Bear Township, stated he was the Director of Operations for ISD #179. Mr. Fortman commented the proposed signage would greatly enhance the school while assisting traffic to locate the school. Dr. Robin Percival, 14052 Clintwood Way in Apple Valley, introduced herself to the Commission noting she was the principal at Henry Sibley High School. Commissioner Noonan questioned why the proposed signage differed from the existing signage. Mr. Fortman stated the school had different administration in place and the new sign would bring about a better visual presence for the high school. COMMISSIONER VIKSNINS MOVED, SECONDED BY COMMISSIONER MAGNUSON, TO CLOSE THE PUBLIC HEARING. AYES 6 NAYS 0 Commissioner Noonan commented the variance was the practical option for addressing this sign request but suggested staff review the Zoning Code to assure that numerous variance requests were not brought to the City for approval. Chair Norton estimated there were a dozen institutional uses in the City located within residential zoning districts that could bring about such a request. 2 Planning Commission Minutes January 24, 2012 COMMISSIONER VIKSNINS MOVED, SECONDED BY COMMISSIONER ROSTON, TO RECOMMEND APPROVAL OF THE VARIANCE AS REQUESTED BASED ON THE FINDINGS OF FACT DETAILED IN THE STAFF REPORT. AYES 6 NAYS 0 Chair Norton advised the City Council would consider this application at its February 8, 2012, meeting. PLANNING CASE #2012-01 City of Mendota Heights Zoning Amendment — Wetlands Permit Process Title 12, Chapter 2 City Code Planner Stephen Grittman presented the request of a zoning amendment to the wetlands permitting process. He explained the current process, which requires a full public hearing with final consideration by the City Council, noting this could take up to 45 days from application to Council approval. It has not been uncommon for Wetlands Permits to be requested in which applicants are replacing existing structures (such as decks or porches), but other than during construction, create no additional impacts on the Wetlands areas. Mr. Grittman reviewed the proposed amendment language in detail with the Commission. It was noted the proposed amendment would create a particular exemption to the processing of certain low -impact applications, allowing the City Administrator, or designee, to approve such pen -nits at a staff level, rather than require the full public review process. With the amendment, projects that are otherwise consistent with City requirements and likely to have little impact on the wetland area, or adjoining properties, may proceed on a quicker timeline. Mr. Grittman presented staff's analysis of the request and commented the draft ordinance language would allow staff to approve a permit as submitted, approve with conditions, or refer the item to the Planning Commission for the regular process. Staff recommended approval of the zoning code amendment. Commissioner Roston questioned how comments from concerned neighbors would be taken through the administrative permitting process. Mr. Grittman indicated an appeal process was in place for all administrative or Council decisions. He stated a concerned neighbor would have every opportunity to make comment with the City if concerned about the wetland permit. Chair Norton opened the public hearing. Seeing no one coming forward wishing to speak, Chair Norton asked for a motion to close the public hearing. COMMISSIONER HENNES MOVED, SECONDED BY COMMISSIONER VIKSNINS, TO CLOSE THE PUBLIC HEARING. AYES NAYS COMMISSIONER ROSTON MOVED, SECONDED BY COMMISSIONER HENNES, TO RECOMMEND APPROVAL OF THE WETLANDS PERMIT PROCESS ZONING ORDINANCE AMENDMENT TO TITLE 12, CHAPTER 2 ADDING AN ADMINISTRATIVE APPROVAL OPTION FOR SIMPLE WETLANDS PERMIT APPLICATIONS AS DETAILED IN THE STAFF REPORT. AYES NAYS Chair Norton advised the City Council would consider this application at its February 8, 2012, meeting. PLANNING CASE #2012-02 Planning Commission Minutes January 24, 2012 City of Mendota Heights Zoning Amendment — Critical Area Permit Process Title 12, Chapter 3 City Code Planner Stephen Grittman presented the request for a zoning ordinance amendment for the critical area minor project permitting process. He explained the Critical Area Ordinance regulates any construction or land alteration activity in the designated Mississippi River Critical Area Corridor. It was noted the City has required that all such permits follow the full review process of public hearings before the Planning Commission, and City Council approval, Mr. Grittman indicated the current ordinance does have a clause which permits an expedited review to the City Council for "minor" projects. However, concerns related to public notice for certain projects had resulted in a policy decision to require full review with the public hearing. At the request of the Planning Commission, staff spoke with neighboring communities regarding their Critical River regulations. For the vast majority of other cities, most projects were permitted administratively. Common exceptions included new buildings, major re -grading projects and fences. Other minor projects were routinely processed administratively. Mr. Grittman noted that the City had a number of properties within the Critical Area that have neither steep slopes or river exposure, which makes the full permit review process onerous, particularly for the minimal impact projects. Mr. Grittman presented staffs analysis of the request and suggested the expedited review process be re -started, but with a few parameters added to the ordinance to ensure that no projects with potential impacts for the Critical Area escape public notice and comment. The proposed text amendment was discussed in detail. Staff recommended approval of the zoning ordinance amendment. Commissioner Viksnins questioned if any language was being removed from the current code. Mr. Grittman stated the proposed amendment would be adding language to the current ordinance under Title 12, Chapter 3, Section D. Commissioner Magnuson asked if the Commission was comfortable with language in the last line of Section D. She felt "inappropriate requirements" could be misinterpreted. Mr. Grittman indicated the intent of this language would be to limit vague requests from coming before the Council until applications were full and complete. Commissioner Roston questioned if the public hearing notice would allow the Commission to discuss both the current and amended language for this section of City Code. Mr. Sedlacek explained the hearing notice was inclusive and would allow the Commission to review all language pertaining to Critical Area permitting. Commissioner Noonan suggested the last line be removed from Section D to eliminate any confusion. Mr. Grittman stated the City was trying to avoid receiving incomplete applications from the public. Commissioner Roston requested the word "inappropriate" be replaced with "unduly burdensome." Chair Norton opened the public hearing. Seeing no one coming forward wishing to speak, Chair Norton asked for a motion to close the public hearing. COMMISSIONER HENNES MOVED, SECONDED BY COMMISSIONER NOONAN, TO CLOSE THE PUBLIC HEARING. AYES 6 NAYS 0 COMMISSIONER NOONAN MOVED, SECONDED BY COMMISSIONER HENNES, TO RECOMMEND APPROVAL OF THE CRITICAL AREA PERMIT PROCESS ZONING ORDINANCE AMENDMENT TO TITLE 12, CHAPTER 3, SECTION D AS DETAILED IN THE STAFF REPORT, STRIKING THE WORD "INAPPROPRIATE" AND REPLACING IT WITH "UNDULY BURDENSOME." AYES 6 M Planning Commission Minutes Januayy24, 2012 NAYS Chair Norton advised the City Council would consider this application at its February 8, 2012, meeting. PLANNING CASE #2012-03 City of Mendota Heights Zoning Amendment — Accessory Structures in Residential Zones Title 12, Chapter 1 City Code Planner Stephen Grittman presented the request for a zoning amendment intended to allow accessory structures for institutional uses in residential zoning districts. The proposed amendment would assist the City in handling these requests in the future. He explained the current process required a conditional use permit, coupled with consideration of variances related to the number, size and total square footage of the proposed accessory buildings. Mr. Grittman noted that the City's zoning ordinance allows institutional uses in residential districts. However, the accessory building regulations for residential districts are structured to address accessory buildings that are typical of residential uses rather than institutional activities. It was suggested that an amendment to the Zoning Ordinance be considered that would establish specific accessory use regulations for institutional land uses. The Planning Commission recommended a proportional standard, allowing more accessory building space as the size of property increases. Mr. Grittman presented staff's analysis of the request and discussed the language amendments in detail. He noted with this change, the allowable accessory building size will be clarified for both residential and non-residential properties. Non-residential properties would be allowed an accessory building up to 1,000 square feet, with more accessory space allowed through a conditional use permit, based on the size of the property. Staff recommended adoption of the proposed zoning ordinance amendment. Chair Norton requested a change to Item 1 noting it should read, four (4) acres or fewer. Chair Norton opened the public hearing. Seeing no one coming forward wishing to speak, Chair Norton asked for a motion to close the public hearing. COMMISSIONER HENNES MOVED, SECONDED BY COMMISSIONER VIKSNINS, TO CLOSE THE PUBLIC HEARING. AYES NAYS COMMISSIONER ROSTON MOVED, SECONDED BY COMMISSIONER MAGNUSON, TO RECOMMEND APPROVAL OF THE INSTITUTIONAL ACCESSORY BUILDING REGULATIONS IN RESIDENTIAL DISTRICTS ZONING ORDINANCE AMENDMENT TO TITLE 12, CHAPTER 1 AS DETAILED IN THE STAFF REPORT, CHANGING LESS TO FEWER IN ITEM 1. AYES 6 NAYS 0 Chair Norton advised the City Council would consider this application at its February 8, 2012, meeting. Verbal Review TiTr IZ—Al L- have tha fnllnunrtj verlhnl rP.vleW- PLANNING CASE #11-32 City of Mendota Heights Ordinance 440 Amendment 0 Approved by the City Council as recommended by the Planning Commission. Planning Commission Minutes January 24, 2012 Mr. Sedlacek advised that commercial property amendments have been discussed in the past by the Planning Commission and the City Council would be discussing this matter at the February 8h Council meeting at 7:00 p.m. COMMISSIONER MAGNUSON MOVED, SECONDED BY COMMISSIONER VIKSNINS, TO ADJOURN THE MEETING AT 7:45 P.M. .AYES . 6. NAYS 0 Respectfully submitted, Heidi Guenther, Recording Secretary 2 Planning Application 2012-05, 02-28-2012, Page 1 NORTHWFE-S-T IA E - CONSULT -ANTS, Il Q - 4800 Olson Memorial Highway, Suite 202, Golden Valley, MN 55422 Telephone: 763.231.2555 Facsimile: 763.231.2561 planners@nacplanning.com MEMORANDUM TO: Mendota Heights Planning Commission FROM: Stephen W. Grittman DATE: February 23, 2012 MEETING DATE: February 28, 2012 SUBJECT: Variance for Front Yard Setback CASE NO: Case No. 2012 - 05; NAC Case 254.04 — 12.04 APPLICANT(S): Aboud and Sheila Hilo LOCATION: 2225 Apache Street ZONING: R-1, Single Family Residential GUIDE PLAN: Low Density Residential Background and Description of Request: The applicants are seeking a variance from the required front yard setback of 30 feet from the right of way line. The applicants are proposing to construct an addition to their home that would extend into the setback by approximately four feet, leaving a front setback of 26 feet. The applicants' letter of intent states that the purpose of the addition is to provide dining table space near the home's existing kitchen which is in the front of the structure. The proposed addition would be about 10 feet wide by 12 feet in depth overall. Analysis: When considering requests for variance, the City is required to find that: Planning Application 2012-05, 02-28-2012, Page 2 (1) The applicant is proposing to use the property in a reasonable manner; and (2) The applicant's proposal faces practical difficulties in using the property in this manner due to circumstances that: a. Are unique to the property, b. Are not caused by the applicant, c. Are consistent with the purpose and intent of the City's plans and ordinances, d. Are not out of character with the locality, or neighborhood, in which the property is located. In consideration of the definition of "reasonable use of property, it is common for contemporary homes to have dining table space in proximity to the kitchen. The homes in the neighborhood are rambler -style structures, built generally in the 1950s, on lot of about 11,000 square feet, below the City's current R-1 zoning standards. As such, they tend to have limitations on the lots that make expansion difficult. In this case, the expansion would result in a nominal encroachment into the front yard, however, it appears that the addition of dining space is not practical in other locations due to the location of the kitchen in the home, and the limited space between the existing garage and front window arrangement. The applicants note that neighbors have similar front additions, although it appears that to the north at least, the existing home still meets the setback requirement. Action Requested: Following a public hearing, the Planning Commission may consider one of the following motions: Recommendation of variance approval as submitted, based on findings attached to this report. 2. Recommendation of denial of the variance, based on findings attached to this report. 3. Table action on the variance, pending additional information from staff and/or the applicant. Staff Recommendation: Staff recommends approval of the variance, as a reasonable accommodation to permit reinvestment in the existing housing stock, and to permit the home to be improved nearer to contemporary single family housing in the community. As noted above, it appears that a dining room addition to this home is not feasible given the layout and architecture of the home. The proposed addition would not appear to be excessive from Planning Application 2012-05, 02-28-2012, Page 3 a square footage standpoint for the use. Without the variance, reasonable expansion for this type of improvement does not seem feasible. Supplementary Materials: 1. Application materials dated February 2, 2012 Planning Application 2012-05, 02-28-2012, Page 4 Draft Findings of Fact for Approval Variance from Front Yard Setback Requirement 2225 Apache Street 1. The addition is for a dining room that would be necessary to accommodate dining near the home's kitchen in the front of the structure. 2. The addition for a dining room cannot be accomplished without the requested four foot encroachment into the front yard setback, a total of 40 square feet. 3. The request is for dining space that would be common for most single family homes in the community. 4. The proposed additional is reasonably the least to accomplish the objective for a dining room space. 5. The proposed addition is similar in nature to others in the area, and is architecturally compatible with both the existing home and neighboring structures. 6. The parcel is just over 11,000 square feet in area, below the City's regular single family lot size standard, and is otherwise limited in space for expansion. Planning Application 2012-05, 02-28-2012, Page 5 Draft Findings of Fact for Denial Variance from Front Yard Setback Requirement 2225 Apache Street 1. The proposed addition would encroach closer to the street than other homes in the area, and more than those on either side of it. 2. The applicants have adequate space in the rear yard of the property to add other space which could accommodate further remodeling without a variance. 3. The addition does not constitute reasonable use of the property, given the neighborhood and other similar situations. Planning Application 2012-05, 02-28-2012, Page 6 Mendota Hel i APPLICATION FOR CONSIDERATION OF PLANNING REQUEST Case No. Date of Application Fee Paid bo (,-a -6 Applicant Name: /,// 'Io 4 PH: (Last) (First) (IVl) r E-MailAddress: SIAL: laky; I ca,ZCE'. t • Cc.� Address: �2-� S �ct1�Si. I �C�F��ti r� REir -t,s 1A40 (Number & Street) (City) (State) (Zip) Owner Name. �A � L -',- (Last) Address.- Z-22`-� 6 A c. t -t. C- - (Number & Street) Street Location of Property in Question. A1z o ,LA—, (First) M (City) (State) iI �rU c+�� IZC (Zip) gall, Description & PIN of Property: (Complete Legal from Title or Deed must be provided) G ECJ LLytLV '11 �1 �.e"ii}��FC �ZS �G llo'J -6 7-6)16) Type of Request: Rezoning Conditional Use Permit Conditional User Permit for P.U.D. Preliminary/Final Plat Approval Comprehensive Plan Amendment Applicable City Ordinance Number %'L Present Zoning of Property` Present Use Proposed Zoning of Property P- I Proposed Use _Variance Subdivision Approval Wetlands Permit Critical Area Permit Other (attach explanation) Section &F s I hereby declare that all statements made in this request and on the additional material are true. I further authorize City Officials and agents to inplapt the above property during daylight hours. Date Received (Signature of Applicant) nature 11+D1 victoria Curve. Mendota Heights, 1Q/I N 55118. (651) 452-1850. FAX (651) 452-8940 www.me¢ndota-height,s.comrn Planning Application 2012-05, 02-28-2012, Page 7 2225 Apache Street r Mendota Heights, MN 55120 City Of Mendota Heights Thursday, February 2, 2012 To Whom It May Concern: We would like to add a dining room addition to the existing kitchen in our home at 2225 Apache Street. The existing dining area is very small. We would like to build a ten foot by twelve foot addition so we have room for a dining room table near the kitchen. The kitchen is located on the front side of the house. So, the only practical way to add a dining room off the existing kitchen is to build out from the front of the house. Any other expansion for a dining room would require considerable renovation to the rest of the house, which would not be practical and financially prohibitive. The standard allowable set back from the front of the house to the curb is forty feet. That would only allow us to build out nine feet, at the most. This does not quite give us the roo that we g need for seating. We are asking for a variance to go an additional t4Q feet closer to the curb than the current set back allows. The new addition would be no higher than the other side of the house which has a gable end roof design similar to what the new room would have. Several other property owners in our area have done additions to the front of their homes. So, we feel it would fit in quite nicely with the rest of the neighborhood. We feel this addition would be an asset to our home. Thank you for considering our request. Respectfully, Ab and Sheila Hilo Homeowners 1;7 --ftal I[ III ly 7AppIKaUUTT-ZUl Z-Ub, U2-2B--2DTZ, Page 8 nCity of 2225 Apache Street N Mendota a A 0 30 !, aA MA -&J-Heights February 1, 2012 SCALE IN FEET 2213 0', 2219" Cb 129 2236 li plakh mt if 4v - - 41 Foy. [ � 1 IF n j S� �� ; _��_� V (66` `[ - - --.L ' � � ` r - � ► � !� I \!r.�r�'`` �' � AY L_ � ? � �� +.� � '-).�-••��F�,'..-....-�,yw.f-�t.,-.-.. I "-- - t 1�9 1 jI_: -_..'4 - 1 ray! I _ u: --S --�,-.- 1(, '. 1 h � � J _ L-1 6=4,1 I 2 � � � �� Planning Application 2012-05, 02-28-2012, Page 11 CITY OF MENDOTA HEIGHTS NOTICE OF HEARING A PUBLIC HEARING ON A REQUEST FOR A VARIANCE TO CIT`( STANDARDS FOR FRONT YARD SETBACK TO WHOM /T MAY CONCERN NOTICE is hereby given that the Planning Commission of Mendota Heights will meet at 7:00 P.M., or as soon as possible thereafter, on Tuesday, February 28, 2012 in the City Hall Council Chambers, 1101 Victoria Curve, Mendota Heights, Minnesota, to consider an application from Aboud and Sheila Hilo for a variance to the front yard setback at 2225 Apache Street. The applicant is seeking a four -foot variance to the front yard setback to accommodate an addition to their home. This notice is pursuant to Title 12 (Zoning), Chapter 1 of the Mendota Heights City Code. Such persons as desire to be heard with reference to this request will be heard at this meeting. - Sandie Thone City Clerk Plannin A .plication 2012-05, 02-28-2012, Page 12 D� ®f CO NIN Disclaimer.' Map and parcel data are believed to be accurate, but accuracy is not Map Scale guaranteed. This is not a legal document and should not be substituted for a title search, I inch m 935 feet appraisal, survey, or for zoning verification. Planning Application 2012-06, 02-28-2012, Page 1 4800 Olson Memorial Highway, Suite 202, Golden Valley, MIN 55422 Telephone: 763.231.2555 Facsimile: 763.231.2561 planners@nacplanning.com MEMORANDUM TO: Mendota Heights Planning Commission FROM: Stephen Grittman DATE: February 22, 2012 MEETING DATE: February 28, 2012 SUBJECT: Wall Sign Variance CASE NO: Planning Case 2012-06; NAC Case No. 254.04 — 12.02 APPLICANT(S): Scott Shifflett/ St. Thomas Academy LOCATION: 949 Mendota Heights Rd ZONING: R-1, Single Family GUIDE PLAN: Low Density Residential Background St. Thomas Academy has is planning for the construction of a new activities facility at 949 Mendota Heights Road. With the construction of the new building, the school will be removing the temporary air -supported structure on the west side of the existing buildings. As a part of the project, the school is also requesting approval of a variance for proposed wall signage for the activities building. The south face of the existing gymnasium displays existing wall signage visible from Mendota Heights Road. Since this south face of the building will be the location for the addition, the existing signage will need to be removed and replaced. As a part of the application, St. Thomas was directed to also apply for a Conditional Use Permit to ensure that we would not discover issues related to the expansion that would then hold up processing of the permits. However, no such issues were found, and since schools are permitted uses in the R-1 District, the CUP is not necessary. The City may dispose of the that portion of the application without action. Planning Application 2012-06, 02-28-2012, Page 2 Sign Variance Specifically, the applicants wish to affix the following signs on the south side of the activities building addition: • Saint Thomas Academy sign that will be 42' in length and made up of 27" and 32" letters. This 115 square foot sign is that which is currently displayed on the south wall of the gymnasium. • School logo sign measuring 11' by 12' and 132 square feet in area. On the east side of the school building: • Saint Thomas Academy Student Activities Center sign that will be 42' to 47' in length with the same 27" and 32" lettering. This results in an area of 127 square feet. Analysis Sign Variance Pertaining to this request the city code states: 12-1D-15 J. Signs In R Districts: Within the R districts, the following signs are permitted: 3. One nameplate sign for each permitted use or use by conditional use permit other than residential, and such sign shall not exceed twelve (12) square feet in area per surface. The applicants have requested a variance to exceed the number and area requirements of wall signs allowed for non residential uses located in residential zoning districts. In considering variance applications, the City is required to find that: (1) The applicant is proposing to use the property in a reasonable manner; and (2) The applicant's proposal faces practical difficulties in using the property in this manner due to circumstances that: a. Are unique to the property, b. Are not caused by the applicant, c. Are consistent with the purpose and intent of the City's plans and ordinances, d. Are not out of character with the locality, or neighborhood, in which the property is located. 2 Planning Application 2012-06, 02-28-2012, Page 3 The applicant has proposed several reasons for approval of this variance, including: • The request for variance requests reflects the applicant's desire to better identify the school's buildings. This is considered a reasonable objective which would not only benefit school patrons but likely assist in the efficient movement of traffic around the school. The purpose of identification signage is to convey information. If signs are of such a size which do not reasonably allow information to be conveyed, a practical difficulty results. A 12 square foot identification sign affixed to the school's east and south facade likely would not be visible from adjacent Mendota Heights Road which, according to the submitted site plan, lies approximately 400 feet to the South. It is believed that the 12 square foot maximum sign area requirement imposed in the district better reflects the signage needs of residential uses than institutional uses (such as the high school). In this regard, it is believed the variance request is unique to the subject property. • No illumination has be requested therefore is not being approved by this variance With the recent Sibley High School sign variance application, the City found that the size of the property, size of the building, and extensive setbacks contributed to the "practical difficulties" faced by a non-residential use in the R-1 district in identifying their property. In that case, the applicants were proposing signage as follows: "Henry Sibley Warriors" sign measuring 143 square feet in size. School logo sign measuring 52 square feet in size. The sign is to be located on the diagonal portion of the north facade and face northeast. Approximately 400 ft from closest right-of-way (Delaware) The proposed St. Thomas Academy signs would be approximately 400 feet from Lake Drive to the east, and 500 feet from Mendota Heights Road to the south, not significantly different that the dimensions on the Henry Sibley property. The proposed St. Thomas wall signs are comparable in size to those approved at Henry Sibley (127 s.f. at STA; 143 s.f. at Sibley). However, the St. Thomas Academy logo is quite a bit larger, and would be more prominently located than the Sibley logo sign. The St. Thomas logo is proposed to be 11 feet wide and 12 feet high, a total measured area of 132 square feet. The City approved the Sibley logo sign at 52 square feet, just under 9 feet high and 6 feet in width. Combined with the relocated nameplate sign letters, the - -south-facing wall would total 259 square feet of sign area. - While there is no doubt that the larger sign is more visible, variances are typically considered to accommodate the least amount necessary to make a reasonable use of the property. In this regard, the ordinance suggests that the Planning Commission is to consider: 3 Planning Application 2012-06, 02-28-2012, Page 4 " ... granting of such variance from the strict application of the provisions of this chapter so as to relieve such difficulties or hardships to the degree considered reasonable without impairing the intent and purpose of this chapter and the comprehensive plan." In this regard, reasonableness may include the kinds and extent of zoning -decisions made for other land uses in similar circumstances. As such, a reduced logo size would be more consistent with the City's decision in the Henry Sibley case. Other Improvements Circulation. The improvements and redesign of the parking area will provide for better pedestrian and vehicle circulation within the site area. The proposed design is favorable due to the importance of providing accommodations for pedestrian circulation near the drop off and entrance area of the facility. Off -Street Parking Requirements, Curb Cut, and Entry. The proposed plans show a new curb cut access and drive from the south (Mendota Heights Road), this shows to be a reasonable place for a new access way as it aligns with the adjacent curb cut directly across Mendota Heights Road. The access drive, parking lot, and parking island layout shows to be a sufficient layout for healthy and safe traffic flow. The new curb cut and access drive is subject to city engineer review and approval. The additional parking spaces are allowable and noted to be a positive addition to the facility. The city does not require additional parking based on square footage based on the fact that this facility is meant for school activity purposes only and is not intended to affect enrollment or class room numbers. If the facility were to be intended for a public athletics and recreational facility then parking spaces based on the buildings square footage would be implemented. Landscaping and Screening. All landscaping and screening from adjacent parcels is compliant as per the previous CUP. The proposed building and parking lot reconfiguration does not require any further landscaping or screening beyond what has already been implemented for the previous CUP. Lighting. New proposed lighting shows to match the existing approved lighting and should be hooded to comply with city code section 12-11-15 of the zoning performance standards. Grading, Drainage and Erosion Control. The applicant has proposed grading for the new parking lots and access drive. The plans show to have proposed bituminous paving and a infiltration basin for drainage and runoff control. Grading, drainage, and erosion control shall be subject to review and approval from the city engineer. Building. The building plans show an architectural precast and metal paneling for the exterior finish. These are shown to be consistent with approved architectural standards of the existing buildings on campus and give clean and aesthetically pleasing finish to the campus buildings. El Planning Application 2012-06, 02-28-2012, Page 5 Action Requested: Sign Variance Following the public hearing, the Planning Commission may make one of the following recommendations: 1. Approval of the variance, based on a finding that one wall sign not exceeding 12 square feet in size does not permit reasonable identification of the use to the traveling public, and the findings attached to this report. As noted in this report, staff's recommendation is that the logo sign should be reduced to a size comparable to that of the Sibley logo sign recently approved — something less than 60 square feet in area. 2. Denial of the variance based on a finding that the applicant can make reasonable use of the property and comply with the regulations. Staff Recommendation: Sign Variance Planning staff is supportive of the variance, with the modification that the logo sign is resized to less than 60 square feet, comparable to that granted to Sibley High School. In past discussions, there has been consideration that the residential sign requirements do not apply well to non-residential uses that are permitted in the zoning district. The City has not chosen to amend those regulations, but for this use, a sign area requirement of 12 square feet appears to be so restrictive as to eliminate any value in having a sign. In some cases, signs that are too small are unreadable and can have a detrimental effect on traffic safety. As such, the application of one wall sign not more than 12 square feet in size upon the subject property could be seen as restricting reasonable use by interfering with the ability to provide adequate identification of the school. Moreover, the school has sought approval of wall signs with south and east exposure in this direction would be less intrusive than other locations on the property. Supplementary Materials: 1. Application materials dated February 6, 2012 5 Planning Application 2012-06, 02-28-2012, Page 6 Draft Findings of Fact for Approval St. Thomas Academy Wall Sign Variance 949 Mendota Heights Road 1. The property in question is significantly larger than standard residential property, restricting the ability to read sign information from the street. 2. The main entrance to the building along Lake Drive has no adequate sign identification, creating potential for traffic confusion. 3. The additional building setback from the street in this area does not provide an opportunity for readable signs at the smaller residential size allowed in the d istrict. 4. The combination of setback, property size, and sign regulations create practical difficulties in making reasonable use of the property as it relates to identification and traffic control. 5. The additional sign area proposed, as non -illuminated wall signage, is a reasonable use of the property, and will have no negative impacts on surrounding property. X Planning Application 2012-06, 02-28-2012, Page 7 Mendota Heights APPLICATION FOR CONSIDERATION OF PLANNING REQUEST Applicant Name: Shifflett Scott Case No. z - Date of Application 2 - - Fee Paid A PH: 952-656-4471 (Last) (First) (M) E -Mail Address: scott. shifflett@opus-group. com Aririracc- 10350 Bren Road West Minnetonka MN 55343 (Number & Street) Owner Name: Saint Thomas Academy (Last) (First) (M) Address: 949 Mendota Heights Rd Mendota Heights MN 55120 (Number & Street) (City) (State) (Zip) Street Location of Property in Question: 949 Mendota Heights Road Legal Description & PIN of Property: (Complete Legal from Title or Deed must be provided) Section 35 TWN 28 Range 23 NE 1/4 of SW 1/4 EX N 198 FT of E 636 F PIN: 270350051010 (City) (State) (Zip) Type of Request: Rezoning x Variance _Conditional Use Permit Subdivision Approval Conditional User Permit for P.U.D. Wetlands Permit Preliminary/Final Plat Approval Critical Area Permit Comprehensive Plan Amendment Other (attach explanation) Applicable City Ordinance Number Section Present Zoning of Property R_1 Present Use Institutional Proposed Zoning of Property R-1 Proposed Use Institutional I hereby declare that all statements made in this request and on the additional material are true. I further authorize City Officials and agents to inspect the above property during daylight hours. (Signatup o p ica .t) Date Received 2-6-12 1101 Victoria Curve. Mendota Heights, MN 5511E8 . (651) 452-1850. FAX (651) 452-8940 /� �� Planning Application 2012-06, 02-28-2012, Page 8 OPUS DESIGN BUILD, L.L.C. 10350 Bren Road West Minnetonka, MN 55343 MEMORANDUM TO: Mendota Heights Planning Department FROM: Scott Shifflett DATE: February 1, 2012 RE: Letter of Intent Concerning Proposed Activity Center Saint Thomas Academy The proposed activity center is the culmination of a multiyear planning and fund raising effort that will enhance the experience of students for many years to come. The proposed building will include new social studies, art, band, and choir classrooms. In addition two new gymnasiums, locker rooms, weight room, wrestling room, meeting rooms and athletic storage will be provided. The size of the building is approximately 96,000 square feet. The location of the building is situated within the Saint Thomas Academy campus just to the south of the existing gymnasium and pool buildings. The architectural exterior consists of architectural precast, architectural metal paneling, punched window openings and curtain wall. The project documents indicate the proposed building will not encroach on any known easements as the footprint is located approximately 337 feet from Lake Drive and 412 feet from Mendota Heights Rd. There are no structures within 350 feet of the proposed building that are not owned by Saint Thomas Academy. The proposed building is more than 100 feet from the normal water level of the pond located to the south. Acknowledging that the city zoning ordinance for signage is 12 square feet, we are asking the Planning Commission to consider granting a variance based on the uses of this facility as described above. Due to the large setbacks it would not be possible to design signage legible from the street with the allowable space. In addition the allowable space would not allow the building to match the existing campus. The proposed letters will be of the same size and character as the existing signage on the south elevation of the gymnasium. The existing sign uses a combination of 32"and 27" letters. As shown on the building elevations the proposed Saint Thomas Academy logo on the south elevation is 11 feet wide by 12 feet tall. The Saint Thomas Academy logo is intended to add character to the roof screening and show school pride. The signage below the logo consists of 32" and 27" letters with an overall length of 42 feet, replacing the existing gymnasium signage. The east elevation's signage consists of 32" and 27" letters with signage lengths of 42 and 47 feet respectively. The project team studied various signage dimensions. By matching the existing Saint Thomas Academy signage there is a balance between visibility and conformance with the existing campus signage program. Planning Application 2012-06, 02-28-2012, Page 9 Page 2 The site plans call for the addition of a new access road to the facility off of Mendota Heights Rd. The curb cut is immediately across from the entry to the hockey facility. The realignment of the parking as shown will add approximately 43 parking stalls. The landscaping shown around the proposed building will be in accordance with the Saint Thomas Academy campus standards. We appreciate the consideration and welcome the opportunity to answer any questions concerning this exciting project. Sincerely, Scott Shifflett Project Manager YAM' 9W7 LT 04 flo H lf; i 101 Jill 0 9, 44 LT 04 v 1@•!- ` ' Y yy�i ' .'� '� a... �-arc�•. ., „'`. �{ .- "- y .' - .. if'.'.'i► A 3fvalAi:; � :: � . r� . 'i tit � � k -- ��''�'• M�,F i � :1d9��` -, r ' r ti n: tY _ 9 .9 J. S . �! 4i �d � � I � r; ■; 1 r ,,.Y ! r �y ..,V A t'a _ is w� r• t � _ ,�, I f•I j;- 1 ow }� (:J ' aI� a S , % "v J �ry1 •� I i r ! A _ < G -i. 11 rill, iii 11 i d .. al -25 EF 7,7 rye" �' �i �F pli H4 A'Jp + f 'I.l�f .YIL4N�RYM' __ •ry k - '�"'�+r4vks ��[a 3i S� `� ' _ ,. ..Y r"61 f� kL?i• i d I' it F 17 D {! sy, (Planning Application 2012-06, 02-28-2012, Page 1$ CITY OF MENDOTA HEIGHTS NOTICE OF HEARING A PUBLIC HEARING ON A REQUEST FOR A CONDITIONAL USE PERMIT AND A VARIANCE TO CITY STANDARDS FOR SIGN AREA TO WHOM IT MAY CONCERN: NOTICE is hereby given that the Planning Commission of Mendota Heights will meet at 7:00 P.M., or as soon as possible thereafter, on Tuesday, February 28, 2012 in the City Hall Council Chambers, 1101 Victoria Curve, Mendota Heights, Minnesota, to consider an application from Scott Shiffleft on behalf of St. Thomas Academy for a conditional use permit for an expansion of the school and variance to the area standards at 949 Mendota Heights Road. The applicant is seeking a conditional use permit to construct an activity center as an addition to the existing school and variances to standards to sign area for wall signs. This notice is pursuant to Title 12 (Zoning), Chapter 1 of the Mendota Heights City Code. Such persons as desire to be heard with reference to this request will be heard at this meeting. Sandie Thone City Clerk i Planning Application 2012-07, 02-28.2012, Page 1 IW NORTHW;EST ASSOCIATEt> CONSULTANTS, INC. 4800 Olson Memorial Highway, Suite 202, Golden Valley, MN 55422 Telephone: 768.231.2555 Facsimile: 763.231.2561 plan ners@nacplanning.corn MEMORANDUM TO: Mendota Heights Planning Commission FROM: Stephen W. Grittman DATE: February 23, 2012 MEETING DATE: February 28, 2012 SUBJECT: Variance to Street Right of Way Width CASE NO: Case No. 2012-07; NAC Case 254.04 — 12.03 APPLICANT(S): Mike and Michelle Bader LOCATION: 1673 Delaware Avenue and Lot 3, Foxwood Addition ZONING: R -1A, Single Family Residential GUIDE PLAN: Low Density Residential Background and Description of Request: The applicant is seeking approval of a variance to allow an existing platted street to be used as access to a future subdivision, when the existing street is less than the required 60 feet in right of way width. The existing Foxwood Lane extends from Wentworth Ave south into the Foxwood subdivision, serving three single family parcels, two of which are currently developed with houses, and one of which (the parcel owned by the applicant) is undeveloped. Foxwood was developed with the expectation that it would terminate in the existing cul- de-sac, serving only the three lots. However, the applicant also owns the parcel to the south of the Foxwood plat, extending to Delaware Avenue on the east. In seeking to subdivide that parcel, the applicant is hoping to extend Foxwood Lane to the south to serve between one an four additional parcels, depending on the eventual subdivision plan. Because Foxwood does not meet the City's requirements for right of way width, a variance is necessary to consider the proposed extension. Planning Application 2012-07, 02-28-2012, Page 2 Analvsis: When considering a variance, the City is required to find that: (1) The applicant is proposing to use the property in a reasonable manner; and (2) The applicant's proposal faces practical difficulties in using the property in this manner due to circumstances that: a. Are unique to the property, b. Are not caused by the applicant, c. Are consistent with the purpose and intent of the City's plans and ordinances, d. Are not out of character with the locality, or neighborhood, in which the property is located. The applicant's materials suggest that these conditions are met due to the following factors: • Proposed lot sizes in the eventual plat will meet or exceed the zoning requirements, and will be larger than many lots recently subdivided in the same area and zoning district. • Extension of Foxwood Lane from its current terminus to gain access from Delaware, is technically feasible but, while meeting the code, would be detrimental to land, tree cover, and be less acceptable to the neighborhood. • The difficulties in meeting the required street width relate to topography changes and tree loss by constructing an outlet to Delaware, and the inability to expand the existing right of way width, since it is flanked by other property owners. • The extended portion of Foxwood in the newly subdivided area would meet all City street requirements. • The applicants would upgrade the existing portion of Foxwood to City street standards, even though the right of way cannot be widened. • The new lots served by the extended Foxwood will match the character of the area. The applicant is seeking this variance prior to design of the plat for the new subdivision. The applicant has opined that Dakota County will likely grant approval to construct a new street and intersection on Delaware Avenue, along the south boundary line of 1673 Delaware. As such, development of the area is possible from Delaware Ave., although the grade and tree loss would be much more extensive with that design. The sketch plan submitted as a part of the application shows that as many as four new buildable lots would be proposed with that design. 0a Planning Application 2012-07, 02-28-2012, Page 3 If the variance is not approved, it is expected that the applicant will seek the Delaware Avenue access proposal in a plat request later this year. If the variance is approved, the applicant has indicated his preference to submit a plat that extends the Foxwood Lane cul-de-sac to the south boundary of his property. This sketch plan (labeled "Option B" in the materials) also shows four new building sites, although the total street construction would be less than a connection to Delaware would require. The proposed cul-de-sac in the applicant's preferred option is approximately 900 feet long from Wentworth. For reference (although this is data is relevant to the future platting, not the current street width variance), the City's Subdivision Ordinance states that cul-de-sac streets shall not "normally" be longer than 500 feet. As such, the language is directive, but not mandatory. The City has approved other cul-de-sacs greater than 500 feet in length, and this design would be at the discretion of the City, but would not require a formal variance. Action Requested: Following a public hearing, the Planning Commission may consider one of the following motions: 1. Recommend approval of the street right of way width variance from 60 feet to 50 feet for the existing portion of Foxwood Lane, with the intent of allowing a plat which would rely on the existing Foxwood for access to newly subdivided parcels. This recommendation should be based on the attached draft findings of fact, and conditioned on the following requirements: a. All portions of Foxwood, when extended to serve any additional land, shall be reconstructed at the applicant's expense to City standards, including street, curb and gutter, and all public utilities. b. The proposed extension should serve no more than 4 new buildable lots on the applicant's property. c. The applicant, upon proposing a plat, shall provide the City with a listing of all easements necessary to extend Foxwood, to construct a standard city street and to install all necessary public improvements. d. Any plat subsequently proposed utilizing the existing Foxwood Lane shall extend the public street and utilities to the boundary of the applicant's property to facilitate future extension by neighboring property owners. 2. Recommend denial of the variance, based on the attached draft findings of fact. 3. Table action on the variance request, pending additional information from staff or the applicant as directed. Planning Application 2012-07, 02-28-2012, Page 4 Staff Recommendation: Staff believes that the requirements for variance consideration are present. Because the language for variance approval is open and permissive, the City may consider a variance when the required conditions are present. In this case, it appears that the applicant could develop the property to the extent of four new lots with a number of configurations. While the option necessitating the variance results in an overly long cul- de- sac, it also appears to have the least impact on the land in relation to grading and tree loss. If developed under the Option A design, the applicant would connect to the existing Foxwood, but would not require the variance since that access point would not be solely necessary for access to the plat. Because the conditions resulting in the narrower right of way for the existing Foxwood Lane are not the result of any actions by the applicant, staff believes that the variance request can be found to be consistent with the intent of the zoning ordinance. Supplementary Materials: 1. Application Materials dated 2-6-2012 E Planning Application 2012-07, 02-28-2012, Page 5 Draft Findings of Fact for Approval Variance for Street Right of Way Width for Foxwood Lane 1673 Delaware Avenue and Lot 3, Foxwood 1. The width of the existing Foxwood Lane for access to the future subdivision is not the result of actions by the applicant. 2. The alternative access points potentially available to the applicant for access to the future subdivision raise concerns related to: a. Excessive grading. b. Steep street grades. c. Excessive tree loss resulting from development. d. Additional hard surface and street construction. e. Additional street construction and maintenance serving no additional lots. 3. Lots resulting from the use of the Foxwood right of way would be consistent with others found in the area and in similar zoning districts in the City. 4. Lots would be able to meet all required zoning standards of the applicable R - 1A zoning district. 5. Using Foxwood Lane for the proposed subdivision would constitute a reasonable use of the subject land, consistent with the City's Comprehensive Plan. E Planning Application 2012-07, 02-28-2012, Page 6 Draft Findings of Fact for Denial Variance for Street Right of Way Width for Foxwood Lane 1673 Delaware Avenue and Lot 3, Foxwood Access from Delaware provides a technically feasible opportunity to access the undeveloped land in questions. 2. The variance request is in conflict with the findings for a variance granted in resolution 93-45, where a front setback variance was granted based on the expectation that Foxwood Lane would only service three total properties. 3. The variance request may result in the creation of a non -conformity with the property located at 540 Wentworth Ave as a conforming side yard setback of 15 feet becomes a front yard setback requirement of 40'. 4. The Applicant purchased the Foxwood property with full knowledge of the existing conditions. 5. The extension of Foxwood Lane will require construction of a street in a narrow right of way in the existing portion, raising concerns over installation of utilities and maintenance operations. 6. The extension of Foxwood Lane results in a cul-de-sac of approximately 900 feet which is greater than the City's preferred cul-de-sac street length. Con Planning Application 2012-07, 02-28-2012, Page 7 ty 0Ir e fleigkts APPLICATION FOR CONSIDERATION OF PLANNING REQUEST Case No. Date of Application 2_ -6, -1Z - Fee -6, -1Z - Fee Paid 0/00 Applicant Name: 8&1_�f j'A,ckd(z- /' • PH: 2�97-2-02-9 (Last) (First) (M) E -Mail Address: Address: �>9R�i�� Arlt N5, � /• Sri _��J.�>°< (Number & Street) (City) (State) ' Owner Name: �Aw-rR IR"Iee r(l�� e (Last) (First) (�) Address: 7 3 I -Of 14 e.� f 9,' (Zip) (Number & Street) (City) (State) ©` t /(a Z3 def/*lo ee6- b} vc- Street Location of Property in Ouestion: 1� f K Legal Description & PIN of Property: (Complete Legal from Title or Deed must be provided) �r- 4�-iACA Type of Request: Rezoning Conditional Use Permit Conditional User Permit for P.U.D. Preliminary/Final Plat Approval Comprehensive Plan Amendment Applicable City Ordinance Number Present Zoning of Property Present Use Proposed Zoning of Property Proposed Use _Variance Subdivision Approval Wetlands Permit Critical Area Permit Other (attach explanation) Section I hereby declare that all statements made in this request and on the additional material are true. I further authorize City Officials and agents to inspect the above property during daylight hours. (Signature of Applicant) Date Received ' ` ` E_ /2,�- (Signature of Owner) 1140Il Viiclorfl a Cu rve o I� end 0112 HeAghtO, " 551]'g ° (6511) 452-11&$50 ° !FIBS (651 ➢ 452-8940 Planning Application 2012-07, 02-28-2012, Page 8 Michael M. Bader Michelle K. Bader 1673 Delaware Avenue Mendota Heights, Minnesota 55118 (651)287-2028 February 6, 2012 HAND DELIVERED Mr. Jake Sedlacek Assistant to the City Administrator City of Mendota Heights 1101 Victoria Curve Mendota Heights, MN 55118 RE: 1673 Delaware Avenue Mendota Heights, MN 55118 PIN No: 27-02400-010-76 Lot 3, Foxwood PIN No.: 27-27620-030-01 Dear Mr. Sedlacek: I enclose herewith the following originals, all in 8 %2 X 11 or smaller: 1) Application; 2) Check for $100.00; 3) Legal descriptions and PIN nuinbers for Lot 3, Foxwood and 1673 Delaware Avenue; 4) Three concept plans: A, B and 3; 5) Topographic map of the area; 6) List of neighbors within 350'. The legal description for 1673 Delaware Avenue, Mendota Heights, MN 55118, is as follows: The North one-half of the South one-half of the North-east quarter of the South-east quarter (N. '/2 of S. %2 of N.E. 1/4 of S.E. 1/4) of Section Twenty-four (24), Township Twenty-eight (28), Range Twenty-three (23), containing Ten (10 acres), more or less, according to the Government Survey thereof. Planning Application 2012-07, 02-28-2012, Page 9 Mr. Jake Sedlacek Page Two February 6, 2012 The legal description for Lot 3, Foxwood, is as follows: Lot 3, Block 1, Foxwood, Dakota County, Minnesota, according to the recorded plat thereof. It is our intent to create an upscale development of 4 new lots, 6 total, on our existing 12.5 acres. As our children begin leaving the home, Michelle and I have considered selling our home and building on our back property. Access to our western property, however, is a challenge. We attempted development in 2003 but the application was denied due to a unique requirement at that time (since changed) that a cul-de-sac in excess of 500' required a variance. We are advised by our planners, Loucks & Associates, and City staff that the attached plans A and 3 do not require variances. However, as more fully explained below, there are significant challenges associated with these proposals, and therefore believe the attached plan B is preferable, which we are told requires a variance. The reason is there is only a 50' right of way at the intersection of Foxwood and Wentworth. There isn't sufhent room west as the Lutz home was given a setback variance of 30' when Foxwood was platted. Therefore, there is only 50' from the existing Foxwood Lane to the Gray property line. The attached plan B is our preference. We are advised that because Foxwood was platted with a 50' right of way, it does not conform to the City's design standard of a 60' right of way. Currently, Foxwood is a 20' private road on a public right of way. Our proposal envisions a 30' public road with curb, gutter, water and fire hydrants, constructed at our expense. In our previous application, an extension of the 20' road width was considered, also without the requirement of a variance. If a 9 ton, 30' road is required, the economics require the maximum number of lots authorized under the existing zoning requirements. We have called some and written all of our neighbors advising them of our intentions. We invite, and welcome, their input. We have also submitted our plans to Dakota County and a meeting before the Plat Commission is scheduled for 1:00, February 13, 2011, at 1:00 p.m. in Room 1920, 14955 Galaxie Avenue, Apple Valley. Minn. Stat. 427.357 (2011), subd. 6, generally defines the city's consideration for granting a variance, as "practical difficulties." This is further defined as: Planning Application 2012-07, 02-28-2012, Page 10 Mr. Jake Sedlaeek Page Three February 6, 2012 "...that the property owner proposed to use the property in a reasonable manner not permitted by an official control; the plight of the landowner is due to circumstances unique to the property not created by the landowner; and the variance, if granted, will not alter the essential character of the locality." I. Historical Perspective The Baders propose to use the property consistent with all subdivision ordinances and historical precedent. When the Foxwood plat was approved, it was done so without a variance for a 60' right of way. When the Baders submitted plans in 2003 to extend the Foxwood right of way, no variance was required for the existing 50' right of way. To our knowledge, the right of way widths in the "super block" are, with the exception of Hidden Creek, all less than 60'. II. The proposed subdivision is a reasonable use of the property consistent with zoning requirements and the essential character of the neighborhood. The lot sizes all meet the requirements of the existing zoning ordinance and are similar in size to what has been approved in the super block. Thus, the proposals are in keeping with the existing homes surrounding the Bader property. Except for the Foxwood development, the most recent three subdivided lots range in lot size from 1 acre (524 Wentworth and 1651 Delaware to 2 acres (540 Wentworth). The Foxwood lots are larger because approximately 18% of the 10 acre development are wetland. In contrast, the Bader properties total approximately 12.5 acres and are less than 8% wetland. III. The need for the variance was not created by the Baders. The Baders did not create the 50' right of way on Foxwood. At the time the Foxwood plat was approved, the previous owner, Alice Bradford and her son, John, were on the record before the Planning Commission and City Council requesting that the right of way (road access) from Foxwood be extended to their (now Baders') property. The Baders purchased 1673 Delaware 14 years ago and Lot 3 Foxwood 7 years ago, The attached plan B envisions an extension of the road across the Baders' Lot 3, to access the western acreage_ consistent with the prior owner's request. Mr. Jake Sedlacelc Page Four February 6, 2012 Planning Application 2012-07, 02-28-2012, Page 11 IV. Delaware access is impossible or impracticable, due to steep grade and the County's preference. First, the county historically would not allow a cul-de-sac from Delaware west along the Baders' south property line (similar to Concept 3 attached). Second, 79 mature trees on the Baders' south property would have to be removed. Some, perhaps 10, may be small enough to be transplanted. Third, topography is a challenge from Delaware. There is more than a 30' drop from the crest of Baders' hill to the proposed cul-de-sac. This would require a retaining wall more than 300' in length and. up.to 10' high. Significant engineering issues must be considered. As noted, the Baders have been advised by city staff that a variance is not required to connect Wentworth with Delaware as was set forth in Option A. However, the Baders believe this option will not be well received by their neighbors. The January 25, 2012 Highland Villager notes the Mendota Heights City Administrator, Justin Miller, has as a priority an increased tax base. Mr. Miller also notes in the same article, that because Mendota Heights is nearly hilly developed, there remains room for infill. We feel this proposal meets the City's priorities. We believe that Plan B represents a reasonable use of our land that will benefit the neighbors with a wider, safer street, better hydrant access and ultimately a safer, more aesthetic neighborhood. Similarly, the city and county will benefit with an expanded tax base. In sum, we believe this proposed subdivision represents thoughtful planning and advantages to all concerned. y bmitted, ichelle Bader 7, M, > '0 06 r) 0 m > M 0 m c 0 m ➢Xn M. m Q0 ............ 0 z> rn m > 00 :z -sr Ilm m C) �-j m M 0- 0 0 wl .0 (7 9 0 m Oa .......... PREWARE AVENUE (Co. ROAD 63) n D' O n 77 D my c, . ,18 m r^ W _ ;nW T cO C 77 `` P. � 0 � O ZQ 3 Bann 2 a Peoros�u Ronn ��' rn 0. i oxtivcxns 1 nNP (Fwsnkc} .0 ..:4'. T•.T S. C > O A :7� Q r > O O O;rc n C7C c Car' v O —i OpO..•r e m G � �\�`�w r n � r-' >a I � r DELEWARE /VENUE (C Planning Application 2012-07, 02-28-2012, Page 14 s'9n r, i }WkM CGa, t�a 63J XHC1N1,Ud' 1HS NV' 1d Planning Application 2012-07, 02-28-2(}i2, Page 15 1 i / \ a----------- � \ \ \ Planning Application 2012-07, 02-28-2012, Page 16 ------ . FREDERICK T. WEYERHAEUSER 30 EAST SEVENTH STREET, SUITE 2000 SAINT PAUL, MINNESOTA 55101-4930 (651) 228-0152 February 14, 2012 Mr. Michael M. Bader 1673 Delaware Avenue Mendota Heights, MN 55118 Dear Mr. Bader: I am in receipt of your letter of February 9' 2012 stating that you would like to build a second home on your property. I have no objection to this intention as long as it complies with the City of Mendota Heights' zoning rules and environmental concerns. However, in looking at your plot plans, I discovered that you are going well beyond developing a second lot for your use and are planning on dividing the property into five new lots. I must particularly object to lots 1, 2, and 3 as each is approximately 2 acres and encroaching on wetland. I do not see how a proper septic system can be put into this small a space and am of the understanding that Mendota Heights requires 5 acres for a septic system. The wetland is critical to the whole area, as it drains to the West in a rather circuitous method, fills some ponds, and eventually drains into the Mississippi. Pollution of these wetlands could be serious, and I do not feel that the planning commission should approve this plan without environmental impact studies. I am sorry to have to object, but do feel that your proposal is not in the spirit of the letter that you have written. Warm Regards, fr' > F. T.W erhaeuser Cc: ` endota Heights Planning Council Mendota Heights City Hall Planning Application 2012-07, 02-28-2012, Page 17 Timothy J. Aune & Anne K. Miller 554 Foxwood Lane Mendota Heights, MN. 55118 February 21, 2012 Mr. Jake Sedlacek 1101 Victoria Curve Mendota Heights, MN 55118 Re: Mike and Michelle Bader's Variance Application Dear Mr Sedlacek. RECEIVED FEB 2 1 2012<9)S - ,., I am writing in regards to the variance application submitted by Michelle and Mike Bader on February 6, 2012. My wife Anne and I are opposed to this application. We respectfully ask that the Planning Commission recommend, and the City Council vote to confirm a resolution denying the variance. I am very comfortable with the broad list of specifics that will be put forth by my neighbors as a legal basis for denying the application. This will include citing the Covenants on the property. No doubt the Baders have reminded you that it is not the obligation of the the City, County, or State to enforce these Covenants. We know that, and we have never said they should. What we have said is this, to ignore their existence and not consider whether or not they have merit, especially when examining all the Baders would need to do should a variance be granted and a sub division approved, is ignoring a cornerstone of the 2003 decision that granting a variance would place neighbors into conflict. Specifically, I would ask you to review the record starting in 1993 when Foxwood was platted and well before the Baders bought their parcel on Delaware. Read the minutes. It was indeed contentious, but the consensus of how best to move forward was clear. Foxwood would only be three lots, and there would be a bias towards insuring a natural setting, including a landscape easement on the eastern edge. And this is the City's resolution, not the Covenants, though in many ways they do mirror each other. Seven years later we bought Lot #2, and knew full well what we were getting, both the restrictions and the protections. Two years later the Baders bought lot #3 and should have known the same. If the Baders have any "plight" they may want to contemplate it was from bad legal opinions when they bought Lot#3. Lastly, remember that the Lutz home is where it is due to the City's preference. To us the choice for the city is clear: Deny the variance and put this issue of southward extension of Foxwood to rest, or begin the process of condemning the Lutz home and obtaining through eminent domain a code compliant right of way all the way to Marie. Any other option will only result in decades of misery as Foxwood Lane cascades amidst litigation and ill will southwards. Planning Application 2012-07, 02-28-2092, Page 18 Anne and I would like to thank you and the members of the city staff that accommodated information requests and took the time to meet and answer questions I had- I look forward to presenting my views and answering any questions the Planning Commission may have. Sincerely, Timothy J_ Aune Cc: Planning Commission Members Planning Application 2012-07, 02-28-2012, Page 19 Jake Sedlacek From: Lisa Gray <Igray@cerberuschicago.com> Sent: Wednesday, February 22, 2012 10:55 AM To: Jake Sedlacek Cc: Lisa Gray Subject: Letter from Lisa Gray in opposition to Bader Variance Application Attachments: file_pdf - Jake, attached hereto is my letter stating my opposition to the Baders' variance application. Thanks for your assistance in answering my questions as to how to submit my response. Sincerely, Lisa This e-mail message and any attachment to this e-mail message contains confidential information that may be legally privileged and/or deemed to be material non-public information. The recipient may not reproduce, copy or forward (whether electronically or otherwise) any of the information or materials contained herein to any other person, except to the receiver's professional advisors. If you are not the intended recipient, you must not review, retransmit, convert to hard copy, copy, use or disseminate this e-mail or any attachments to it. If you have received this e-mail in error, please immediately notify us by return e- mail and delete this message. E-mail transmissions cannot be guaranteed to be secure or error -free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender therefore does not accept liability for any errors or omissions in the contents of this message which arise as a result of e-mail transmission. If this e-mail contains a forwarded message or is a reply to a prior message, the sender may not have produced some or all of the contents of this message or any attachments. If verification is required, please request a hard -copy version. This message is provided for informational purposes and should not be construed as a solicitation or offer to buy or sell any securities or related financial instruments. 1 Planning Application 2012-07, 02-28-2012, Page 20 LISA A. GRAY 540 WENTWORTH AVENUE MENDOTA HEIGHTS, MN. 55118 February 19, 2012 Mr. Jake Sedlacek Assistant to City Administrator 1101 Victoria Curve Mendota Heights, MN 55118 Re: Mike and Michelle Bader's Variance Application Dear Mr. Sedlacek: I am writing to express my opposition to the variance application submitted by Michelle and Mike Bader on February 6, 2012.1 1 am doing so with no personal animus, but with a commitment and desire to maintain the essential character of the neighborhood, For the reasons set forth below, I urge the Planning Commission to recommend that the City Council deny the variance. 1. The Baders Lack the Required Interest in Property to Support the Variance Application Unlike most landowners who seek a variance from a zoning ordinance to alter their property, the Baders are seeking a variance which involves land they do not own. The variance request involves Foxwood Lane, a private road within a public right-of-way.z It is axiomatic that variance law is predicated upon the applicant being the owner of the land for which the variance is sought or the owner of the affected land consent to the application. (See Minn Stat 462.357, all references therein to "property owner" or "landowner"). Given that the Baders are not the owners of a substantial portion of the property for which they seek a variance and that the owners of the land that would be adversely affected by the variance have not consented to this application, they do not have the required property interest to support the pending application and, as such, it should be denied. 11. The variance is inconsistent with the City's 2030 Comprehensive Land Use Plan Under Minnesota law variances shall only be permitted when they are in harmony with the general purposes and intent of the ordinance and when the variances are consistent with the applicable City's comprehensive plan. (Minn. Stat. Section 462.357 Subd. 6(2) (emphasis added)). In the instant case, the 1 As the Baders appear to be limiting their variance request to "Option B" 1 have focused my comments on this proposal. I disagree with their conclusion that Option A and Option C would not require a variance and, as such, I request the opportunity to comment further if these plans will be considered by the Planning Commission. Z The road is maintained by the property owners and is subject to an operating agreement. 1 Planning Application 2012-07, 02-28-2012, Page 21 requested variance is not consistent with the City's 2030 Comprehensive Land Use Plan ("Comprehensive Plan") and the policies set forth in the Plan. The Baders' basis for the variance request is to allow them to create an "upscale development" in the Somerset area. Accordingly, in analyzing whether the variance is consistent with the Comprehensive Plan, it is necessary to look to the Comprehensive Plan's stated development goals and policies. The Comprehensive Plan identifies six specific sites that are either vacant or have potential redevelopment areas ("infill areas"), including the Somerset area 3. Notably, however, the City recognized the risk that potential development would dramatically change an infill area such as Somerset. In order to ensure there were protections against such an event, the Comprehensive Plan adopted the following six policies to be considered when an infill development is proposed. 1. Require that any new development or redevelopment meets all zoning and subdivision regulations; 2. Avoid access and traffic which unduly burdens just a few properties; 3. Ensure that development of infill sites will not result in any negative impact on existing environmental conditions, such as soils, wetlands, drainage or similar factors; 4. Require that all development of infill sites provide access to a public street, new or existing; 5. Ensure that land uses are compatible with the surrounding neighborhood , and do not reflect a "spot -zoning" pattern; and 6. Avoid infill development that relies on private streets or "flag -lot" design. (See Comprehensive Plan at page 59.) On its face, the Bader's application is in conflict with policies # 2, # 4 and #6, as it relies not only upon a private street, but also places an undue burden on just a few properties. If the Baders are allowed to widen Foxwood lane to 30 feet and add curb and gutter as they outline in their Option B, the expanded road will literally run through the Lutz's front yard_ It will also result in the loss of mature trees and other landscape features which serve as a planned and contractually agreed upon scenic buffer between my property and Foxwood Lane .4 Moreover, as there are numerous wetlands in the area, including one that is depicted as being extremely close to the Baders' proposed expansion of Foxwood, it is also likely 3 The Plan identified a number of significant barriers to subdivision within the Somerset area, including the need to provide public sewer, water and road systems, the need for environmental studies to ensure maintenance and protection of wetlands and wooded areas, acquisitions and upgrade of existing prior roads, assessments for public infrastructure and possible condemnation proceedings. (See Comprehensive Plan at pp 56-57) ° My property, 540 Wentworth Avenue (the former Garrett residence), is the beneficiary of protective covenants which create a "No Cut Zone" that is specifically intended to "serve as a landscape buffer to screen the Neighboring Properties from the improvements to be constructed upon the [Foxwood properties]." (See Declaration of Covenants, Conditions and Restrictions ("Declaration") p.6, attached hereto as Exhibit A.) "An acceptable landscape buffer" along the border of my property and Foxwood Lane was also a condition of the City's approval of the Foxwood sub -division. (Letter to Gerald Mazzara from Kevin Batchelder, approving the Preliminary Plat for what is now known as the Foxwood development (conditions 10 and 15), attached hereto as Exhibit B). 2 Planning Application 2012-07, 02-28-2012, Page 22 that the expansion would negatively impact essential environmental factors.s As the Baders' variance request is not consistent with the Comprehensive Plan, Minnesota law requires that it be denied. (Minn. Stat. Section 462.357, Subd. 6(2)) [it. The Baders cannot meet the "practical difficulties" test set forth in Minn. Stat. Section 462.357, Subd 6(2). Minn. Stat. 462.357 requires that in order for a variance to be granted, an applicant must show that there are practical difficulties in complying with a zoning ordinance. "Practical difficulties" as used in connection with the granting of a variance, means that: The property owner proposes to use the property in a reasonable manner not permitted by the zoning ordinance; the plight of the landowner is due to circumstances unique to the property not created by the landowner,- and the variance, if granted, will not alter the essential character of the locality. (Minn. Stat. 462.357 Subd. 6(2)) As is evident from the discussion below the Baders' have not and cannot establish the elements necessary to obtain a variance, The property owner proposes to use the property in a reasonable manner not permitted by the zoning ordinance. The "use" that the Baders propose the property be put to —the creation of an upscale development— is obviously based upon their view that subdividing their land will enhance its value. Indeed, the only reason the Baders' need a variance for road width is to create a road suitable for their sub -division plans. It is well settled in Minnesota law that "economic considerations alone do not constitute practical difficulties." (Minn. Stat- Section 462.357 subd.6 (2)) Additionally, the proposed expansion of Foxwood Lane violates provisions of the restrictive covenants encumbering the property (e.g. prohibition against grading, removal of soil, placement of soil or fill and construction of any improvements (other than landscaping) in the "No Cut Zones"). (See Declaration, attached as Exhibit A.) The expansion would also result in a breach of the City's condition for approval of the Foxwood development that "an acceptable landscape buffer be established along the eastern boundary of the property." (March 4, 1993 Letter to Gerald Mazzara from Kevin Batchelder, approving the Preliminary Plat for what is now known as the Foxwood development (condition 15), attached hereto as Exhibit B) It is not a reasonable use of the property to violate either the City's conditions or the provisions of the restrictive covenants. • The plight of the landowner is due to circumstances unique to the property not created by the landowner. - s At a minimum further study would need to be undertaken to determine the impact on essential environmental factors prior to any approval. (See Comprehensive Plan at page 59.) 3 Planning Application 2012-07, 02-28-2012, Page 23 The Baders' purchased their Foxwood property knowing that: 1. Foxwood Lane was a private road that was built and approved by the City to serve as egress for the three plotted Foxwood lots. 2_ The Foxwood property was subject to protective covenants that prohibited further sub- division. 3. The protective covenants identified a "Restricted Area" and a "No Cut Zone" which contained significant restrictions on changing the character of the natural setting of the Foxwood Lane development. 4. The protective covenants specifically prohibited grading, removal of soil, placement of soil or fill and construction of any improvements (other than landscaping) in the "No Cut Zones," which they knew or reasonably should have known would prohibit the construction of or an expansion of a road through this area. (See Declaration, attached hereto as Exhibit A) The Declaration'was a matter of public record and easily accessible by any title search. Moreover, it is my understanding that Mr. Bader was specifically made aware of private nature of Foxwood Lane at the time he purchased the property. Given this, the Baders cannot be treated as innocent landowners seeking relief from compliance with City zoning requirements. • The variance if granted will not alter the essential character of the locality. The Baders' proposal to widen Foxwood Lane from 20' to 30' and to obtain a variance from the 60' right of way width would essentially change Foxwood Lane, a lovely and scenic private driveway into a public through street .b This proposed change, which is the first step in their plan to "create an upscale development" -- complete with monument markers at the Wentworth entrance and much smaller lots' -- would irrevocably alter the natural quality of the neighborhood and thus its essential character. This is not what I or my neighbors want for our quiet wooded neighborhood. Instead, the City should protect against encroachment of unwanted development that requires a significant variance in conflict with city policies and protective covenants to maintain the secluded wooded setting that exists today. These features 6 The City in its approval of the Foxwood development required a 50' right of way (instead of its standard 60' right of way) and a 20' wide paved driveway (without gutters and curbs). -An analysis of the Minutes of the City Council Meetings pertaining to the development of the Foxwood sub -division establishes that these parameters were approved because the City desired to maintain and protect the natural setting of the neighborhood. ' The lots which border and are immediately adjacent to Foxwood Lane are at least 2 acres and have maintained a natural setting. 4 Planning Application 2012-07, 02-28-2012, Page 24 are at the heart of the value of our neighborhood. In talking to the other neighbors (besides the Baders) who border Foxwood Lane, it is clear that they share this desire.$ Significantly, the City previously recognized the essential character of the neighborhood and ensured that its country -like quality would be maintained. Prior to approving the sub -division and platting of the Foxwood sub -division, it placed a number of conditions on its approval. Among these were the requirements that the minimum acreage of the lots would be 2 X. acres and that "an acceptable landscape buffer be established along the eastern boundary of the property, as approved by city staff." 9 (March 4, 1993 Letter to Gerald Mazzara from Kevin Batchelder, approving the Preliminary Plat for what is now known as the Foxwood development (conditions 10 and 15), attached hereto as Exhibit B). The final plat met these conditions and was approved on September 7, 1993. No factors exist today that should change the City's position. As a further protection that the essential character of the Foxwood Lane locality be maintained, protective covenants were developed that run with the land_ These protective covenants, which benefit not only the Foxwood landowners, but also identified neighboring properties, are specifically designed to maintain the character of the neighborhood. (See Declaration, attached hereto as Exhibit A). As I noted above, the Baders' proposal, including the variance they are seeking, would violate these covenants. Although, it is not the City's duty to enforce these covenants it is important to note three things: First, these covenants run with the land and are binding on all parties having any right, title or interest in the subject property and can be enforced by the owners of the Foxwood lots as well as certain neighboring properties. Second, the Baders were aware of these covenants at the time they purchased Foxwood Lot 3. Third, if the Commission was to grant the variance it would basically be assisting the Baders to breach the covenants and put the people who benefit from these covenants in conflict with the Baders. A final and very important point in considering how the variance would affect the character of the neighborhood is the fact that his expansion of the road will basically result in a "taking" of a portion of the Lutz's front yard. 8 1 also spoke to Mike Bader. Mr. Bader explained that he and Michelle wanted to downsize their house size and property, while staying in the neighborhood. I sincerely respect the Baders' stated desire to both downsize and stay in the neighborhood_ I respectfully submit, however, that this goal is currently achievable without a variance and without changing the character of the neighborhood. I also spoke with Mike about his idea of a land swap that would involve moving Foxwood Lane to enter through my driveway and run across my property. As this plan would create the need to move my septic system and destroy the natural treed setting, I had no desire to agree to it - 9 The landscape buffer was specifically discussed at the march 2, 1993 meeting of the City Council. In responding to a question -from Council member Krebsbach,-who asked if -more effort could be made to provide an evergreen barrier along the lot line adjacent to the Garret property, and particularly along the drive, the developer, Mr. Mazzara, stated that he added a 35 foot scenic easement along the lot line for the benefit of the Garretts, and that he would work with the Garretts to develop an acceptable landscape buffer. (Page # 3552, March 2, 1993 Minutes of Action of City Council, attached hereto as Exhibit C) Planning Application 2012-07, 02-28-2012, Page 25 In conclusion, I want to thank you and the Planning Commission for taking the time to consider my views_ As you may be able to tell, the feel and look of my property and the neighborhood are vitally important to me and my neighbors. if you should have any questions or need further information from me, please do not hesitate to let me know. As I will be away on business travel up until the hearing the best way to reach me is to call my cell phone: 612 865 4118. Respectfully Yours, Lisa A. Gray Cc: Planning Commission Members Enclosures 6 Planning Application 2012-07, 02-28-2012, Page 26 s EXHIBIT A Planning Application 2012-07, 02-28-2012, Page 27 �-I 1116605 ,qwp, Comes. W. Rammeff NVS OHJUFUH AM AT Ray 3 3 of M'53 Dur - 111660 EJ uWZE .IA116 H CASH ❑ WMM Fo�om J D0 NOT REMOVE bw env ,Ct'P gra s Planning Application 2012-07, 02-28-2012, Page 28 ■ 1116605 041393 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS i THIS DECLARATION is made as of this L day of t� 1993, by The Traverse Foundation, a non-profit corporation under the laws of Minnesota ("Declarant"). I_ Declarant is the owner of certain land in the City of Mendota Heights, County of Dakota, State of Iviinnesoia, legally described on attached Exhibit , (the "Property"). 2. Declarant intends to sell the Property to parties who will develop it for residential purposes. 3- In order to provide for the necessary administration, preservation and enhancement of the Property and certain neighboring properties described on Exhibit 13 (the "Neighboring Properties"), Declarant hereby declares that the Property is and shall be transferred, held, sold, conveyed, occupied and developed only subject to the following covenants, conditions, restrictions and reservations which are for the purpose of protecting tine value and desirability of the Property and the Neighboring Properties, and which covenants, conditions, restrictions and reservations shall run with the Property and be binding on all parties having any right, title or interest in the Property or any part thereof, their heirs, successors and assigns, and shall inure to the benefit of each owner thereof. ARTICLE I pHF1NMONS The following words, when used in this Declaration shall have the following meaning: a. "Property" shall mean the tracts of parcels of real property described and defined in attached Exhibit A. b. "Lot" shall mean any lot created through a subdivision of the Property_ (Prior to subdivision, the provisions of this Declaration applicable to Lots shall be deemed to apply to the Property). C, "Dwelling" shall mean and refer to any house or appurtenant structure constructed upon a Lot and intended for use and occupancy as a residence by a single family. d. 'Owner' shall mean the record owner, whether one or more persons or entities, of the feesimple title to any Lot. However, if the Owner of a L.ot transfers Planning Application 2012-07, 02-28-2012, Page 29 the same by contract for deed, then unless the contract for deed provides otherwise, the vendee under the contract for deed shall be deemed to be the Owner for purposes of this Declaration. e. Neighboring Properties shall be deemed to mean the properties dewri-W on attached FAhihit 13. f. "Restricted Areas' shall mean those portions of the Property shown by cross -hatching on the site plan attached hereto as Exhibit C and labeled "Restricted Area'. g. "No Crit Zone" shall mean those portions of the Property shown by cross -hatching on the site plan attached hereto as Exhibit C and labeled 'No Cut Zone". ARTICLE H ARCHPIT,CPQRAL CONTROL a. No Dwelling, building, fence, wall, patio or other structure shall be commenced, placed, erected or maintained upon the Property or any Lot, nor shall the grades and earth contours of the Property or any Lot be substantially altered, until the plaru and specifications therefor showing the nature, kind, shape, height, color, materials, set backs, and location of the same, shall have been submitted to and approved in writing by the Architectural Control Committee (the 'Comnuttee"); provided, however, that with respect to the ptans and specifications for the initial Dwelling on each Lot, the Committee must first solicit comments from the Neighboring Properties as to the design and location of the same, before the Committee may grant such approval. The Committee shall be composed of three (3) or more representatives appointed and reappointed from time to time by the Declarant; provided, however, that following the conveyance of the Property by Declarant, the members of the Committee shall be appointed by majority vote of the Owners of the Lots. In the event the Commitieo'faiis to approve or disapprove any proposed design, materials, height, color or location within thirty (30) days after the plans and specifications have been submitted to it, approval will not be required and this Article shall be deemed to have been fully complied with. Certain decisions shall bCr subject to arbitration in accordance with paragraph d of this Article U and paragraph a of Article IV. b. The Committee shall appoint one of its three (3) members to be its chairman. The chairman. shall call meetings of the Committee. A quorum of the Committee shalt consist of a majority of its members. The Committee may act upon the vote or written consent of a majority of the members present at any meeting at which a quorum is cshablisheii The chairman of the Committee is authorized to and shad upon request execute, certificates of approva], notices of disapproval and similar 2 Planning Application 2012-07, 02-28-2012, Page 30 instruments evidencing decisions of the Committee. if requested by an Applicant, such certificates shall be in recordable form. C. At least thirty (30) days before construction is commenced, the Owner shall submit to the Committee two (2) complete set of plans and specifications l[i cluding, without limitation, bill site plans, and a complete description of exterior colors and materials), in care of the Committee at VPo/ :915— 54- -.: sk -lot, &2o %W SS937 , or such other address as the Committee, may from time to time specify- Prior to submitting such material, an Owner may submit "concept plans" to which the Committee shall issue a preliminary response in anticipatiop of submission of final plans and specifications. d. Within thirty (30) days of receipt of such pians and specifications the Committee shall approve or disapprove the same in writing. The Committee may disapprove plans and specifications only for one or more of the following reasons: (1) Noncompliance with this Declaration; (2) Failure of a proposed Dwelling to be of a style, color, location, size, quality of construction or price range compatible with the Dwellings in the property previously approved by the Committee or those existing within the Neighboring Properties; (3) Failure of a proposed fence or other material improvement to be placed and oriented on a Lot in a manner compatible with the Dwellings or improvements built or to be built upon a Lot or those existing within the Neighboring properties and in a manner compatible, in the reasonable opinion of the Committee, with the grading or terrain of the Property or the Neighboring Properties; (4) Failure of a fence or other material improvement to be compatible with improvements on the Property or the Neighboring Properties in terms of height, location, design, materials, set-bac16 and/or screening of views; (5) Failure of the plans and specifications to show, in the reasonable discretion of the Committee, all information necessary for the Committee to evaluate the foregoing characteristics. (6) Failure of the, plans and specifications to demonstrate that the Restricted Areas will be preserved in a natural state, the No Cut Zone requirements will be respected; and neither area will be adversely affected in any material way by the contemplated improvements or alteration. Planning Application 2012-07, 02-28-2012, Page 31 The purpose of the foregoing standards is to provide a means for the construction of a Angle -family residential development where (i) the design and construction of each Dwelling and improvement shall be compatible with neighboring Dwellings (both within the Property and the Neighboring Properties) and improvements (bath within the Property and the Neighboring Properties) and will not interfere with the use of or detract from the value of other Dwellings and improvements (both within the Property and the Neighboring Properties); and (ri) the covenants and restrictions contained in this Declaration will be respected and adhered to. Tice Committee's determination shall be conclusive, unless arbitration is formally requested within ten (10) business days following receipt by a requesting party of the Committee's decision- If the Committee disapproves the plans and specifications, it shall state in writing the reason for such disapprovul and the deficiencies which must be cured to obtain approval. Arbitration, if requested, shall be in accordance with Article IV, paragraph a of this Declaration. C. If construction of a Dwelling, fence or other improvement is commenced without approval by the Committee of the plans and specifications, or if construction of a Dwelling, fence or other improvement is completed other than in accordance with Committee approved plans and specifications, any Lot Owner or any owner of a parcel within the Neighboring Properties may bring an action to enjoin further construction and to compe? the nonconforming Owner to conform the Dwelling, fence or other improvement with plans and specifications approved by the Committee, provided that such action shall be commenced and a notice of lis pendens shall be filed no later than ninety (90) days after the date on which the certificate of occupancy is issued by the appropriate municipal authorityin_ the case of a Dwelling, or the date of completion, in the case of a fence or other improvement. f. The Committee shall retain for a reasonable period all plans and specifications submitted to it and a record of all actions taken with regard thereto. g. In the event that the Committee fails to discharge its obligations under this Article ll, the Owner of any Lot or any owner of one of the Neighboring Properties may bring an action for injunctive relief (mandatory or prohibitory) to compel the discharge of said obligations. Under no di cumstances shall the Committee, its members, or any of them, be liable to any person for damages. (direct, consequential, incidental or otherwise) in connection with the failure of a party to carry out said party's obligations hereunder. Planning Application 2012-07, 02-28-2012, Page 32 ARTICLE III RE57RIMONS a. Subdivision. Not more than three (3) Lots may be created through subdivision of the Property_ Not more than ornt (1) );welling may be constructed on a Lot, b- fig. No Lot shall be used except for. 1. Single family residential purposes; 2_ Office use as an accessory to the use of a Lot and the Dwelling thereon for residential purposes, so long as such use does not adversely affect any other Dwelling in the Property or the Neighboring Properties; provided, however that no such use shall be allowed if such use would not be permissible under applicable law. 3. Single family residential purposes include Dwellings and attached or detached garages, swimming pools, tennis courts and customary attendant structures, but does not include "bed and breakfast" operations, hotels, boarding houses, or multi -family residential uses or group -homes- No Dwelling shall be erected, altered or placed on the Property or a Lot or permitted to remain these other than one detached singlo-family Dwelling not to exceed two (2) stories in height, as measured from grade_ In the event the Dwelling includes a walk -out basement, the basement shall not be counted as a story. Each Dwelling shall be of a quality substantially equal to or better than that of the Dwellings presently existing on the Neighboring Properties_ 4. Subject to paragraph 5, below, promptly following completion of a Dwelling thereon, each 144 shall be hilly seeded or sodded and Landscaped in accordance with such standards as may be reasonably adopted from time to time by the Committee; provided, however, that the Restricted Areas and the No Cut Zone shall be preserved in accordance with the provisions of this Declaration. 5. All driveways shall be hard surfaced with concrete or bituminous material in. accordance with design and material standards reasonably adopted by the Committee. C. $e�McIW Aren. The Restricted Areas shall be maintained in their current nahual condition, including maintenance of any existing landscape barriers, and no structures shall be constructed, erected or: placed upon or beneath the Kestricted Area. No earn,, gravel, soil, or other natural material or substance shall be moved or removed"fiom the Restricted Area and there shall be no excavation of 5 Planning Application 2012-07, 02128-2012, Page 33 any nature whatsoever. No soil, sand, gravel or other substance or material as landfill shall be placed, dumped or stored upon the•Restrieted Area and no waste, trash or garbage shall be placed, dumped or stored upon the Restricted Area. Nothing shall be done or kept upon the Restricted Area which would be a violation of any statute, rule, ordinance, regulation or other validly imposed requirement of any governmental or quasi -governmental body. No damage to or waste of the Restricted Acta or any part thereof shall be committed by any Lot Owner or any guest or invitee of a Lot Owner or occupant of a Lot. It is the intention of Declarant that the Restricted Areas be preserved in their natural state both to foster conservation of wildlife and as a nahual landscape buffer to screen the Neighboring Properties hom the improvements to be constructed upon the Property. d. No Cut Zone. The No Cut Zone is a. portion of the Property that is to be maintained in its existing landscaped condition, subject, however, to reasonable changes permitted by the Committee. Contrary to the provisions regulating the Restricted Areas, however, managed pruning, additional planting and replacement shall be permitted. No earth, gravel, soil, or other natural material or substance shall be moved or removed from the No Cut Zoete and there shall be no excavation of any nature whatsoever except in connection with new or replacement plantings. No soil. sand, gravel or other substance or material as landfill shall be placed, dumped or stored upon the No Cut Zone and no waste, trash or garbage shall be placed, dumped or stored upon the No Cut Zone. Nothing shall be done or kept upon the No Cut Zone which would be a violation of any statute, rule, ordinance, regulation or other validly imposed Trquirrsnent of any governmental or quasi -governmental body. No damage to or waste of the No Cut Tone or any part thereof shall be committed by any Lot Owner, guest, invitee or occupant of the Property or any portion thereof. It is the intention of Declarant that the No Cut Zone serve as a landscape buffer to screen the Neighboring Properties from the improvements to be constructed upon the Property - e. i?nyhrMWn of D acme and Certain-Actiyifts. Nothing shall' be done or kept on the Property or any Lot or any pari thereof, which would be a violation of any st m te, Wile, ordinance, regulation, permit or other validly imposed requirement of any governmental body. No damage to, or waste of, a Lot or any part thereof or of any DwcUing and/or improvements thereon shalt be committed by any Owner or any guest or invitee of any Owner or occupant and each Owner shall indemnify and hold the other Owners; as well as the Owners of the Neighboring Properties, Harmless against all loss resulting from any such damage or waste caused by him or her or his or teen guests and invitees. No noxious, destructiveor offensive activity shall be allowed on the. Property or any Lot or any part. thereof; nor shall anything be done thereon which may be or may become an unreasonable annoyance or nuisance to any other Owner or to any other person at any time'lawf illy on the Property or the Neighboring Properties. Planning Application 2012-07, 02-28-2012, Page 34 f. Qra� ding. Fences. Walls and Patios. No Owner shall materially change the grade of the Property or a Lot, or construct, relocate, heighten, lower or otherwise move or change any fence,- wall, deck or patio or other improvement except as provided in Article III hereinabove_ g. Prohibited Structures. No structure of a temporary character, trailer, tent or shack shall be maintained on the Property except by builders on a temporary basis during the period of construction of a Dwelling on a tot. h. Storaee_ Outside storage of boats, recreational vehicles, trailers, inoperable cars or other property shall not be allowed unless screened from view by enclosures approved in accordance with the architectural control provisions in Article III hereof however, outdoor cooking equipment, patio furniture and children's recreational facilities which are well-maintained and atiractive'(as reasonably determined by the Committee and ratified, all in accordance with Article M) may be i kept upon a Lot. The storage or collection of rubbish or any material that emits foul or obnoxious odors,the (subject to paragraph c, above), y growing (sub" of an noxious jweed or other noxious natural substance, and the harboring of any source of unreasonable noise or activity which disturbs the peace, comfort or serenity of Owners, is prolu-bited. Usual trash and garbage shall be kept in sanitary containers in a neat and clean condition, shall be regularly collected and may be kept outside only if in sanitary containers which are screened, and approved by the Committee_ i. 5kn3. No sign of any kind shall be displayed to the public view on any Lot except one sign no larger than 3 feet by 4 feet in size may be placed on the Property or each Lot advertising the Lot for sale. J_ Antennae" Television and radio antennae and satellite receiving dishes may be erected or placed upon Lots or the exterior of Dwellings in accordance with regulations and prior approval of *the Arrhilecuiat Control Committee obtained as provided by Article III hereof_ k. Vegetable Gardens_ The planting or maintenance of vegetable gardens on Lou is permissible provided'they are of a reasonable size, planted and maintained in that portion of a Lot behind a'Dwelling, (or on the side yard areas of Lots)._and are reasonably maintained or screened from public view. 1. yS&. Dogs, cats and. other pets of a customarynature shall be permitted provided that n no commercial or hobby breeding operation may be maintained, (H) all pets are at all. times reasonably secured and (iii) allkennels and/or runs arc coreriructed and maintained only in conformance with the requirements of Article III of this Declaration. Planning Application 2012-07, 02-28-2012, Page 35 M. Grading. No change in the grading of the Property or any Lot shall be undertaken except in conformance with Article IIT hereof. Under no circumstances shall fill or other material be removed from a Lot except as may be reasonably necessary to construct a Dwelling.or other improvement to a Lot. n. SingIc Family UV. Under no circumstances shall -any Dwelling or Tut be used: () to house more than a single family, (ii) for hotel or other transient purposes, (riu7 for group home purposes, and (v) except in conformance with Article IIL Guests may stay in Dwellings for reasonable periods provided that such use does not intensify the use of a Dwelling to a level which is burdensome to other Owners of Tots in the Property or Neighboring Properties. ARTICLE IV GENERAL, PROVISIONS a. Enforcement. Any Owner shall have the right to enforce by any proceeding, at law of in equity, all restrictions, conditions, covenants, and reservations, now or hereafter imposed by the provisions of this Declaration. The Owners of parcels in the Neighboring Properties may enforce the provisions of this Declaration to the extent set forth herein. Except as otherwise provided in this Declaration, failure to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. b- S ility_ Invalidation of any one of these covenants'or restrictions by judgment or court order shall in no, way affect any'other provisions, all of which shall remain in full force and effect. C. Duration. The covenants and restrictions of this Declaration shall run with and bind the land, and shall inure to the.benefit of and be enforceable by any Owner of a Tut subject to this Declaration (as well as by the Owners of any tract in the Neighboring Properties to the extent remitted hereunder), their respective legal representatives, heirs, successors and assigns, for a term of thirty (30) years from the date this Declaration is recorded, after which time the covenants and restrictions shall be automatically renewed -for successive periods of ten (10) years each unless a majority of the Owners and fust mortgagees of the Property vote to terminate this Declaration. d, Amendment This Declaration may be amended by an instrument signed by the Owners and first mortgagees of at Ieast sixty-six. percent (66%) of the Lots in the Property. Each amendment must be recorded to be effective. No amendment that affects the Neighboring Properties shad be effective unless approved in writing by a majority of the Owners of the Neighboring Properties. Planning Application 2012-07, 02-28-2012, Page 36 e. Arbitration. Any dispute involving the granting (or failure to grant) approval of a request under Article II (Architectural Control) or a decision of the Committee which is not resolved within a reasonable time (which in the absence of a different agreement by the affected parties shall be deemed to be ten (10) days) shall be determined by binding arbitration as follows: () arbitration shall be available only if requested by an affected party within ten (10) business days following receipt of a written dxision of the Committee; (ii) on ten (10) days written notice -by any party to the others, the Committee and the party requesting arbitration shall each designate an arbitrator and if the two arbitrators so appointed fail to resolve the issues in question, a third arbitrator shall be selected by the two arbitrators so designated. (If two or more parties request arbitration, the requesting parties shall mutually agree on an arbitration and if the requesting parties fail to so agree, the arbitrator chosen by the fast of said requesting parties shall be deemed to be the arbitrator mutually selected" by the requesting parties.) All arbitrators selected under this paragraph shall have experience in connection with maintenance, repair or construction of improvemrnts similar to the item at issue, if the dispute involves construction, maintenance or repair, or shat have familiarity with the area or discipline which is the subject of the dispute. If any party fails to designate an arbitrator within ten (10) days following notice, or if the two arbitrators designated fail to reach an agreement within five (S) days following then' appointment and fail to agree upon a third arbitratm within five (5) days thereafter, any party may seek relief from any court of competent jurisdiction at a hearing*to be held following notice to all parties. Specifically, the court sMFbe authorized, among other things, to appoint one or more arbitrators_ Each party shall be entitled to be represented by counsel in any arbitration proceeding. The difference or dispute shall be seined in accordance with the Uniform Arbitration Act and the Hiles of the American Arbitration Association shall govern. The decision of'the majority of the arbitrators, signed and acknowledged, shall be final and binding upon the parties. To the extent feasible, the decision of the arbitrators shall be made within thirty (30) days after the matter is submitted to arbitration, although the parties may agree upon a shorter period: Each party shall pay the costs and expenses of the arbitrator selected by"that party as well as that party's own allemey's fees, The cost, fees and expenses of the third arbitrator, if any, shall be paid by the losing party in the arbitration proceeding, and the definition of "losing patty" shall be determined by the arbitrators. Notwithstanding the foregoing, the arbitrators shall be permitted to allocate the expenses of the third arbitrator equally between the parties. Planning Application 2012-07, 02-28-2012, Page 37 IN WITNESS WHEREOF, the undersigned, being the Declarant herein, has hereunto caused these presents to be executed this ^ day of , 1493. This instrument was drafted by; Fredrikson & Byron, P.A. (IJB) 900 Second Avenue South 1100 Into natimW Centre Minneapolis, Nnncsola 55402 THE TRAVERSE FOUNDATION" By� Its ntUSC�.G-7T and( By l.l,l-�— IIS fCR /tVOSi(i.Pn't STATE OF t a+<GSof$ ) ss. COUNTY OFhl ) The foregoing instrument was 'acknowledged before me this Aday of 1993 by Norman W. Hams, III and Linda Brown Harris, the-�ALJr3�.0 and ✓.7ti PSA'' of The Traverse Foundation, a non-profit corporation, under the laws of Minnesota, on behalf of the - fit corporation_ 1!07--J o Pubiic V. vary This instrument was drafted by; Fredrikson & Byron, P.A. (IJB) 900 Second Avenue South 1100 Into natimW Centre Minneapolis, Nnncsola 55402 Planning Application 2012-07, 02-28-2012, Page 38 YI EXHIBIT A Legal Description of the Property Tile Northwest Quarter of the Northeast Quartet of the Southeast Quarter of Section 24, Township 28, Range 23, according to the United States Government Survey thereof and situate in Dakota County, Nfinu sota_ Planning Application 2012-07, 02-28-2012, Page 39 EXHIBIT B Legal Description of the Neighboring Properties GAR= PARCEL: Lot 3, Block 1, Wallner-Joyce Estates, Dakota County, Miinnesota. F MECEL: The South one half of the South one half of the Northeast Quarter of the Southeast Quarter (S 1/2 of S 1/2 of NE V4 of SE 1/4) of Section twenty-four (24), Township twenty-eight (28), Range twenty-threc (23), Dakota County, Minnesota. ?ORD PARCEL,: The North one half of the South one half of the Northeast Quarter of the Southeast Quarter (N 1/2 of S 1/2 of NE 1/4 of SE 1/4) of Section twenty-four (24), Township twenty-eight (28), Range twenty-three (23), Dakota County, Mnnesota_ DFRAUF PARCEL: The East 208.71 feet of the North 834.84 feet of the Northwest Quarter (NW 1/4) of the Southeast Quarter (SE 1/4) of Section twenty-four (24), Township twenty-eight (28), Range twenty-three (23), Dakota County, Minnesota, The Weft 30 feet of the East 238.71 feet of the Northwest. Quarter (NW 1:4) of the Southeast Quarter (SE 1/4) of Section twenty-four (24), Township twenty-eight (28), Range twenty-three (23), Dakota County, Minnesota, except the North 416 feet thereof. The East 208.71 feet of the Northwest Quarter (NW 1/4) of the Southeast Quarter (SE 1/4) of Section twenty-four (24), Township twenty-eight (28),'Range twenty-three (23), Dakota County, Minnesota, except the Nort}i'834.84 feet thereof. WEYERHAEUSER PARCEL: That part of the Northwest Quarter (NW 1/4) of the Southeast Quarter (SE 1/4) of Section twenty-four (24), Township twenty-eight (28), Range twenty-three (23), described as follows: Beginning at a point in the north line of said Northwest Quarter (NW 114) of the Southeast Quarter (SE 1/4) distant 208.71 feet West from the Northeast (NE) B-1 Planning Application 2012-07, 02-28-2012, Page 40 ra corner thereof; thence South parallel with the Fast line of said Northwest Quarter (NW 1/4) of the Southeast Quarter (SE 1/4) a distance of 416,0 feet; thence West parallel with the North line of said Northwest Quarter (NW 114) of the Southeast Quarter (SE 114) a distance of 30.0 feet; thence South parallel with the Fast'line of skid Northwest Quarter (NW 1/4) of the Southeast Quarter (SE 1/4) a distance of 901.82 feet more or less to the South line of said Northwest Quarter (NW 114) of the Southeast'Quarter (SE 1/4); thence West along the South line of said Northwest Quarter (NW 1/4) of the Southeast Quarter (SE 114) a distance of 329.61 'feet more or less to a line 760 feet East of and parallel with the Wcst line of said Northwest Quarter (NW 114) of the Southeast Quarter (SE U4); thence North parallel with the West line of said Northwest Quarter (NW 1/4) of the Southeast Quarter (SE 1/4) to the North line thereof; thence East along Said North lint 357.84 feet more or less to the point of beginning. Planning Application 2012-07, 02-28-2012, Page 41 Planning Application 2012-07, 02-28-2012, Page 42 Planning Application 2012-07, 02-28-2012, Page 43 J•ja.rch 4, 1993 mr- Gerald-itizzara 4801 Vest SiSL street, Suite 101 j4j,xineapolis, jaN 55437 Dear Mr- y!azzara- C-Ity 01 He lk-a endo 0 for-4-n'ally notify YOU that th(2 CItY COt]1-1c", am �,.rriu�.ng t -or Soi piDroved your :Lreiiminary Plat mt e r s r -t t-- jdarch 2, 1993 meetinSh a, Place and a thirty foot Q,) front yard !qetback varia-nce for licit - e I)G, !.42-3! an r :L . The approvals are ass proposed in Planning Ca3 -il the plaL dated Fehr-aa-�y the tollowi--raq The Cit -y( COUncil Place'-' 10C -y :jjC- troj,,L yard setE ThaL theri� be 2ac-) nic shourn, bc prc)t�--cted. 1jetlal -.0c- 2- That Lhe w,- _ as l•:1 L!1 thc� pl,-It�- eas-,�rne-;Ir- :njid be f iled (T- 0 i ght -Oy bc pjattcd, enclosing Wa That a fifty fOO� roaChoay- w, asernent-. bf TP tbirt-Y-fi`re fo(:)Z. (351) L, -If -, e ")c a:L ons L, -If C.a'sl -r:j -i f indary- %r -A be j.nsta-le(i That a t-W-ClIiY -OCC X20' pa. e h ?hL ad for Lot 1 stay 011e I- ,ijndred feet 0-00') T hat: t -he building �0 - r - - y f rc,-;a -h - we -r-j�, -nds. 1) r*.,,-.�- Ti-je . I C) Tina r 1-10 t:ja-nds pe -mil�-, he 01, ,ampacUien by (�!Urinq 9- Thm access be Mintairmu to septic systems LO allow T !)a- r t he City once nl1rouqh th-,-� develope-r. a p -I Z. -un has bf:-L-n Comp -I o Planning Application 2012-07, 02-28-2012, Page 44 gr_ Gerald zga—`zara page LWe r ?' c^-_c`?-C?l PIc:•ll:�.iiic U!� i.t IJti c -i '�'; 4 1�?_ n�z)l- elr�•V?L? U i. L 1. L.fl =ee-L (:, ) c-,ovt_ t�lr ?7iUh lc_* ._1 a^._ hat.. :.;i_cl Ja sement be dep (=tCd Ori That t.Dark dedicatiolx Tec Of X750 per new I -, fti"� total Of -n_�al ala t S J_gnatures - yiir250 I:O paid prior LO Li ] 4 _ What tiir_- Tle Jands- surzre y be depi cCed tjno the z71at . 15. `-2ha t an Gce?Ji able IzIrldsca',Je buffer. be established a 1 c.;nq i hr-: caster�a boundary of the proverty, as approved by City Staff. You-T= l_ sten should be to Prepare a final plat fVor appro val by the City Council- It; will bc- place; oil t:h C_r�COIJrlci N1t�Cte c7D%vJed ai�llR1Ja_Pltt. conse2C agenda. It Jt-. CO71fO1'TLS - Vie jD rk dedication fce of $2,2_50 v1211 }1aVe to be paid prior to the please contact J_jn1 Daniel son ('i tyrS sjgn tu're on tyle fii7ll plat_ ..7t d f_. C) :=i:]t_?�? p.- -0 i." t0 Uroce S Clic_ elfj[JrG`-'21 Of the c1Pla.l nl an nc�e par}-_ d(,riici-I<". ion fc-c_ ce and deter-rni„�LJ..On �o><�r panes= _ Tli.�l ._- you b' Z. :Ctir '_� rC)CP_SLz1G*ll.�l7 m :<<c_S .iiLCt1 It Ova- -Or oc ss, you- p app:`- l yYt..Ced. Goad luck with yaux new U�ve�-op_ enL pr Sizeceri_ l -'r, sLx-at i` 2 PISiSi:a t 1 i Public 1'Sork. . >;� ? E Cc) Planning Application 2012-07, 02-28-2012, Page 45 EXHIBIT C Planning Applicatibn 2012-07, 02-28-2012, Page 46 Council acknowlf:dge�d -3 lUc-'Port , CASE NO 92-31Danin!SWI RAZZAIRZA -- f'rafa Gerald fol- Uhl' development of a threc lot south of Went,-,orth �--PPrnI:AznteI%, 800 feet we. -t of The had originally submitted an planned unit- -opo - j.'or- the p). had ]?eon directad by Col-111cil on JanUzi-CY to proce5s the dnjeloj-3-Incr't of zi skibdivisior. rather than as a PUD- Mr- Gerald Mazzard, from Architectural Forunn, was present to represel-It the propC27ty's buyer and ::eller. Mayor !3erten!130tt0_prjinAted out that ther& wi.l!-, Do reff,_renco, tc3 the p:3r4- contributiol)i in t h -ecr- �0,,jj:jjt�ions r -ead by Plannim: com-,Tlinsion- t, e ': -. c - . - i "! L :70, ti:: i-ne 1! r I* i 0- -101 ,�ate 4 1 baneE d the L LrjtI hicj h :!iso -id, s h o -'o t boundaries be recorded- 01) ti -ie TS i Li Mr. Mazzara stated tki- !',c t -iL .if- I -,e �,-- .1 L $2,250 park cont)-ibU tic,11 is required he ay roe._ to the reqUj-rern�2nt- jlc2� a -',-!-,a tqreec! - -r E:.jk,!vation.- oij the to h, `watt ZZ- �;j _, j7 Il Es gh plat and tc, the -ninimu-n-I 4 foot ba-senient- - elevation. HE! jnfOrMESI Council that he c. 1 i (jv yet t h e I - 0,w t b e n t i c v a ti 0 -' I bu "t ah"ve il-dir.,CT P�-(i!�; in sclven ft water 7.f r Mz,L z 7 a I -a r-, e d to i: the wetlands boundari(-.< on the' plat. Responding to a iron Councilz--tembel: sirtith, Mr- >-juzzara, stated that the 10t bet-,ve-C!n Lots I and 2 been -rC,- f ! t�, are a Caunci.'jjni..-mber Krclo!:;bach askC(I effol-" CW to a: -i "T""' I . ille to the V.nat- he a rid f., c s e. ri c.--. n i--110 -lot t b rin e: f I t 0 f t h i:-. Ga. r- rc, t t s a n d t h ai- h e spith tile Garrarin; to devvicn) landscape buffor. Public Works Director Dan-Clso-11 sta-ed resoluticnis are fo. iand that thi-2- rc�SoJULion J -'or the plats, Planning Application 2012-07,.02-28-2012, Page 47 Jennifer and Lon Lutz RECEIVED FEB 2 2 20�w 548 Foxwood Lane ��} Mendota Heights, MN 55118 February 22, 2012 Mr. Jake Sedlacek Assistant to City Administrator 1101 Victoria Curve Mendota Heights, MN 55118 Re: Application by Mike and Michelle Bader dated February 6, 2012 I am writing to the Planning Commission in order to respond to the above -referenced application. Although it is not completely clear from the application, the notice that I received from the City Clerk, Sandie Thone, makes it clear that the Baders are seeking a variance to the existing right of way width for Foxwood Lane prior to a request to extend the right of way for a subdivision." In other words, the Baders are requesting that the City convert our privately maintained road in our quiet neighborhood into a busy public street with curb and gutter through my front yard in order to accommodate houses that the Baders want to build on property that is not part of the area platted as Foxwood. Interested Parties Before I respond directly to the Baders' application, please allow me to identify the Foxwood property owners. My husband, Lon, and I are the owners of the home located at 548 Foxwood Lane, also known as Foxwood Lot 1 and, henceforth, to be referred to as the "Lutz Property." Tim Aune and Anne Miller are the owners of 546 Foxwood Lane, also known as Foxwood Lot 2, and, henceforth, to be referred to as the "Anne/Miller Property". Mike and Michelle Bader are the owners of " Foxwood Lot 3," which is currently undeveloped. The Baders are also the owners of the home and lot at 1673 Delaware Avenue, henceforth to be referred to as "Bader Delaware Property." The Bader Delaware property abuts Foxwood Lot 3 along the Nortb/South border of the 2 properties. (See Exhibit A) Similarly affected by the Baders' application are our neighbors immediately to the East. Lisa Gray recently purchased the home at 540 Wentworth Avenue, henceforth referred to as the "Gray Property". The Gray Property was previously owned by Tom and Linda Garrett. The Garretts were quite vocal during the Planning Commission meetings regarding the development of Foxwood. A Brief History of Foxwood. 1. The Somerset Place development was conceived of in 1992 and, after many meetings before the Mendota Heights Planning Commission and City Council, the Final Plat as Foxwood was approved on September 7, 1993. (See Exhibit B) In the March 4, 1993 formal notice of approval of the Preliminary Plat of Somerset Place, "a thirty foot (30) front yard setback variance for Lot Planning Application 2012-07, 02-28-2012, Page 48 1 " was granted and conditions for approval of the Final Plat were set forth. The conditions included " ... 3. That a fifty foot (50) right -of way be platted, enclosing the private roadway (and) 6. That the building pad for Lot 1 stay one hundred feet (100) away from the wetlands." (See Exhibit C) 2. In the Planning Commission Minutes from October 27, November 24 and December 22, 1992, as well as February 23 and March 2, 1993 there was a great deal of discussion among the Commissioners, neighbors and developer regarding the concerns that the area be maintained as naturally as possible. (See Exhibits D E, F, G & H) The minutes also address the issue of the width of the public right-of-way over which the private road, Foxwood Lane, runs. In the November 24, 1992 meeting minutes, "Public Works Director Danielson explained sixty feet (60) is a standard right-of-way width .. " (See Exhibit E, p. 4, paragraph 3) While reading the Planning Commission minutes regarding Foxwood may be seem cumbersome, it is very useful in understanding why the Planning Commission and the City approved the Plat and placed the conditions on said approval. Additionally, it provides the necessary information to understand why the Lutz home is situated in the fashion it is on Foxwood Lot 1/Lutz Property. 3. There are Restrictive Covenants and an Operating Agreement in place between the owners of the Foxwood properties. These covenants were referred to by the Planning Commission at the outset, and were also referred to during similar proceedings before the Planning Commission and City Council in 2003, which involved the Foxwood property owners. As Mr. Anne has pointed out in his letter to the Commission, while we are not requesting that the City enforce the Restrictive Covenants, it is instructive to note two things: first, that the City was interested in the contents of the Covenants when they approved Foxwood, and, second, that allowing any deviation from the Final Foxwood Plat would indeed place the parties to the Covenants in conflict. 4. Lon Lutz was one of the original potential purchasers of property in Foxwood and he was present for many of the Planning Commission meetings in 1992 and 1993. Mr. Lutz relied upon the Resolutions approving the Preliminary and Final Plats and the Restrictive Covenants in his decision-making process regarding his purchase of Foxwood Lot 1 and was diligent about honoring the City's conditions and the Restrictive Covenants in the designing and building our home on Foxwood Lot 1. The Baders' Application for Variance or Alteration to the Foxwood Plat Should be Denied or Dismissed 1. The Baders are applying for a variance that has already been granted and/or for a variance on road that does not even exist. As stated above, Public Works Director Danielson noted during the November 24, 1992 Planning Commission meeting that the standard right-of-way width is sixty feet (60'). That the City later required just a 50 foot right-of-way on the Final Foxwood Plat is indicative of several things. First, there was not enough room to allow for building a home on the Lutz Property if the 0a Planning Application 2012-07, 02-28-2012, Page 49 City was to require a 60 foot right-of-way, the 100 foot setback from the wetlands and just a 30 foot variance for the front yard setback. Second, by requiring just a 50 foot right -of -way, the City has already granted the variance from a 60 to a 50 foot right of way on Foxwood Lane. Third, the allowance for a fifty (50) vs. a sixty(60) foot right -of-way and 30 foot variance for the front yard clearly anticipated that Foxwood Lane would remain a 20 foot private road. Consequently, the Baders' Application for variance should be dismissed as the issue of a variance on Foxwood Lane has already been resolved. 2. The Baders' Application is really a request to change a 20- year old agreement between the City and the Foxwood property owners. Honestly, let's call a spade a spade, as Ms. Thone did in her notice. What the Baders are really requesting in their application is for a change to the Final Foxwood Plat for a continuation of Foxwood Lane and its associated fifty (50) foot right-of-way variance across Foxwood Lot 3. The problem for the Baders is that in its approval of the Final Foxwood Plat and the conditions it placed on such approval, the City made an agreement with the Foxwood property owners and the surrounding neighbors that Foxwood would be limited to 3 lots and that as much of the natural setting would be protected as possible. The City went so far as to require scenic easements and buffers to protect the natural setting. We, the Lutz Property owners, the Aune/Miller Property owners and the Gray Propertyowners all relied on the Final Foxwood Plat, the Restrictive Covenants for Foxwood Properties, and all of the City's associated conditions, in the purchase of our lots and/or building of our homes. We all had and have the expectation that our homes be located in a quiet neighborhood, with limited traffic, and in a beautiful natural setting with an abundance of trees and wildlife. We request that our reliance on the City's decision be honored. 3. Widening Foxwood Lane from the current 20 foot private road to a 30 foot public road with curb and gutter would violate the City's own policies. The Lutz Property is currently thirty (30) feet from the edge of Foxwood Lane. This places it only 14 feet from the western edge of the fifty (50) foot right-of-way and twenty-five (25) feet from the edge of the public street the Baders are proposing. The home is positioned this way in order to satisfy the City's requirement that it be 100 feet back from the wetlands. The only reason the City allowed for the home's proximity to Foxwood Lane is due to the minimal level of traffic that would be on the private road with only 3 lots. The City's required front yard setback for an R -1A home is forty (40) feet and the minimum set- back for any home in Mendota Heights is thirty (30) feet. (See attached Exhibit I: City of Mendota Heights Municipal Code 12-1E-4: R-1 & R -IA One -Family Residential District) If the City allows the Baders to construct a public street over Foxwood Lane, as proposed, the Lutz Property will be closer to the street than any other home in the entire city of Mendota Heights. The road would literally go right through our front yard. Additionally, allowing the extension of Foxwood Lane as a public street would place the Gray Property in violation of the City's Side Yard Setback requirement that a side -yard abutting a street not be less than thirty (3 0) feet. (City of Mendota Heights Municipal Code 12-1E-4: R -IA One -Family Residential District D. 2.). The Western side -yard of the Gray home is only fifteen Planning Application 2012-07, 02-28-2012, Page 50 (15) feet. This is acceptable now, as it does not abut a street, but the Baders' plan would change that. Further, the City 's Zoning requirement regarding Yards and Open Spaces specifically states "if the existing yard or other open space as existing is less than the minimum required, it shall not be further reduced." (See Exhibit J: City of Mendota Heights Municipal Code 12-1D-4 A). Clearly, the Lutz Property already has a variance for a thirty (30) foot setback from the private road. Construction of a public road would decrease that by at least five (5) feet. Consequently, the conversion of Foxwood Lane from a private road to a public street would create violations of the City's own Zoning ordinances. As these setback requirements are necessary to protect the safety and well-being of the property owners, expansion would also create a safety hazard in Foxwood, especially at the Lutz Property. 4. This is about one thing - MONEY There should be no mistake, this entire issue before the Planning Commission is, first and foremost, about money. There is no dispute that the Baders wish to build a development on the back 5 acres of the Bader Delaware property. We certainly do not quarrel with their desire to do so. However; we do -quarrel with any proposal to develop said property at the expense of the other Foxwood Property owners and neighbors. The Baders claim that theexample concept "B" is their preferred concept. It leaves the Bader Delaware property relatively unscathed. The Baders certainly do not want an access road going past their Delaware home because it would decrease the value of their home and interfere with the enjoyment of their property. They certainly do not want the increased traffic from any development going past their Delaware home because it would decrease the value of their home and interfere with the enjoyment of their property. They certainly do not want the mess of a construction project running by their Delaware home for years on end because it would decrease the value of their home and interfere with the enjoyment of their property_ The Baders would prefer that a wider road be put literally across the front yard of the Lutz Property, increased traffic go in front of and alongside the Anne, Gray and Lutz Properties, and years of construction mess and traffic go by the neighbors on Foxwood Lane and diminish the value of and enjoyment of their properties. The Baders would rather destroy an established, quiet and secluded neighborhood for their own profit, than to have to suffer any of the inconvenience or economic hardship of their development on their own Delaware property. As evidenced by the example concepts "A" and "C", the Baders have indicated to all that their consultants recognize that there is feasible access to the back five acres of the Delaware Property through the front five acres. Whether or not the Baders deem this as too expensive to pursue is not and should not be of any consequence to anyone on the Planning Commission. It is not the place of the City of Mendota Heights to be concerned with the economics of any developers' proposed projects as it applies to the developer. That is the sole concern of the developer. It is, however, the responsibility of the City to consider the economic cost of any proposed development on the neighboring properties. 0 Planning Application 2012-07, 02-28-2012, Page 51 The Baders have access to the back 5 acres of their Delaware property without interfering with. There is no question that the Lutz Property would suffer a significant diminution in value should Foxwood Lane be expanded and extended, and I am certain that the Gray and Aune/Miller properties would suffer similar consequences. To be plain, that just wouldn't be fair. Finally, it would be inconsistent with the City's own 2030 Comprehensive Plan. (Exhibit K) On page 59, with reference to the development of "infill sites", the City specifically states that any development should "(a)void access and traffic which unduly burdens just a few properties." I don't know how you could "unduly burden" one property more than requiring the Lutz Property to first build so close to the road and then ask us bear all of the burden of Baders' construction mess for who knows how many years, construction of a public road within 25 feet of our front door, increased traffic through our front yard while all the other homes are nestled in the recesses of the Bader Delaware Property, and the Baders sitting in their home on Delaware turning a deaf ear to all of it. From all of the above, Lon and I believe it is clear that the Baders' application for a variance should be dismissed and/or denied and once and for all put to bed any discussion of altering the approved Final Foxwood Plat. The plat was approved with the understanding by the City, the property owners and the neighbors that Foxwood Lane would only accommodate 3 residences. There is nothing about the neighborhood, Foxwood Lane or Wentworth Avenue that has changed since the time of the approval that should change that understanding. Lon and I thank you sincerely in advance for your service on the Planning Commission and for your time and consideration in this matter. We invite you to visit Foxwood Lane and see the neighborhood for yourself. We are available at any time to answer any questions that you might have. I can be reached on my cell phone at 651-269-3453. Regards, Jennifer Lutz 5 Planning Application 2012-07, 02-28-2012, Page 52 List of Exhibits A. Map of Foxwood and neighboring properties B. Final Foxwood Plat and Resolution approving same. C. March 4, 1993 Letter to Gerald Mazzara outlining conditions of approval of preliminary Foxwood Plat D. Planning Commission Minutes - October 27, 1992 E_ Planning Commission Minutes - November 24, 1992 F. Planning Commission Minutes - December 22, 1992 G. Planning Commission Minutes - February 23, 1993 H. Planning Commission Minutes - March 2, 1993 I. City of Mendota Heights Municipal Code 12-1E-4: RIA One -Family Residential District J. City of Mendota Heights Municipal Code 12-1D-4: Yards and Open Spaces K. City of Mendota Heights 2030 Comprehensive Plan - pp. 58-59 re_ Infill Sites Planning Application 2012-07, 02-28-2012, Page 53 j LLI `._-v - � � -- '=--------- � •\�`� ` �� -� � -__ =fid f '� ! , , r _ i f — \ i - LLJdig ? a y 0 Plahning Application 2012-07, J32-28-2012, Pag& 54 3'e_ t Vig 37 Yec XC N 0 Plahning Application 2012-07, J32-28-2012, Pag& 54 3'e_ t Vig Planning Application 2012-07, 02-28-2012, Page 55 City -of me-11a6ia Meighis [Da:Ka(a, C01,111tv, Miariesol-' R F NO. 93- tJr VL )PLAT FOR _F�SOLTJ ION AYPROWN N' ,)0D P'LAT F -in --fly Somerset Place), has been subn-Citled ,ILI plat fo.- F-()xwood (f6j- io the Council; and WHERE .S, the, CILY Council his mvieweA mid FmJa PleL ,Nj��OW THEREFO -RE rr is --RESOLVED, by the City COI'rcil Of the City of Me 1101glIts,-tinesota-, as fullo`vvs: 1liat the. fWal Plat Of FOxwfIcA submiLted at tl-,lis is be by approved. -rhaj the appiopriate-City vfficiuds be and tbey are hereby authorized to cxexutc tht final plat on behalf of the, City _)ul).c.,il of the City of Mendofa kleights this 7th &_-Ly of Suvtomber, 3.9-93- Adoptt�d by the, City Cc cy,f-y- Cou-No'L 1-foGHTS DOTA .-- �33f -jr-_ Cha)cle-,; P__ '_mertwsotto., . yor ATTEST: Kathleen. M_ Swa-rlsgn City Clerk Planning Application 2012-07, 02-28-2012, Page 56 A,Ak A 2.AAAJ Aendpta He 153951 Slim March 4, 1993 ice-. Gerald Ma szara 480, W St 81st Street, SiFite 101 r1iurleapalis, '�%M $5437 Sear Pte'. mazzara, : I am writing tofoully notify you that tine City Council, at its torch 2, 1993rlteeting, approved your Preliminary Plat for So tercet Place and a thirty fE00t (30') front yard setback variance -for Lot 1. The approvals are as prQpOsed in plavming Case File no 92-31 on the Prel?Tlinary Plat dated February 8, 1993 - The city council placed the followa.D9 c0rl it-iolas oax the approv-al of the � re imi I a.- jat a.nd . tlx3... -"eTxt yard setb_�.c k variance : 1. T I L there be no Wetlands otttl0t- 2- T -hat the Wetlands area, as shotwn, be protlected by a scenic easc-ment that woulfl be Filed Frith the plat - 3 That fii.fty font (�fl') :,-ght-Q` -,7ay bre platted., enc?osina- the pDCivate roadyway- p r That thirty-five foot (35' ) w±de utillt; easement be platted along the eastern boundary- . That twer3ty foci4 (20') 7irit o, pave -d dry veway be installed with the ra-Uht-of-tivay- _ T1Aat the building pad -'ter Lot 1 stay one - (10 Ittf�dred �€rt Q`? tjway fx o r. tri'_ Wetlands. •I_ That. no fut-Irc° wetlands Pee=rs bellowed_ 8 Thai% st�ii~iC Sy dra-i'r1 i�[id5 be ncet to prevent compacrion by ti:a fic during tho copshomes_ 9- Phat access be maint.alned to septic systems to alln*ter frJ.r' puTnL, i. n g . LD- '1'z5<It tl;.e rn ini.rtu,�j z7ir-reage of the J -ors by .7.' if 2 acreS . t!]r devel irT[�rk TiT't_l! the City M -1c.''_ t1`1_e t--T-a1.l ma's ter I)�t3L' 1)as t ec % n�lj=teci. to detA_rTn na is"_ rOt1Q�i the SZt�; If I:tecded_ 0�t o � '"vim � e.,1 i t eights, MN<3 �' �& - ,�j::; 0-4 `=_ 3L.- _nom Planning Application 2012-07, 02-28-2012, Page 57 i,i r a ra page LWO o -f each ho,118irlq ul-tit: be_ a mi,_aimum :Cj,a- t -he basE_,marlt e-1 U - level and "Lbat ,5a -!d -(- - - eeL the high Ater - o F -r.,uT- f be depicted on the plat- basemelaL cle"E11---lons r new 10t, for -, total of IL3_ That a park dedicat-iun. fee Of $-1-50 f)e $2,250 be paid prior to final* plat signatures - be dep-icted Upon thc-- plat- 14- WeLlarlds .Survey Ibuffer be . esLablished along the IS. That all ,cepuable jand:5cape 2- castern bouaaary Of the p,��QpeTtv, as approved by city staff - at for appi7o,,,rai -Zour next �'houjd be tLo prepare a final rj- I will be placed o:0, Council's by -,-he City CG'Uncil. tj-ie approved prelintinzury plat. collsent ag.:��nda if it c0nfOn_�'s w:L bave, to be paid priGr tO the .L $2,250 Contact -firq Rani The VZ1'0,_ ded.icatiO- ce Of - Please Con Dan Cityrs signaLure o --q the final Flat d to ar-r-ange payment of tjic� ar he Filial Plat _111 ivo pl, _r>_)rovaLl ci-, L and determillitiOT! throughout this Th�-.-u-ik y'o, for yo,,ir pati cInce pro tes�--, much 11 - new development? appre-ciated. C_'ci<,�d ],-Lick with Y'Ur S i,r- c e re 1 -,_,F ED pubi ijL, Planning Application 2012-07, 02-28-2012, Page 58 CITY OF MENDOTA HEIGHTS DAIKOTA COUNTY, MINNESOTA PLANNING COMMISSION OCTOBER 27, 1992 The regular meeting of the Mendota Heights Planning Commission was held on Tuesday, October 27, 1992, in the City Hall Council Chambers, 1101 Victoria Curve. The meeting was called to order at 7:30 o'clock P.M. The following members were present: Koll, Friel, Dwyer, Krebsbach, Tilsen_ Commissioners Dreelan and Duggan were excused. Also present were Public Works Director Jim Danielson, Planning Consultant John Uban, Administrative Assistant Kevin Batchelder and Senior Secretary Kim Blaeser. APPROVAL OF MINUTES AYES: 4 NAYS: 0 ABSTAIN: AYES: 4 NAYS: 0 ABSTAIN: HEARING: f CASE NO. MAZZARA - SOMERSET Commissioner Tilsen moved approval of the September 22, 1992, Minutes. Commissioner Koll seconded the motion. 1, FRIEL Commissioner 1992, Joint Minutes_ Commissioner 1, FRIEL 92-31: PLACE PUD Tilsen moved approval of the September 29, City Council/Planning Commission Workshop Koll seconded the motion_ Chair Dwyer briefly explained that the applicant, Mr. Gerald Mazzara, had been before the Planning Commission on September 22, 1992 with a preapplication discussion of the Somerset Place Planned Unit Development (PUD)_ He stated the applicant is proposing to subdivide a 10 acre parcel into three single family lots with a common outlot designated as Wetlands. Mr. Gerald Mazzara, representing both the owner and buyer, was present to discuss the proposed PUD_ He explained he held a meeting with the adjacent neighbors about two weeks prior to the Planning Commission to discuss the proposal_ Planning Application 2012-07, 02-28-2012, Page 59 October 27, 1992 Page 3 would be inclined to not recommend approval of the request if the wetlands are further encroached upon. Mr. Mazzara responded if the Planning Commission recommends approval, he would be willing to have the wetlands reviewed by a biologist. Commissioner Krebsbach inquired if the proposed septic system is adequate for the size of lots proposed. She inquired as to what Dakota County's standards are. She further noted her concerns for the amount of grading which will occur for this development. Mr. Mazzara responded City staff has reviewed the grading plans and there seems to be no problem. He further stated he feels confident that the size of lots for the septic systems is adequate. He stated he would be willing to validate his confidence with Dakota County. Planner Uban stated he would like to see refinement of both the grading and septic field plans. Chair Dwyer stated the integrity of the wetlands is a real concern and maybe a scenic easement could be agreed upon with the ultimate buyers of the property. Planner Uban responded a scenic easement could be done within the PUD. He stated there are several elements related to this plan which are sensitive. Mr. Mazzara stated he has no problem with helping define the wetlands area. Commissioner Friel stated his concerns for the use of private roads in this area. He stated most private roads are not maintained properly and there could be public safety access problems. He noted the inconsistency in the proposed right-of-way on the plans and what is actually required within the Subdivision Ordinance_ Commissioner Friel stated the Subdivision Ordinance requires a thirty foot right-of-way and the proposed development indicates a twenty foot right-of-way. Mr. Mazzara responded he was not aware of the restriction. He further stated the proposed road width was determined based on preserving the evergreens in the area. He stated they can do a thirty foot right-of-way. In response to a question from Commissioner Friel, Chair Dwyer stated there is no sanitary sewer service available. Mr. Mazzara stated there will be well service on site. Commissioner Koll stated she has concerns for drainage and the location of septic systems next to the wetlands. She further stated the Fire Marshal should be given an opportunity to review and approve road access. She Planning Application 2012-07, 02-28-2012, Page 60 October 27, 1992 Page 5 Mr_ Mazzara reviewed Plan A which represented a loop road with 19 lots; Plan B showing two acre lots giving plenty of room for on site septic systems and road access off of Marie exiting onto Delaware Avenue; Plan C showing another loop concept with 9 large lots; -Plan D showing -,a 700 foot cul--de-sac and Plan E showing an enhanced cul- de-sac with a larger turn around_ He reiterated to the Commission and property owners present at the meeting that these plans are all just ideas. Chair Dwyer stated the concept plans, as proposed by Mr.. Mazzara, seemed to implicate the Bradford property. Mr. Mazzara responded it seemed the Bradford's may have a future interest in developing their land and he was only trying to accommodate their plans for the future_ He stated he prepared these plans based on what he had heard and discussed at the meeting held two weeks. Mr. Bradford stated the City has been given ideas in the past for development of property in the superblock and the ideas were not. acted upon. He further stated the proposed concept plans Mr. Mazzara presented tonight reflect no consultation time with him. Commissioner Krebsbach inquired what feelings were generated for the construction of a public road through the property at the neighborhood meeting. Mr. Garrett responded no one wants a road through the property. Ted Weyerhaeuser, 610 Wentworth Avenue, stated he owns 10 acres of land within the superblock area. He stated he is against having any roads constructed through this area. He stated his land is low and good for wildlife - In response to a question from Commissioner Friel, Mr_ Mazzara stated the proposed plan submitted for review is intended to be a preliminary plat. Mr. Mazzara stated his concerns for public right-of-way of 60 feet stating tree preservation is an issue. He stated the private road is a part of the preliminary plat and with this concept, the Garrett property is protected from significant traffic. Commissioner Tilsen stated the private road concept is acceptable. He stated wetland encroachment is a concern. He reiterated is concerns for placement of the wetlands as submitted on the plans by Mr. Mazzara. He further stated private sewer systems are fine, if they are considered temporary. He stated he would like to consider another way of handling the sewer system due to Planning Application 2012-07, 02-28-2012, Page 61 October 27, 1992 Page 7 the convenants. He further suggested research in providing public access be done: Commissioner Krebsbach moved to continue the public _hearing until November 24, 1.992 at 7:.30 o'clock P. -M. Commissioner Friel seconded the motion. Mr..Mazzara stated a soil borings test was completed for this property. He stated there is a time problem in that the sale of the property is conditioned on the approval of this request. He stated if required, the trail system will be done. He further stated that normally the convenants are reviewed at the time of the final plat process. He stated they are trying to avoid the public right-of-way and he will provide and sanitary sewer easement. Mr. Garrett stated he objects to the required 60 foot public right-of-way in that many trees will be lost and that it -will- diminish. property values ..significantly.. Mr. Mazzara stated the neighbors in the area are happy with the proposal and does not understand why there are so many objections from the Planning Commission_. Commissioner Friel responded the Planning Commission enforces the City's Zoning Ordinance and is only trying to abide by the requirements of the Ordinance. He stated the Planning Commission is not in the position of carrying out recommendations not based on the Zoning Ordinance. Mr. Thomas Hu, potential buyer of the property in question, stated he feels they are trying to provide the neighborhood with a well designed project that will blend in. Alice Bradford, 1673 Delaware Avenue, stated she owns five acres of land next to the proposed subdivision. She stated if the City plans to put a road through it would help her land_ She stated if a road comes through the side of the land to Delaware it will be very steep. She further stated a road in between the houses is not a good idea and she is not in favor of the project. VOTE ON THE MOTION:._ AYES: 3 NAYS: 2, ROLL, DWYER Planning Application 2012-07, 02-28-2012, Page 62 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY, MINNESOTA PLANNING COMMISSION MINUTES NOVEMBER 24, 1992 The regular meeting of the Mendota Heights Planning Commission was held on Tuesday, November 24, 1992, in the City Hall Council Chambers, 1101 Victoria Curve. The meeting was called to order at 7:33 o'clock P.M. The following members were. present: Koll, Friel, Dreelan, Dwyer, Krebsbach, Duggan and Tilsen. Also present were Public Works Director Jim Danielson, Planning Consultant Tana Peterson -Sisley, Administrative Assistant Kevin Batchelder and Senior Secretary Kim Blaeser_ APPROVAL OF MINUTES Commissioner Koll moved to approve the October 27, 1992, Minutes Commissioner Krebsbach seconded the motion. AYES: 5 NAYS: - 0 ABSTAIN: 2, DREELAN, DUGGAN CONTINUED HEARING.-: CASE NO. 92-31:. 01 MAZZARA - SOMERSET PUD Chai-r•'Dwyer gave a brief summary of the October 24th PldhiiinCommission meeting and explained the Commission had c'dntinued the public hearing until their November meeting to allow Mr. Mazzara sufficient time in preparing additional information on soil tests, septic system design,'.. wetlands boundaries, trail easements, public right 'f -way and private covenants_ Chair Dwyer stated Commissioner Friel had phoned him during.the day regarding criteria for PUD's as stated within the Zoning Ordinance. Commissioner Friel quoted an e.xcerpt from Section 22.1, that a Planned Unit Development. shall be defined as any project utilizing ten or.niore acres of contiguous land wherein there is (a) more than, one principal building per lot, or (b) more than one use per lot. Commissioner Friel stated the requested PUD meets the criteria for a project utilizing ten or more acres but that the request does not meet the requirements for more than one principal building per lot ore more than one use per lot_ Commissioner Friel inquired as to why the applicant has been proceeding with Planning Application 2012-07, 02-28-2012, Page 63 November 24, 1992 Page 3 - briefly explained the proposed septic areas stating 10,000 square feet of land would be used which would allow enough room for two drainage fields per lot. Public Works Director Danielson informed the Commission that the area needed for septic systems depends upon the type of soil. There was a brief discussion regarding the water level table as indicated on the plans at 12 1/2 feet. Mr. Mazzara explained there are different ways of rating soils when constructing a drainage field system and the development of homes. He explained Lots 2 and 3 will need the construction of a mound system to help correct the soil conditions for the drainage fields_ Chair Dwyer noted the soil reports, as submitted, were done 17 years ago. Mr. Mazzara stated the soil conditions have not changed. Commissioner Tilsen -stated it appears that the water table is close to the elevation of the wetlands. He further stated a septic system can be within four feet of the water level. He further noted his concerns for long term reliability of septic systems constructed close to the wetlands_ He wondered if people are educated in environmental issues regarding the use of septic systems and the potential hazards of those systems next to wetlands_ Mr. Mazzara stated that one system per lot is mandatory and that they are planning for double capacity systems for each site. In response to a question from Chair Dwyer, Mr. Mazzara explained the soil boring tests. He noted the test indicates that Lots 1, 2 and 4 is sand and Lot 3 is peat. Chair Dwyer responded there seems to be large gaps of knowledge regarding the soil borings and stated the Planning Commission is at a disadvantage in determining the veracity of information. In response to a question from Commissioner Krebsbach, Mr. Mazzara stated the building envelopes are 100' by 150'. In response to a question from Commissioner Dreelan, Mr. Mazzara stated trail easements are not shown on the plans as he has indicated he will provide the private easements as soon as he is told where it is appropriate. Mr. Mazzara stated private streets are preferred and that a dedication of utility easements of thirty feet (301) would be adequate. Commissioner Friel responded he is unpersuaded that a sixty foot (60') public right-of-way Planning Application 2012-07, 02-28-2012, Page 64 November 24, 1992 Page 5 compatible with the land and that the City should not ask for anything less of other builders. She stated the City needs clear guidelines for future property owners. She further- submitted_ a.. vetition._to -the Planning- Commission noting the area residents do not want a public road and public right-of-way. She stated they would like to see a twenty foot (20') private easement on this particular case. She further stated the would like to see a minimum of 2 1/2 acres provided for septic systems and no more than 40 percent tree removal for all development in this area. She further stated a height limitation of thirty feet (301) should be placed on the homes constructed in the area. Mr. Garrett, 540 Wentworth Avenue, stated their concerns for public roads is safety. He stated a public road entering on Wentworth Avenue would be dangerous. He stated an easement for public roads in the future is very disturbing - Ted Weyerhaueser, 610 Wentworth Avenue, stated he supports the PUD proposal and he would like to see a better definition of the wetlands in the area. Jack Sjoholm, 1611 Delaware Avenue, stated he supports the petition as submitted and that he wants to see the character of the neighborhood preserved. Commissioner ` Krebsbach- nqu=fired .; if the -potential:: buyers of they Harris property would' cons.der '-r .1b ittang.. a :r�ew proposal showing two homes,n.st;ead of --three. Mr. Mazzara responded economics necessitate that three lots be developed. He further stated 2 1/2 acres.per parcel can be done if the wetlands outlot was excluded. Commissioner Duggan stated that preserving the character of the neighborhood would be done if only two lots would be developed not three. Chair Dwyer stated that any construction of a house on the property will change the character of the land. He stated the Planning Commission cannot recommend approval given the lack of environmental information_ He further stated City staff has not been given the information necessary to adequately_ inform the Planning Commission in forming a recommendation to the City Council. He stated this request .is a significant issue to the neighbors and City. Commissioner Friel stated he is not interested in a public right-of-way through Marie Avenue. He further stated the City's ordinances have to be followed. He Planning Application 2012-07, 02-28-2012, Page 65 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY, MINNESOTA PLAIINING COMMISSION MINUTES "DECEMBER 22, 1992 The regular meeting of the Mendota Heights Planning Commission was held on Tuesday, December 22, 1992, in the City Hall Council Chambers, 1101 Victoria Curve. The meeting was called to order at 7:30 o'clock P.M. The- following members were present: Koll, Friel, Dreelan, Dwyer, Krebsbach and Tilsen. Commissioner Duggan was excused. Also present were Public Works Director Jim Danielson, Planning Consultant John Ubarn=and Senior Secretary Kim Blaeser. APPROVAL OF MINUTES Commissioner Minutes. Commissioner Friel: moved to approve the November 24, 1992 Krebsbach seconded the motion. AYES: 6 NAYS: 0 (.;CONTINUED HEARING CASE NO. 92-31: MAZZARA SOMERSET PLACE.: PUD Chair Dex: opener -'t'h= meeCirig -explaining that Mr. Gerald Mazzarass,;;_ popoal '.._cr ._a_:° three 'lot, 10 acre'residential- Planned. residential - Planned, Unit; Developiriet' has' been before _ . the :.. Planning . Commission :a.;ntimber _of ..times._; He stated at the November Planning Conunis pn:`meting: Mr.:.Mazzara was instructed- to refine his plans .:arid -th t City .staff was to receive a legal opinion;-: from . th2_ .;C;ty =Attorney's office, regarding the process o .pars Yg a planried:uriit development for this site. Chair Dwyer-- stated .`tiie` PlI:Oning-`Commission has received the legal opinion aria. t11a�_'` C6irmissioner Friel has. asked for an opportunity to 'add_ress =_the opinion, _ Commissioner Friel stated°he ques'tions-the�process of pursing the planned ura-t:developmeht�_ He stated the language within the Zoning ordinance is,ambiguous. Commissioner Friel pr. ds-_hte'd .the.' following comments to the Planning Commissi:on:`` "I am not persuaded by tYie," opinion of Counsel which we have receiti-'d I: have seldom read a document that indulged in -such tortured reasoning to reach its F x _�l�ta% Planning Application 2012-07, 02-28-2012, Page 66 December 22, 1992 Page 3 "The question before this Planning Commission is whether we are going to apply the plain language of our Ordinance and let the law be master, or whether we are going to make a mockery of the Ordinance by ignoring it and ..substituting the ad hoc judgment of this Commission". Commissioner Friel concluded by saying: "Under the circumstance, I cannot vote for this as a Planned Unit Development even though I believe, with the exception of the private roadway, that it is just the kind of development. of that land whichw.e want. I cannot do so because by any analysis this is not a Planned Unit Development". Chair Dwyer stated the Commission has received comments from .the Fire Chief. He explained it is the opinion of the Fire Chief that the private; driveway::,.should:%..be :.twenty. -.f our... feet (24') wide to accommodate fire vehicles. Mr. Mazzara responded he would accommodate the twenty-four foot wide drive but that presently, the proposal does exceed the turnaround radius required. Chair .Dwyer further questioned, as per the Fire Chief concerns, if sprinkler systems would be installed. Mr_ Mazzara responded that would be a tough requirement to adhere to. Chair Dwyer further questioned if the roadway would be maintained year round and that no parking be allowed along the roadway. Mr. Mazzara responded that these conditions would be acceptable. Chair Dwyer, as per the Fire Chief's comments, questioned if addresses will be properly signed_ Mr. Mazzara responded the addresses will be prop.erly marked. Mr. Mazzara stated he has now submitted a detailed and accurate wetlands survey. He stated there is no need for a wetlands permit as th.:..:ere_. will be .no structure within. one :.... hundred..f eet_,.(l.QQ')-.of the, wetlands_ Chair Dwyer stated that the City's certified septic system inspector, Russ Wahl, has reviewed the proposed designs, as submitted, and finds them to be in compliance and well designed. Chair Dwyer stated that Mr. Wahl suggests that the drain field areas be fenced and posted during construction to prevent vehicles from compacting the drain field_ areas. Mr. Mazzara responded the area will be snow fenced. Chair Dwyer inquired if Mr. Mazzara will be willing to provide a thirty-five foot utility easement along the east boundary line to accommodate future City sewer/water. Mr. Mazzara responded favorably. Planning Application 2012-07, 02-28-2012, Page 67 - December 22, 1992 Page 5 the City look at preserving the openness of the superblock area by designating park land. Commissioner Dreelan noted her concerns for the lack of information regarding tree removal and destruction. Mr. Mazzara responded he does not intend to destroy trees. He stated that trees will be removed and replanted and that extensive landscaping will be conducted. Commissioner Dreelan further noted her concerns for driveway width. Mr. Mazzara responded he will abide by the Fire Department's recommendations. In response to a question from Commissioner Friel, Mr. Mazzara stated a good percentage of trees can be saved. He further stated the septic lines can be maneuvered through tree root lines underground. He further stated vegetation will be removed for building pads. In response to a question from Commissioner Friel, Planner Uban stated he has not calculated the.percentage of vegetation that will be removed due to building pad, septic system and driveway access construction. In response to a question from Commissioner Friel regarding water ?'unoff to the wetlands, Public Works Director Danielson stated the area runoff does not run to the Ivy Falls area. Commissioner Friel inquired if there would be a problem should a private street be approved for this subdivision and the adjoining neighbors, the Garretts, decide to subdivide, would access be a problem. Mr. Garrett responded that at this time, there are no plans to subdivide. He further stated his septic system is located on the front of their property. Commissioner Koll noted her concerns regarding water runoff should there be a 200 year rain. She questioned if there will be sump pumps. Mr. Mazzara responded with water table elevations and stated there should not be a problem. He explained the soil varies from lot to lot, but in general, there is a silty sand. He stated perk tests have been completed for the septic systems. He stated the test indicate the soil perks well in this area and that a drain field will be appropriate rather than a mound system. Commissioner Koll inquired if the surface water drainage system will be sufficient to carry a deluge of water. Public Works Director Danielson responded it would. Commissioner Koll stated she does not want to see pools constructed as it could cause an infringement with the wetlands due to chemicals used, etc. Mr. Mazzara stated he Planning Application 2012-07, 02-28-2012, Page 68 February 23, 1993 Page 7 2. That an appropriate turnaround be provided 'on the Cellular One site for public safety needs. 3. That landscaping be completed as per the landscaping plan submitted..and dated February 23, 1993. 4. That the following City Planner recommendations be complied with: a. All activities which create electrical emissions shall comply with the minimum requirements of the Federal Communications Commission. b. Confirm in writing that the facility does not conflict with the operation of CDI. C. The facility should only be used for the transmission of cellular phone conversations. Additional antenna requests would have to go through an amendment of the Conditional Use Permit. d. Street lighting to be installed to provide safe ingress and egress on the private road. S. That the tower height be limited to seventy-five feet (75') . Commissioner Dreelan seconded the motion. AYES: 7 NAYS: 0 r - HEARING: CASE NO. 92-31: \ MAZZARA - SUBDIVISION - SOMERSET PLACE Chair Dwyer explained that Mr. Mazzara appeared before the September, October, November and December Planning Commission_ meetings to present a proposal to develop a three lot, 10 acre single family development as a Planned Unit Development. He explained the Planning Commission had previously recommended approval of the development with conditions. He further explained the City Council had reviewed the proposal in January and desired to approve the plan as recommended, but that they directed the developer to process a preliminary plat instead of a Planned Unit Development. Chair Dwyer explained that because City Council felt this preliminary plat represented significant changes, they ordered that a public hearing be held at the Planning Commission. n 5 t i,y�t JIn Planning Application 2012-07, 02-28-2012, Page 69 February 23, 1993 Page 9 the area. Mr. Mazzara stated he can also appreciate the concerns of the neighborhood residents but that the three homeowners would like to retain some rights to the land. Chair Dwyer added that if this were a Planned Unit Development, the -.City .could the dictate the type of housing ----....- within this development. Chair Dwyer opened the meeting to the public. Chair Dwyer read a letter as submitted by Thomas and Linda Garrett of 540 Wentworth Avenue. He informed the Commission and audience, as per the Garrett°s letter, that their position is that the property not be divided into more than two homesites. He noted the Garrett°s concerns for the wetlands and wildlife. He stated that Garretts are concerned that the character of the properties in this area would be severely compromised with the building of three home, together with the septic system land usage. He further stated the Garrett°s have stated that entry onto Wentworth Avenue is already very dangerous and ---that it can support --very little additional...___....._ traffic. Mr. Derauf, 600 Wentworth Avenue, inquired as to why the development is now considered a Subdivision and not a Planned Unit Development and if the wetlands isincluded in determining the acreage of each lot. Chair Dwyer stated that interpretation of the Zoning Ordinance dictated that this development be considered as a Subdivision and not a Planned Unit Development. He further stated the Wetlands is a part of the acreage calculation for each lot and that wetlands setbacks will be adhered to. Public Works Director Danielson stated that Dakota County is just completing their aerial survey of the area and will be submitting them to the City soon. In response to a question from Commissioner Koll, Mr. Mazzara stated the straw bale barriers, as indicated on the plans, are placed for erosion control. Commissioner Koll commended Mr. Mazzara on the placement of the homes and driveway. She inquired to how many trees will be removed. Mr. Mazzara responded that they plan on moving the trees by way of machines and that they do not expect to lose too many trees. Chair Dwyer asked the developer to explain why he is proposing three homes and not two homes. Mr. Mazzara explained that the proposed development will have little impact on the site. He stated numerous studies have been completed on the site with relation to the wetlands, septic systems and building pads. He stated that they have taken a very sensitive approach in the natural environment. Planning Application 2012-07, 02-28-2012, Page 70 February 23, 1993 Page 11 8. That septic system drainfields be fenced to prevent compaction by traffic during the construction of homes. 9. That access be maintained to septic systems to allow for pumping. c 10 _ That 'the' minimum acreage. of the lots be 2 1 f 2 ae_res:�, 11. That the developer work with the City once the trail master plan has been completed to determine a trail through the site if needed. Chair Dwyer seconded the motion. AYES: 7 NAYS: 0 Chair Dwyer called a recess at 9:43 o'clock P.M. Chair Dwyer reconvened the meeting at 9:55 o'clock P.M. HEARING: CASE NO. 93-04: SIGN ART - SIGN SETBACK VARIANCE Mr. Kevin Snyder, manager of Sign Arty was present to discuss his request to place a monument sign that is seven feet by ten feet (71x10') in the front yard along Dodd Road with a zero foot setback_ Mr. Snyder stated that he has reviewed Planner Uban's planning report and that he agrees with Planner Uban's comments and suggestions. Chair Dwyer stated that a sign could be constructed without a variance but that shrubbery would need to be removed if the sign were to be placed at the normal setback requirement. Commissioner Friel stated that he disagrees with the square footage calculations for the existing and proposed signs as computed by Planner U -ban and staff. He stated that the entire awning area of the existing signs should be included in the square foot calculations, not just to within six inches (611) of the letters. He stated that the entire area of the proposed sign should be used for sign area calculations and not just to within six inches (611) of the letters. Mr. Snyder stated the background and edge of sign will not be illuminated. Commissioner Friel responded that whether the sign is illuminated or not it is still an attraction. Mr. Snyder stated the sign is proposed to sit perpendicular to Dodd Road. CASE NO. MAZZARA 92-31, Planning Application 2012-07, 02-28-2012, Page 71 Page No. 3552 March- =2, 1993 Council acknowledged a report from Public Works Director Danielson regarding a proposed preliminary plat from Gerald Mazzara for the development of a three lot subdivision located south of Wentworth Avenue, approximately 800 feet west of Delaware Avenue. The developer had originally submitted an application for planned unit development for the property but had been directed by Council on January 19th to process the development as a subdivision rather than as a PUD. Mr. Gerald Mazzara, from Architectural Forum, was present to represent the property's buyer and seller. Mayor Mertensotto pointed out that there was no reference to the park contribution in the conditions recommended by the Planning Commission. He also stated that the high water elevation should be shown on the plat and that minimum basement elevations of 4 feet above the high water mark should also be shown. He also suggested that the wetlands boundaries be recorded on the plat. Mr. Mazzara stated that he understands that a $2,250 park contribution is required and that he agrees to the requirement. He also agreed to showing the high water elevations on the plat and to the minimum 4 foot basement elevation. He informed Council that he believes the lowest basement elevation on the building pads is seven feet above the high water mark. Mr. Mazzara agreed to recording the wetlands boundaries on the plat. Responding to a question from Councilmember Smith, Mr. Mazzara stated that the lot line between Lots 1 and 2 has been moved slightly so that all of the lots are 2.5 acres in size. Councilmember Krebsbach asked if more effort can be made to provide an evergreen barrier along the lot line adjacent to the Garrett property, and particularly along the drive. 'IMr. Mazzara stated that he added a .3,53 foot. scenac77easeme e o ine for the ben o e arre s an a e wi��ll work wit _, e::.Garr-et-ts to,.,., evelop- an acceptable lan.ds,cape:,_ buffer. Public Works Director Danielson stated that resolutions are normally prepared for final plats and that the resolution for the Somerset y f I P VA ;y 12-1 E-4: R-1 A ONE—FAMILYa RESIDiENTIAIL2DISTftlCT: A. Permitted Uses: Within the R-1 A one -family residential district, no land or structures shall be used except for one or more of the following uses: Any use permitted and regulated within subsection 12-1 E -3A of this article. B. Conditional Uses: Within any R -1A one -family residential district, no structure or land shall be used for the following uses except by conditional use permit: Any use permitted in subsection 12-1 E-313of this article and as regulated herein. C. Permitted Accessory Uses: Within any R -1A one -family residential district, the following uses . shall be permitted accessory uses: Any use permitted in subsection 12-1 E -3C of this article and as regulated herein. D. Site And Structure Requirements: 1. Structure Height: No structure or building shall exceed three (3) stories or thirty five feet (35') in height, whichever is the lesser, except as provided in section 12-1 D-13-1 of this chapter. 2. Side Yards Abutting A Street: A side yard abutting a street shall not be less than thirty feet (30') in width. 3. Minimum Requirements: a. The following minimum requirements shall be observed subject to the additional requirements, exceptions and modifications set forth in this section and section 12-1 D- 13-1 of this chapter: v. tPrfinncnrlifiPr. rom/rndPhnnkitndpy.nhn?hnok id-RRR it j �I Side Yard Rear Yard 15' or 1/2 the height of the 30' or 20% of the structure contiguous to the average lot depth, side yard, whichever is i whichever is greater greater I 112 Lot ( Froi Lot i Width Yar Height Area i E 3 story 30,000 125' ; 40' maximum sq. ft. v. tPrfinncnrlifiPr. rom/rndPhnnkitndpy.nhn?hnok id-RRR it j �I Side Yard Rear Yard 15' or 1/2 the height of the 30' or 20% of the structure contiguous to the average lot depth, side yard, whichever is i whichever is greater greater I 112 12-1 D-4: YARDS AND ®PEN SPAPAI Application 2012-07,02-28-2012, Page 73 Minimum Yards And Open Spaces: No yard -or other open space shalt be reduced in area or dimension so as to make such yard or other open space less than the minimum required by this chapter, and if the existing yard or other open space as existing is less than the minimum required, it shall not be further reduced. B. Satisfying Requirements For Other Buildings Prohibited: No required yard or other open space allocated to a building or dwelling group shall be used to satisfy yard, other open spaces, or minimum lot area requirements for-, any other building. C. Allowed Encroachments: The following shall not be considered to be encroachments on yard and setback requirements: 1. All yards: a. Belt courses, leaders, sills, pilasters, lintels, ornamental features, cornices, eaves and the like, provided they do not extend more than one and one-half feet (11/2') into a yard. b. Yard lights and nameplate signs for one- and two-family dwellings in the R-1, R -1A and R-2 districts may be located to within five feet (5) of the front lot line. c. Uncovered and/or open terraces, steps, porches or decks, accessibility ramps, stoops or similar structures, which do not extend above the height of the ground floor level of the principal building and do not extend closer than two feet (2) from any lot line. d. Accessory structures; except, that no accessory structure shall be closer than five feet (5') from any side or rear lot line, or within any front yard; except, that where an accessory structure exceeds one hundred forty four (144) square feet, it shall not be closer than ten feet (10'). See figure 1 D-4.1 of this section. FIGURE 1 D-4.1: ACCESSORY BUILDING SETBACK REQUIREMENTS n, ctorlinn—difir rc "M/IndnhnnkTI—ioV nhn9hnnk 'r'—SRR Planning Application 2012-07 02SFg12ll - HREE: LAAfD USE PLAN, being B-4 Shiopping Center. There may be the potential to expand the sites with unused Mn/Dot right-of-way, which lies south of Highway 110, and east of Dodd Road. The site is designated and zoned Mixed -Use PUD_ Redevelopment efforts for this corner seek to accomplish a mixed-use residential/commercial/retail service area designed with "village character" that is compatible with existing residential land use characteristics found --in Mendota Heights. - — The City identified several goals for the redevelopment of this property. They include: Preservation of open space and existing wetlands Inclusion of significant opportunities for housing into the project area High quality architecture and building materials reflective of that used in the Village project Clustered, urban design Primary pedestrian emphasis Improve pedestrian crossing of Highway 110 Elimination of the "strip -mall" look of the existing building Views of the project emphasizing buildings and open space, rather than parking lots Future Land Use Designation: MU -PUD, Mixed Use -PUD Only (including business and medium/high density residential). Furlong District: This area of the community is located between Le May Lake and Highway 55. Although it is impacted by exposure to Highway 55 traffic and aircraft noise from the international airport, residents of this area have previously chosen to retain their existing single family character and land use designation. No change is proposed for this area in land use designation, although some redevelopment of the larger residential parcels may occur with adequate street construction and access. Future Land Use: B, Business and LR, Low Density Residential Infill Sites: For the purposes of this section "Infill sites" are meant to be any property in Mendota Heights that has the opportunity to develop, or redevelop, beyond its current level. Because these properties tend to be smaller and surrounded by established neighborhoods, development would have the potential to dramatically change the environment of the areas in which they are located. Neighbors often raise concerns over increased traffic, loss of open space, potential drainage issues, and other problems that may result from development of these areas. e City of Mendota Heights 2030 ComprehensiveF16h .5R Planning Application 2012-07 OzQ01`P2de�",�REE: LAND USE PLAN & The City recently inventoried the remaining developable land within the: community; with the objective of understanding the capacity for new development, and creating policies for consideration of development in these sensitive areas. These policies include the following: Require that any new development or redevelopment meets all zoning and -subdivision regulations. Avoid access and traffic which unduly burdens just a few properties. Ensure that development of infill sites will not result in any negative impact on existing environmental conditions, such as soils, wetlands, drainage, or similar factors. Require that all development of infill sites provide access to a public street, new or existing. Ensure that land uses are compatible with the surrounding neighborhood, and do not reflect a "spot -zoning" pattern. Avoid infill development that relies on private street or "flag -lot" design. Future Land Use: Varies bV Location. City of Mendota Heights 2030 Comprehensive Plan 59 Planning Application 2012-07, 02-28-2012, Page 76 Michael M. Bader Michelle K. Bader 1673 Delaware Avenue Mendota Heights, Minnesota 55118 (651)287-2028 February 22, 2012 E-MAIL AND U.S. MAIL Mr. Jake Sedlacek Assistant to the City Administrator City of Mendota Heights 1101 Victoria£urve Mendota Heights, MN 55118 RE: 1673 Delaware Avenue Mendota Heights, MN 55118 PIN No: 27-02400-010-76 Lot 3, Foxwood PIN No.: 27-27620-030-01 Dear Mr. Sedlacek: As I advised, I will be out of town until late Monday, February 27, 2012. If there is something you require from me, you can reach me on my cell at 612-865-1845, or by e-mail. Paul McGinley of Loucks & Associates will attend the Planning Commission hearing with me and is also a source for any information you may need. I also request that he be copied on any city correspondence. His phone number is 763-424-5505. His e-mail address is pmcginleyQloucksassociates.com and his address is 7200 Hemlock Lane, Suite 300 Minneapolis, MN 55369. Finally, I am hearing talk of restrictive covenants that some of our neighbors feel may have bearing on our proposed development. This was an issue the last time as well. I recall the then city attorney, Mr. Schleck, correctly advised.that neither the Planning Commission nor the Council should consider the validity or invalidity of any purported restrictive covenants. Planning Application 2012-07, 02-28-2012, Page 77 Mr, Jake Sedlacek Page Two February 22, 2012 I attach a copy of Odell v. City of'Eagan, 348 N.W.2d 792. At page 6 , the Court states: The restrictive covenants are private matters to be resolved by the parties to the covenant; and not the city. Aesthetic considerations are generally not a sufficient basis alone. See White Bear, 324 N.W.2d at 177-78. Nor is neighborhood opposition. Northwestern College, 281 N.W.2d at 869- I might add if those restrictive covenants were construed as some of our neighbors are apparently arguing the utilities easement across Lot 3 may as well be vacated as the interpretation advanced by some neighbors would prevent the installation of utilities along that easement on Lot 3. V ,truly yours, Michael M. Bader MMB:shh Enclosure cc: Paul McGinley (E -Mail Only) Planning Application 2012-07, 02-28-2012, Page 78 Westlaw Page 2 of 11 FOR EDUCATIONAL USE ONLY Page 1 348 N.W.2d 792 (Cite as: 348 N.W.2d 792) C (Formerly 4141701) Court of Appeals of Minnesota. In reviewing zoning decisions of local govern - David R. and Patricia B. ODELL, Appellants, ing bodies, the Court of Appeals makes an inde- y• pendent examination of the record to reach its own CITY OF EAGAN, Minnesota, Respondent. conclusions, with no special deference granted to trial court's findings. No, C8-83-1623. May 8, 1984. Landowners, whose application for a waiver of plat and whose subsequent application for prelimin- ary plat approval had been denied by city, brought declaratory judgment action The District Court, Dakota County, M, Eugene Atkins, J., dismissed the action and denied landowners' motion for amended findings, and landowners appealed. The Court of Appeals, Huspeni, J., held that: (1) garage was a nonconforming structure and not a noncon- forming use of zoning ordinance requiring a 30 -foot side yard setback from public streets and, therefore, retained its protective status pursuant to a grand- father clause even after creation of a new lot out of property on which it was located; (2) denial of landowners' application for preliminarly plat ap- proval, which met all subdivision zoning require- ments, was unreasonable; and (3) landowners were not denied due process in the decision-making pro- cess or deprived of their property without due pro- cess of law and, therefore, were not entitled to at- torney fees or damages pursuant to federal statute allowing an action for enforcement of civil rights. Reversed and remanded. West Headnotes III Zoning and Planning 41401695 414 Zoning and Planning 414X Judicial Review or Relief' 414X(C) Scope of'Review 414X(0)4 Questions of Fact 414k1695 k. Extent of review in gener- al. Most Cited Cases X21 Zoning and Planning 414 0=1631 414 "Zoning and Planning 414X Judicial Review or Relief 414X(C) Scope of'Review 414X(C)l In General 414k1627 Arbitrary, Capricious, or Unreasonable Action 414k1631 k. Decisions of boards or officers in general. Most Cited Cases (Formerly 414k610) Goal of review of zoning decisions of local governing bodies is to determine whether the muni- cipality's action was reasonable. 131 Zoning and Planning 414 X1036 414 Zoning and Planning 41411 Validity of Zoning Regulations 41411(A) In General 41411036 k. Reasonableness in general. Most Cited Cases (Formerly 414k21.5) Reasonableness of a local municipality's zon- ing decision is measured by standards in the local ordinance, not the state statutes. [41 Zoning and Planning 414 01048 414 Zoning and Planning 41411 Validity of Zoning Regulations 4141I(A) In General 414k].048 k. Discrimination. Most Cited Cases (Formerly 414134) Municipalities are constitutionally required to treat similarly situated people alike in applying standards contained in local zoning ordinances. © 2012 Thomson Reuters. No Claim to Ori-, US Gov. Works. https://web2.westlaw.com/print/printstream.aspx?vi=2.0&int=59&destination=atp&prft=H... 2/221/2012 Planning Application 2012-07, 02-28-2012, Page 79 FOR EDUCATIONAL USE ONLY 348 N.W.2d 792 (Cite as: 348 N.W.2d 792) 151 Zoning and Planning 414 01624 414 Zoning and Planning 414.X Judicial Review or Relief 414X(C) Scope of Review 414X(C)l In General 414k1624 k. Decisions of boards or of- ficers in general_ Most Cited Cases (Formerly 4141<605) If' reasons for a local municipality's zoning de- cision are given, reviewing court examines the re- cord to see if the reasons are legally sufficient and have a factual basis 161 Zoning and Planning 414 C=1594 414 Zoning and Planning 414X Judicial Review or Relief 414X(A) In General 414k1594 k_ Record. Most Cited Cases (Formerly 414k574) Record available to court reviewing a municip- ality's zoning decision includes relevant evidence received at trial_ 171 Zoning and Planning 414 C--1035 414 Zoning and Planning 41411 Validity of Zoning Regulations 414II(A) In General 414k1035 k. Validity of regulations in general_ Most Cited Cases (Formerly 4141(21) Zoning and Planning 414 01140 414 Zoning and Planning 41411I Modification or- Amendment; Rezoning 41411I(A) In General 4141(1 140 k. Power to modify or amend in general. Most Cited Cases (Formerly 4141( 15 1) A municipality has broad discretion in zoning matters, particularly in enacting a zoning ordinance or rezoning_ 181 Zoning and Planning 414 C-1625 Page 3 of 11 Page 2 414 Zoning and Planning 414X Judicial Review or Relief' 414X(C) Scope of Review 414X(C)l In General 414k162.5 k. Permits, certificates, and approvals in general. Most Cited Cases (Formerly 4141(606) Zoning and Planning 414 01626 414 Zoning and Planning 414X Judicial Review or Relief 414X(C) Scope of'Review 414X(C)l In General 41410626 k. Variances and exceptions in general_ Most Cited Cases (Formerly 4141(607) When variances and other special uses are con- sidered, city counsel functions in a quasi-judicial capacity and is subject to more extensive oversight. 191 Zoning and Planning 414 E,'-1620 414 Zoning and Planning 414X Judicial Review or Relief 414X(C) Scope of Review 414X(C) I In General 4141620 lc In general. Most Cited Cases (Formerly 414603) Once zoning ordinances are enacted, less weight is given to the municipality's legal interpret- ations of its ordinances than on questions of fact 110) Zoning and Planning 414 01383(1) 414 Zoning and Planning 414VIII Permits, Certificates, and Approvals 414VII1(A) In General 414k1379 Maps, Plats, and Plans; Subdi- visions 4140383 Grounds for Grant or Deni- al; Conformity to Regulations 4141<1383(I) k. In general. Most Cited Cases (Formerly 414k381.5) © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works, https://web2.westlaw,com/print/printsti eam. aspx?vr=2.0&mt=59&destination=atp&prft=H... 2/21/2012 Planning Application 2012-07, 02-28-2012, Page 80 FOR EDUCATIONAL USE ONLY 348 N.W.2d 792 (Cite as: 348 N.W.2d 792) When a subdivision ordinance. specifies stand- ards to which a proposed plat must conform, it is arbitrary as a matter- of law to deny approval of a plat which complies in all respects with the subdivi- sion ordinance. 11 ] Zoning and Planning 414 01201 414 Zoning and Planning 414V Constriction, Operation, and Effect 414V(A) In General 4141<1201 k_ As question of law Most Cited Cases (Formerly 414k231) Interpretation of an existing zoning ordinance is a question of law for a court to decide. [12] Zoning and Planning 414 01207 414 Zoning and Planning 414V Construction; Operation, and Effect 414V(A) In General 414k1206 Meaning of Language 41410207 k. In general_ Most Cited Cases (Formerly 414k231) To interpret terms in a zoning ordinance, a court looks to their plain and ordinary meaning and uses the least restrictive interpretation, protecting rights of the property owner_ 113] Zoning and Planning 414 01302 414 Zoning and Planning 414V1 Nonconforming Uses 414k1302 k_ Existence of use in general Most Cited Cases (Formerly 414023) Zoning and Planning 414 C�— 1383(3) 414 Zoning and Planning 414VIII Permits, Certificates, and Approvals 414VIII(A) In General 414k1379 Maps, Plats, and Plans; Subdi- visions 414k1383 Grounds for Grant or Deni - Page 4 of I I Page 3 al; Conformity to Regulations 414k1383(3) k. Architectural and structural designs; area and lot considerations. Most Cited Cases (Formerly 414k381.5) Garage located within 30 feet of a public street was a nonconforming structure pursuant to city or- dinance requiring a 30 foot side yard setback from public streets, and not a nonconforming use, since it was the location of the garage and not its use that did not conform to the ordinance and, therefore, a proposed split of the lot on which the garage was located did not change the nonconformance in any way since the garage retrained in the same location, and the garage would retain benefit of the grand- father clause as it related to the setback require- ment, 1141 Zoning and Planning 414 C-1383(5) 414 Zoning and Planning 414VIII Permits, Certificates, and Approvals 414V111(A) In General 4I4k1379 Maps, Plats, and Plans; Subdi- visions 4141<1383 Grounds for Grant or- Deni- al; Conformity to Regulations 414kl383(5) k. Other particular considerations. Most Cited Cases (Formerly 414k437) Restrictive covenants governing certain lots in a subdivision were private matters to be resolved by parties to the covenants and not by the city in de- termining whether to grant an application for, pre- liminary plat approval involving the subdivision of one of the concerned lots, 1151 Zoning and Planning 414 01383(5) 414 Zoning and Planning 414VIII Permits, Certificates, and Approvals 414VIR(A) In General 414k1379 Maps, Plats, and Plans; Subdi- visions 4140383 Grounds for Grant or Deni- al; Conformity to Regulations © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. https://web2.westlaw.com/print/printstream.aspx?vr=2.0&mt=59&destination=atp&prft=H... 2/21/2012 Planning Application 2012-07, 02-28-2012, Page 81 FOR EDUCATIONAL USE ONLY 348 N.W 2d 792 (Cite as: 348 N.W.2d 792) 414k1383(5) k. Other particular considerations. Most Cited Cases (Formerly 414k381.5) Aesthetic considerations and neighborhood op- position are generally not a sufficient basis for re- fusal to grant an application for preliminary plat ap- proval involving the subdivision of a lot which meets all subdivision zoning requirements - 1161 Zoning and Planning 414 G-1383(5) 414 Zoning and Planning 414VIII Permits, Certificates, and Approvals 414V111(A) In General 4141<1379 Maps, Plats, and Plans; Subdi- visions 414k1383 Grounds for Grant or Deni- al; Conformity to Regulations 4I4k1383(5) k. Other particular considerations. Most Cited Cases (Formerly 414k435) Even if subdivision ordinance's stated purpose of promoting an attractive and stable community could be used as standard in determination of whether to grant an application for preliminary plat approval involving a subdivision of the lot, evid- ence was not sufficient to support such concerns or to thereby justify city's denial of landowners' pre- liminary plat application. 1171 Zoning and Planning 414 <�1383(5) 414 Zoning and Planning 414VIII Permits, Certificates, and Approvals 414VIII(A) In General 414k1379 Maps, Plats, and Plans; Subdi- visions 4141383 Grounds for Grant or Deni- al; Conformity to Regulations 414k1383(.5) k. Other particular considerations. Most Cited Cases (Formerly 4141(381.5) Denial of landowners' application for prelimin- ary plat approval involving the subdivision of their lot, which preliminary plat met all subdivision zon- ing requirements, was unreasonable - [18) Civil Rights 78 0=1304 Page 5 of 11 Page 4 78 Civil Rights 78111 Federal Remedies in General 78k]304 k. Nature and elements of civil ac- tions. Most Cited Cases (Formerly 781(196.1, 78kI08.1, 78k108, 78k13.3(I)) In an action to enforce civil rights, a person must be deprived of a right secured by the United States Constitution and laws by another person and such deprivation must be done under color of law. 42 U.S-C A_ § 1983. 1191 Civil Rights 78 G-1343 78 Civil Rights 78111 Federal Remedies in General 78k1342 Liability of Municipalities and Oth- er Governmental Bodies 780343 k. In general. Most Cited Cases (Formerly 78k206(1), 78k13.7) Local governmental units are persons for pur- poses of federal statute allowing an action to en- force civil rights 42 U.S.C.A. § 1983. 1201 Civil Rights 78 (C�-1482 78 Civil Rights 781II Federal Remedies in General 78k 1477 Attorney Fees 781(1482 k. Results of litigation; prevail- ing parties. Most Cited Cases (Formerly 78k296, 78kl3.17(13)) In any action to enforce civil rights under fed- eral statute allowing such actions, the court, in its discretion, may allow attorney fees to the prevailing party. 42 U.S-C.A- §§ 1.983, 1988. 1211 Constitutional Law 92 <�. -4093 92 Constitutional Law 92XXVII Due Process 92XXVIi(G) Particular Issues and Applica- tions 92XXVII(G)3 Property in General 92k4091 Zoning and Land Use © 2012 Thomson Reuters_ No Claim to Or US Gov Works. https_//weK.west Iaw_com/print/printstream.aspx?vr=2.0&mt=5West] nation=atp&prft=H... 2/21/2012 Planning Application 2012-07, 02-28-2012, Page 82 FOR EDUCATIONAL USE ONLY 348 N.W.2d 792 (Cite as: 348 N.W.2d 792) 92k4093 k. Particular issues and applications. Most Cited Cases (Formerly 92k278.2(2)) In order.for.landowners, whose application for preliminary plat approval had been unreasonably denied by the city, to prevail on their claim that they were entitled to attorney fees pursuant to fed- eral statute allowing an award of attorney fees to prevailing party in an action to enforce civil rights on ground that the denial of approval was a deprivation of property without due process of law, landowners were required to establish that they pos- sessed a legitimate claire of entitlement to the pre- liminary plat approval and a unilateral expectation was not sufficient. 42 U.S.C.A. § 1983; U.S.C.A. Const Amend. 14. 1221 Constitutional Law 92 G-3869 92 Constitutional Law 92XXVII Due Process 92XXVII(B) Protections Provided and Deprivations Prohibited in General 92k3868 Rights, Interests, Benefits, or Privileges Involved in General 92k3869 k In general- Most Cited (Formerly 92k252 5) There is no constitutionally protected interest in state law procedures. 1231 Constitutional Law 92 C- 3869 92 Constitutional Law 92XXVII Due Process 92XXVII(B) Protections Provided and Deprivations Prohibited in General 921(3868 Rights, Interests, Benefits, or Privileges involved in General 92k3869 k. In general. Most Cited (Formerly 921252 5) The due process clause does not convert every statutory right into a constitutional entitlement. U S.0 A. Const -Amend. 14. (241 Constitutional Law 92 04092 Page 6 of I I Page 5 92 Constitutional Law 92XXVII Due Process 92XXVII(G) Particular Issues and Applica- ta ons 92XXVII(G)3 Property in General 92k4091 Zoning and Land Use 92k4092 k. In general. Most Cited Cases (Formerly 92k277(1)) Procedures such as a preliminary plat applica- tion process are designed to prevent arbitrary action but there is no property interest in being fairly con- sidered in the process. U.S.C-A. Const.Amend_ 14 [251 Constitutional Law 92 X4092 92 Constitutional Law 92XXVII Due Process 92XXVII(G) Particular Issues and Applica- tions 92XXV11(G)3 Property in General 92k4091 Zoning and Land Use 92k4092 k. In general. Most Cited Cases (Formerly 92k277(1)) Landowners' property interest in a preliminary plat application process is the award of the prelim- inary plat approval itself f261 Constitutional Law 92 04096 92 Constitutional Law 92XXVIT Due Process 92XXVII(G) Particular Issues and Applica- tions 92XXVII(G)3 Property in General 92k4091 Zoning and Land Use 92k4096 k. Proceedings and re- view. Most Cited Cases (Formerly 92k278.2(2)) Landowners, whose application for preliminary plat approval had been unreasonably denied by city, were not denied due process in the decision-making process and did not suffer a deprivation of property © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. hnps:Hweb2.westlaw.com/print/printstream.aspx?vr=2.0&mt=59&destination=atp&prft=H... 2/21/2012 Planning Application 2012-07, 02-28-2012, Page 83 FOR EDUCATIONAL USE ONLY 348 N W 2d 792 (Cite as: 348 N.W.2d 792) Without due process of law, where they had full hearings before the city counsel and the planning commission, had opportunity to present witnesses and other evidence, and the counsel fully expressed all objections considered by them and stated their reasons for refusing approval. U.S C.A. Const.Amend. 14 1271 Civil Rights 78 0-1073 '78 Civil Rights 781 Rights Protected and Discrimination Prohib- ited in General 781:1073 k Zoning, building, and planning; land use_ Most Cited Cases (Formerly 78kl30.5, 78k130, 78kl3.4(I)) Civil Rights 78 <`z-1479 78 Civil Rights 78111 Federal Remedies in General 78k1477 Attorney Fees 78k 1479 k. Proceedings, grounds, and ob- jections in general. Most Cited Cases (Formerly 78k293, 781(13.17(10)) Landowners, whose application for preliminary plat approval had been unreasonably denied by the city but who had not been denied due process in the decision-making process and had not suffered a deprivation of property without due process of law, were not entitled to attorney fees or damages under federal statute allowing actions to enforce civil rights. 42 U.S.0 A. §§ 1983, 1988; 1J.S.C..A. Const.Amend. 14 794 Syttabars by the Court 1. The denial of plaintiffs' application for pre- liminary plat approval, which met all subdivision zoning requirements, was unreasonable. 2. Plaintiffs are not entitled to damages or at- torney's fees under 42 U.S.C. §§ 1983, 1988 (1976). Daniel J.. Beeson, South St. Paul, for appellant David G. Keller, Eagan, for respondent. Page 7 of 1 I Page 6 Heard, considered, and decided by WOZNIAK, P,J., and HUSPENI and NIERENGARTEN, JJ OPINION HUSPENI, Judge. Appellants submitted applications for waiver of plat and for preliminary plat approval to the Eagan City Council, with the intent of subdividing their residential lot. Both applications were denied by the council after separate hearings. The trial court dis- missed appellants' subsequent declaratory judgment action, and denied their motion for amended find- ings. Appellants claim their applications were im- properly denied and that they are entitled to com- pensatory damages under 42 U.S.C. §§ 1983, 1988 (1976). We reverse and remand. FACTS Appellants David and Patricia Odell own a one -acre lot in the City of Eagan. The lot is located in the McCarthy Ridge Addition which consists of twelve comparably sized lots, and is zoned for res- idential use. An oversized detached garage sits near one corner of the lot, approximately twelve feet from the lot line. The Odells purchased the lot in March, 1982, with the intention of subdividing it into two lots. Prior to purchasing the lot, the Odells spoke with the Eagan city planner, and later met with the city administrator. Both officials indicated the proposed split met city ordinance requirements. The city planner advised appellants of the proper procedures to receive approval of their plans. One alternative is to request a waiver of plat, which waives the subdi- vision requirements. A more costly method "795 is to file a preliminary plat for- approval as a new sub- division. Under both methods, proposals are first considered by the Advisory Planning Commission. The commission issues a recommendation to the City Council, which makes the final decision Parcel One of the proposed subdivision in- cludes the existing home and consists of 26,830 square feet. Parcel Two includes the existing de- © 2012 Thomson Reuters. No Claim to Orig US Gov. Works. https://web2.westlaw. coni/print/pr-intstream.aspx?vr-2.0&mt=59&destination=atp&prft=H... 2/21/2012 Planning Application 2012-07, 02-28-2012, Page 84 FOR EDUCATIONAL USE ONLY 348NW2d792 (Cite as: 348 N.W.2d 792) tached garage, and consists of 16,682 square feet. City ordinance requires a minimum 12,000 square foot lot size. City ordinance also requires a thirty foot side yard setback from public streets. The gar- age does not conform to the setback, but was grand- fathered in as an acceptable nonconformance in ex- istence at the time the ordinance was passed, The Eagan city planning staff reviewed the Odells' application for waiver of plat in May, 1982. They issued a report to the Advisory Planning Commission that did not indicate any deficiencies in the proposal. The commission then held a public hearing Owners of other McCarthy Ridge lots appeared in opposition to the waiver 'They raised concerns about the character of the neighborhood and re- strictive covenants which prohibited lots of less than one acre The commission voted against re- commendation of the waiveri referring to the above reasons and indicating no hardship was shown. At the city council hearing, the Odells stated that there was hardship involved in the cost of plat- ting for such a small subdivision, and that David Odell's heart condition restricted their ability to maintain such a large lot. Neighbors again pro- tested, and submitted a petition. The petition stated that the proposed subdivision would destroy the character of the area, would set a precedent for fu- ture splits resulting in increased density and related problems, that restrictive covenants prohibited lots less than one acre in size, and that the Odells were motivated by financial gain, not any true hardship. The council denied the waiver, suggesting that a preliminary plat would be a better method Council minutes note the above objections, emphasizing that the proposal appeared to change the character of the neighborhood, the precedent issue appeared important, and that no hardship was shown. At the same meeting, the council granted a waiver of plat for a single-family residential lot split in another addition_ This one required a vari- ance for the smaller lot, which was under the Page 8 of I1 Page 7 12,000 square foot minimum_ The only hardship shown was that the lot was larger than necessary for a home. There were no objections by neighbors. In August, 1982, the city planner reviewed the Odells' subsequent application for preliminary plat approval. His report indicated the plat met minim- um subdivision regulations. After a hearing, the Advisory Planning Commission did not recommend approval. Neighbors again spoke in opposition at the city council hearing in September. For the first time, it was noted that the garage would face the probable front lot line of the new Parcel Two, and would vi- olate that thirty foot setback. In response to the council's request, the city at- torney issued an opinion stating that "the Council does not have a good basis for denial of the plat in relation --to the -standards set by any of the -ordin- ances". He advised any denial would have to be based on a violation of the intent of the Subdivision Ordinance, and possibly the uncertainty of the re- strictive covenants issue. The Odells submitted leb al opinions that the covenants had expired. On October 5, 1982, the council denied the Odells' application for preliminary plat approval, and on October 19 adopted a formal resolution in- corporating all previous objections. The Odells filed a declaratory judgment suit al- leging the denials were arbitrary and capricious. At trial, a former city council member testified that the only hardship usually required for a waiver of plat in a single lot split was the cost of platting_ The Odells presented expert testimony that there would be no adverse effect on the *796 character of the neighborhood. They noted that the city had granted six waivers for residential lot splits between 1979 and 1982, denying only two, including the Odells. The other denial was based on danger due to the location of a gas pipeline and failure to show hard- ship. The specific hardship was never expressed when waivers were granted - 0 2012 Thomson Reuters, No Claim to Orig. US Gov, Works. https:llweb2. westlaw_com/pt'int1printstream.aspx?vr=2.0&mt=59&destination=atp&prft=H... 2/21/22012 Planning Application 2012-07, 02-28-2012, Page 85 FOR EDUCATIONAL USE ONLY 348 N W.2d 792 (Cite as: 348 N.W.2d 792) The trial court found the denials reasonable and dismissed the suit. The court further denied plaintiffs' motion for amended findings and conclu- sions of law, indicating that the sole reason for his decision was the garage, as a nonconforming struc- ture. ISSUES 1. Whether the Eagan City Council's denial of appellants' application for preliminary plat approval based on the existence of the nonconforming garage was reasonable 2 Whether the Eagan City Council's denial of appellants' application for waiver of plat for a resid- ential single lot split based on lack of hardship was reasonable. 3. Whether appellants are entitled to damages, costs and attorney's fees pursuant to 42 U.S.C. y 1983.and § 1988. ANALYSIS [1] 1. In reviewing zoning decisions of local governing bodies, this court makes an independent examination of the record to reach its own conclu- sions, with no special deference granted to the trial court's findings. Northwestern College v City of Arclen Hills, 281 N.W.2d 865 (Minn 1979). [2][3][4] The goal of review is to detennine whether the municipality's action was reasonable. Honn v. City of Coon Rapids, 313 N W.2d 409 (Minn.1981), Reasonableness is measured by stand- ards in the local ordinance, not the state statutes. 61hite Bear Docking and Storage, Inc. v. City of LVhite Bear Lake, 324 N.W 2d 174 (Minn.1982) Municipalities are constitutionally required to treat similarly situated people alike in applying those standards. Northwestern College, 281 N.W.2d at 869. [5][6][7][8][9] If reasons for the decision are given, the court examines the record to see if the reasons are legally sufficient and have a factual basis. VanL.anclschoot v. City of Mendota Heights, Page 9 of 11 Page 8 336 N.W 2d 503 (Minn.1983) The record includes relevant evidence received at trial, Honn, 313 N.W.2d at 416_ A municipality has broad discretion in zoning matters, particularly in enacting a zoning ordinance or rezoning. However, when variances and other special uses are considered, a city council functions in a quasi-judicial capacity, and is subject to more extensive judicial oversight. Id. at 417. Once the ordinances are enacted, less weight is giv- en to the municipality's legal interpretations of its ordinances than on questions of fact. Franks Nurs- ery Sales, Inc. v. City of'Roseville, 29.5 N_W.2d 604 (Minn 1980). [10] When a "subdivision ordinance specifies standards to which a proposed plat must conform, it is arbitrary as a matter of law to deny approval of a plat which complies in all respects with the subdivi- sion ordinance". National Capital Corp v. Village of Inver Grove Heights, 301 Minn. 335, 337, 222 N.W.2d 5.50, .552 (1974) (quoting Hcr); v. Township of Grow. 294 Minn 1, 5, 206 N.W.2d 19, 22 (1973) The primary reason for denial of the prelimin- ary plat application was the nonconforming garage. This is apparent in the transcript of the council hearing. Council member Egan moved to deny the application based on three considerations: 1) the nonconforming garage, 2) aesthetic considerations, and 3) the restrictive covenants. After sorne discus- sion, he agreed to delete the second and third reas- ons to focus on the primary objection of the garage. The resolution denying the plat, signed two weeks later, resolves to deny the application "based upon those reasons cited above and including the fact that the garage ... is currently a nonconforming use and to authorize a split of the lot .. would cause an expansion of a nonconforming use "797 .. fur- ther that a new nonconforming use would be cre- ated ..." Resolution, Eagan City Council, dated Oc- tober 5, 1982, signed October 19, 1982 In its Answers to Plaintiffs' Requests for Ad- missions, Number 14, Eagan admits that "The pre - 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. littps:Hweb2.westlaw.com/print/printstream.aspx?vr=2.0&mt=5 9&destination=atp&prft=H... 2/21/2012 Planning Application 2012-07, 02-28-2012, Page 86 FOR EDUCATIONAL USE ONLY 348 N W.2d 792 (Cite as: 348 N.W.2d 792) liminary plat meets all the minimum standards of the Eagan zoning ordinance, except for the opinion of the City Council that [the] preliminary plat res- ults in a new non -conforming use in violation of the Zoning Ordinance", Respondents' counsel's brief and oral argument focused on the garage as the prime reason for denial Eagan argues that the garage is a nonconform- ing use, which loses its protected status with the creation of a new lot, requiring a variance. The Odells argue that it is a nonconforming structure whose existence is functionally unrelated to the lot split. City Planner Dale Runkle admitted at the de- claratoryjudgment trial that the garage is not a non- conforming use. The terminology is significant The ordinance distinguishes between nonconforming structures and uses. EAGAN MINN.Code § 52.05, subd. .2(ZZ),. (AAA)_ It restricts nonconforming uses in section 52.06, subd 3, but does not regulate non- conforming structures [11][12] The interpretation of an existing zon- ing ordinance is a question of law for a court to de- cide ,4rrreon Corp. v City of Eagan, 348 N_W.2d 66 (Minn 1984) To interpret terms in the ordin- ance, a court looks at their plain and ordinary meaning Trunks, 295 N.W.2d at 608. "Zoning or- dinances should be construed strictly against the city and in favor of the property owner." I d The court uses the least restrictive interpretation, pro- tecting the rights of the property owner, [ 13] It is not the building's use that does not conform, but its location Garages are a permitted rise. The split does not change the nonconformance in any way_ While it may become a front yard set- back rather than a side yard, it remains in the same location, is equally close to the same public street, and is still used as a garage. We find the garage is a nonconforming struc- ture as defined in the ordinance. The building itself retains the benefit of the grandfather clause, and it is not conditioned on its surroundings. Page 10 of 11 Page 9 [14][15] In the resolution, the council cited the concerns of the neighbors over the character- of the area, the precedential value of permitting a lot split, and the restrictive covenants. The restrictive coven- ants are private matters to be resolved by the parties to the covenant, and not the city. Aesthetic consid- erations are generally not a sufficient basis alone. See White Bear, 324 N_W2d at 177-78. Nor is neighborhood opposition. Northwestern College, 281 N W 2d at 869. These concerns relate to the stated purpose of the subdivision ordinance. The Eagan Subdivision Ordinance, section 10.01, subd. 1, states that the purpose of the ordinance is to promote an attractive and stable community. This is a vague statement. At least one court has held that similar' language in a preamble "cannot serve as an independent source of authority for disapproving plats." _ Southern Coop_ Dev Fund v Driggers, 696 F 2d 1347, 13.51 (11th Cir. 1983). [16] Even if the stated purpose could be used as a standard, there is not enough evidence to sup- port those concerns to reasonably deny the prelim- inary plat application on that basis. The Odells presented testimony at trial from a city planning consultant that there would be no adverse effect on the area. A real estate appraiser and former Eagan council member concurred. The only evidence re- garding damage to the area came from neighbors emphasizing reliance on the restrictive covenants [17] While we rernain respectful of the discre- tion given to local governing bodies, we find that in this case the Eagan city council did not have a reas- onable basis on which to deny the Odells' prelimin- ary plat x798 application when it met the require- ments of the Eagan subdivision ordinance. 2_ Because we find the preliminary plat was improperly denied, we do not reach the issue of the denial of the waiver of plat_ © 2012 Thomson Reuters. No Claim to Orig US Gov. Works_ https://web2.vvestlaw •com/print/printstream-aspx?vr=2.0&mt=5 9&destination=atp&pr-ft=H. , . 2/21/2012 Planning Application 2012-07, 02-28-2012, Page 87 Page 11 of 11 FOR EDUCATIONAL USE ONLY Page 10 348 N.W 2d 792 (Cite as, 348 N.W.2d 792) 3 The Odells further claim they were denied their rights of due process, alleging that the denial of the preliminary plat was arbitrary and capricious [18][19][20] A § 1983 action has two elements. First, a person must be deprived of a right secured by the United States Constitution and laws by an- other person Second, it must be done under color of law. Local governmental units are persons for Purposes of § 1983 kfonell v Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) In any action to enforce civil rights un- der § 1983, a court, in its discretion, may allow at- torney's fees to the prevailing party under § 1988. [21] The only cognizable right involved here is the alleged deprivation of property without due pro- cess of law, in violation of the Fourteenth Amend- ment_ To prevail on this claim, plaintiffs must first establish that they possessed a legitimate claim of entitlement to the preliminary. plat approval; a uni- lateral expectation is not sufficient. Holgoard v Town q/ Caledonia, 527 F.Supp. 1073 (F_,.D.Wis.1981); Tumulty v. City of Minneapolis, -511 F Supp. 36 (D.Minn_1980)- [22][23][24][25] There is no constitutionally protected interest in state law procedures. l/runo v Sclarrar_lder, 600 F.2d 124 (8th Cir 1979); Nlol- gaard, 527 F.Supp. at 1080; Tumidly,, 511 F.Supp. at 38. The due process clause does not convert every statutory right into a constitutional entitle- ment. Nruno, 600 F.2d at 131. Procedures such as the Eagan preliminary plat application process are designed to prevent arbitrary actions, but there is no property interest in being fairly considered in the process. Tumidly, 511 F Supp. at 37. The property interest is the award of the preliminary plat approv- al itself. Molgaard, 527 F.Supp. at 1081. [26] Further, the Odells were not denied due process in the decision-making process. They had full hearings before the council and the planning commission They had the opportunity to present witnesses and other evidence. Conros v. Herbst, 278 N W 2d 732, 742 (Minn. 1979). The council fully expressed all objections considered by them and stated their reasons for refusing approval. Al- though the council's reasons for denying plat ap- proval were legally insufficient, it does not amount to a deprivation of property or a denial of due pro- cess. [27] Since plaintiff's do not prevail on their § 1983 action, they are not entitled to attorney's fees under § 1988. DECISION For the above reasons, we remand to the Dalcota County District Court for the issuance of an order directing the Eagan City Council to grant plaintiffs' preliminary plat approval - Reversed and remanded- Minn.App.,1984 Odell v. City of Eagan... . 348 N.W 2d 792 END OF DOCUMENT © 2012 Thomson Reuters, No Claim to Orig. US Gov. Works. littps://web2 .westlaw.com/print/pr-intstream.aspx?vr=2.0&mt=59&destination=atp&prft=H... 2/21/2012