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2022-07-26 Planning Commission MinutesAmended/Approved 08/23/2022 July 26, 2022 Mendota Heights Planning Commission Meeting Page 1 of 10 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY, MINNESOTA PLANNING COMMISSION MINUTES JULY 26, 2022 The regular meeting of the Mendota Heights Planning Commission was held on Tuesday, July 26, 2022 in the Council Chambers at City Hall, 1101 Victoria Curve at 7:00 P.M. The following Commissioners were present: Acting Chair Sally Lorberbaum, Commissioners Patrick Corbett, Cindy Johnson, Michael Toth, and Brian Petschel. Those absent: Chair Litton Field, and Commissioner Andrew Katz. Approval of Agenda The agenda was approved as submitted. Approval of June 28, 2022 Minutes COMMISSIONER CORBETT MOVED, SECONDED BY COMMISSIONER JOHNSON TO APPROVE THE MINUTES OF JUNE 28, 2022. FURTHER DISCUSSION: ACTING CHAIR LORBERBAUM NOTED ON PAGE TWO, THE SECOND PARAGRAPH, IT SHOULD STATE, “…OTHER OPTIONS.” ON PAGE THREE, NUMBER FOUR, IT SHOULD STATE, “…C.O. CERTIFICATE OF OCCUPANCY…” AYES: 5 NAYS: 0 Hearings A) PLANNING CASE 2022-12 DISH WIRELESS, LLC/ISD-197, 1897 DELAWARE AVENUE – CONDITIONAL USE PERMIT Community Development Director Tim Benetti explained that DISH Wireless is seeking a conditional use permit (CUP) to add new wireless or cellular communication equipment on top of the Two River High School facility, located at 1897 Delaware Avenue. Title 12-1D-14 of the Code requires conditional use permit approval for wireless antennas, subject to conditions. Hearing notices were published and mailed to all properties within 350-ft. of the site; no comments or objections to this request were received. Community Development Director Tim Benetti provided a planning staff report and a presentation on this planning item to the Commission (which is available for viewing through the City’s website). Amended/Approved 08/23/2022 July 26, 2022 Mendota Heights Planning Commission Meeting Page 2 of 10 Staff recommended approval of this application based on the findings and with conditions. Commissioner Toth referenced the new antennas that will be mounted and asked if those would be higher than the existing antennas. Community Development Director Tim Benetti replied that the new antennas would be at or below the height of the existing antennas. Commissioner Toth asked if the 15-foot height limitation comes from City Code or whether that is from the manufacturer’s information. Community Development Director Tim Benetti replied that limitation for roof mounted items is found within City Code. Commissioner Johnson noted that the staff report stated that an environmental impact statement was not applicable. She stated that the FCC talks about an environmental assessment if the facilities will cause human exposure levels and asked those levels. She also asked why the EIS was not applicable. Community Development Director Tim Benetti stated that the FCC licenses and monitors these structures. He noted that those proofs are provided to the FCC to ensure harm will not be caused to humans or the environment. He stated that the FCC licensing is complicated and noted that perhaps the applicant could provide additional details. Commissioner Petschel stated that typically that falls to the equipment rather than the applicant. Community Development Director Tim Benetti stated that the applicant has provided the FCC packet of information and that entity would have the final say on whether there would be any impacts. Acting Chair Lorberbaum suggested that the approval be contingent upon receipt of the FCC license. Rob Viera representing DISH Wireless, stated that T-Mobil and Sprint merged into one which means there are three major carriers. He stated that DISH obtained a permit to provide service in the market as the fourth provider. He stated that this is 5G equipment, therefore it is smaller equipment with one cabinet and three antennas. He stated that the existing Verizon equipment would be larger and higher than their proposed equipment. Commissioner Toth asked if there is a capacity of how many tenants could have equipment on the building, noting that 15 years ago there were no antennas and now there will be three. Mr. Viera replied that it is expensive to come into the market and therefore he does not see a lot more companies attempting to come into the market. He stated that they look for existing locations Amended/Approved 08/23/2022 July 26, 2022 Mendota Heights Planning Commission Meeting Page 3 of 10 rather than building new towers. He stated that AT&T is located elsewhere, and the other three carriers would be located on this building. Commissioner Johnson stated that the coverage is shown on the map, with and without this site. She asked if the company is planning any other locations within a two-mile radius. Mr. Viera replied that there would be other locations, but he is not working on those. He stated that he could provide a map with proposed locations. He stated that antenna locations are determined based on the number of customers and service needs. Commissioner Johnson commented that it is her understanding that high frequency 5G requires more towers closer together and asked for more details. Mr. Viera replied that they are not looking to build towers and therefore they look for existing towers or structures with inherent height that could support an antenna. He stated that DISH purchased the BOOST Mobile customers in this market as a starting point. He stated that antennas can be put into right-of-way within certain limitations as they are considered a utility. He noted that this would be a smaller network and the needs would depend on the customer base. He stated that there will be more needed to cover Mendota Heights, but that is yet to be determined. Commissioner Petschel stated that he believes the comments of Commissioner Johnson is related to ultra-wideband which is not what DISH is suggesting. Commissioner Johnson asked if there is data on the radio frequency levels for students and teachers with the antennas and all the phones being used. Mr. Viera stated that the signal propagates up towards the horizon. He stated that the kids in the school will have the best service, noting that phones get warm when they are searching for a signal. Acting Chair Lorberbaum confirmed that the applicant agrees with the right for the City to request a third-party inspection of the equipment if desired. She also referenced the right for the City to require a bond and asked if the applicant is willing to do that. Mr. Viera replied that is covered in the lease and agrees with the condition. Acting Chair Lorberbaum asked how often inspections are done. Mr. Viera replied that things can be adjusted and maintained remotely. He noted that generally speaking someone could visit the site every few months but if everything is operating well, it would not require someone to visit the site as often. Acting Chair Lorberbaum referenced a sticker shown in the packet that had a phone number and stated that she called the number and it stated that the phone number would no longer be valid as of August 1st but provided a new phone number that would be valid after that time. Amended/Approved 08/23/2022 July 26, 2022 Mendota Heights Planning Commission Meeting Page 4 of 10 Mr. Viera replied that he did not complete the drawings but noted that a correct phone number would be used. Acting Chair Lorberbaum opened the public hearing. Seeing no one coming forward wishing to speak, Acting Chair Lorberbaum asked for a motion to close the public hearing. COMMISSIONER PETSCHEL MOVED, SECONDED BY COMMISSIONER CORBETT, TO CLOSE THE PUBLIC HEARING. AYES: 5 NAYS: 0 COMMISSIONER PETSCHEL MOVED, SECONDED BY COMMISSIONER CORBETT, TO RECOMMEND APPROVAL OF THE CONDITIONAL USE PERMIT FOR THE NEW WIRELESS ANTENNA IMPROVEMENTS PROPOSED BY DISH WIRELESS, AND TO THE PROPERTY LOCATED AT 1897 DELAWARE AVENUE, WITH THE CONDITION THAT THE APPLICANT ABIDES BY ALL REGULATIONS IN TITLE 12-1D-14 OF THE CITY CODE, AS OUTLINED IN THE STAFF REPORT, AND WITH THE FOLLOWING CONDITIONS: 1. THE APPLICANT SHALL ABIDE BY ALL REGULATIONS IN TITLE 12-1D-14 OF THE CITY CODE. 2. THE APPLICANT SHALL MEET ALL FEDERAL COMMUNICATIONS COMMISSION (FCC) STANDARDS AND REGULATIONS RELATED TO THE OPERATION AND MAINTENANCE OF THESE NEW ANTENNA FEATURES. 3. A BUILDING PERMIT MUST BE APPROVED PRIOR TO ANY INSTALLATION OR NEW CONSTRUCTION WORK. THE APPLICANTS MUST PROVIDE THE NAME AND CONTACT INFORMATION OF A PRIVATE, THIRD -PARTY STRUCTURAL ENGINEERING INSPECTION FIRM OR STRUCTURAL INSPECTOR TO PROVIDE REPORTS TO THE CITY’S BUILDING OFFICIAL CONFIRMING ALL NEW WORK AND STRUCTURAL ADDITIONS WERE DONE IN ACCORDANCE WITH STATE OF MINNESOTA BUILDING CODES. 4. THE NEW ANTENNAS AND RELATED EQUIPMENT SHALL COMPLY WITH ALL APPLICABLE ELECTRICAL CODES. 5. THE NEW ANTENNA ARRAYS AND SUPPORTING STRUCTURAL MATERIALS SHALL BE PAINTED TO MATCH THE EXISTING PAINTED COLOR(S) WITH THE OTHER EXISTING CELLULAR COMMUNICATION EQUIPMENT ON THE SCHOOL. 6. NO ADDED LIGHTING OR ADVERTISEMENT OF ANY KIND, INCLUDING ANY NOTICEABLE PROVIDER/COMPANY LOGO SHALL BE PLACED ON ANY PART OF THE ANTENNA ARRAYS, WHICH MAY BE NOTICEABLE OR VIEWED BY THE GENERAL PUBLIC FROM THE GROUND OR SURROUNDING PROPERTIES. 7. A THIRD-PARTY INSPECTION CAN BE REQUESTED AND REPORT PROVIDED TO THE CITY. Amended/Approved 08/23/2022 July 26, 2022 Mendota Heights Planning Commission Meeting Page 5 of 10 FURTHER DISCUSSION: ACTING CHAIR LORBERBAUM ASKED IF ANOTHER CONDITION SHOULD BE ADDED RELATED TO INSPECTION. COMMISSIONER PETSCHEL ASKED WHO WOULD BE RESPONSIBLE FOR THE COST OF AN INSPECTION, NOTING THAT HE BELIEVED IT WOULD FALL TO THE CITY. COMMUNITY DEVELOPMENT DIRECTOR TIM BENETTI EXPLAINED THAT WITH COMPLICATED THINGS SUCH AS THIS, THE CITY HAS THE RIGHT TO REQUEST A THIRD-PARTY INSPECTION BE COMPLETED AND PROVIDED DETAILS ON A SIMILAR INSPECTION THE CITY REQUESTED. HE STATED THAT THE CITY IS THEN PROVIDED WITH A REPORT AND CONFIRMED DISH WIRELESS PAID FOR THE INSPECTION IN THE OTHER INSTANCE. THAT REQUIREMENT IS ALREADY INCLUDED IN CONDITION THREE. COMMISSIONER JOHNSON STATED THAT SHE IS AWARE THAT THIS ACTIVITY IS HIGHLY REGULATED BY THE FCC, BUT SHE IS UNSURE THE THOUGHTS OF THE COMMISSION. SHE ASKED IF THERE IS ANY DATA TO SAY WHAT IS GOING ON IN THE BUILDING RELATED TO RADIATION. COMMISSIONER PETSCHEL STATED THAT HE REGULARLY SHEPHERDS EQUIPMENT THAT HE DESIGNS THROUGH THE FCC PROCESSES AND EVERY CELL PHONE IS INDEPENDENTLY REGULATED REGARDLESS OF BROADCAST CONDITIONS TO ENSURE IT IS SAFE FOR HUMAN USE. HE PROVIDED ADDITIONAL DETAILS ON HOW THE SAFE EMISSION STANDARDS ARE DETERMINED AND NOTED THAT THE ROOF IS A GROUNDED METAL SURFACE. HE STATED THAT HE HAS NO CONCERN. ACTING CHAIR LORBERBAUM ASKED IF AN ABANDONMENT BOND SHOULD BE ADDED. COMMISSIONER PETSCHEL STATED THAT THIS IS NOT CITY OWNED PROPERTY. COMMUNITY DEVELOPMENT DIRECTOR TIM BENETTI COMMENTED THAT WILL BE BUILT INTO THE LEASE AGREEMENT WITH THE SCHOOL DISTRICT. AYES: 5 NAYS: 0 Acting Chair Lorberbaum advised the Applicant that the City Council would consider this application at its August 3, 2022 meeting. B) PLANNING CASE 2022-13 TIM AND MEGAN ALTIER, 1057 ESTHER LANE – VARIANCE Community Development Director Tim Benetti explained that Tim and Megan Altier, owners of 1057 Esther Lane, are requesting consideration of a variance to encroach approximately 3.3 feet Amended/Approved 08/23/2022 July 26, 2022 Mendota Heights Planning Commission Meeting Page 6 of 10 into the 10-foot side yard setback in order to provide an expanded attached garage addition to the existing single-family dwelling. Hearing notices were published and mailed to all properties within 350-ft. of the site. The applicants received one email letter of support from a neighboring resident, and signatures of consent/support from two neighboring owners, including the neighbor to the north who is immediately adjacent to the proposed addition. He also provided a comment received in opposition from a resident but was unsure of the address of that resident. Community Development Director Tim Benetti provided a planning staff report and a presentation on this planning item to the Commission (which is available for viewing through the City’s website). Staff recommended approval of this application based on the findings and with conditions. Commissioner Petschel asked if this is a nonconforming property. Community Development Director Tim Benetti replied that it is because it does not meet the front setback. Commissioner Corbett asked if this would be a tandem garage or side by side. Community Development Director Tim Benetti clarified that it would be a side-by-side garage. Commissioner Johnson asked how the drainage on that side of the house runs as the neighboring property is lower. Community Development Director Tim Benetti commented that the drainage goes out to the street and did not see any impacts between the yards. He noted that the block wall would also prevent runoff to the neighboring property. He stated that the driveway will be remaining in place and if it were repaired/replaced, it would need to come into conformance. Commissioner Toth commented that it would seem the existing concrete and wall could be compromised with the construction of the garage. He asked if the City would consider looking at the whole project including the wall to ensure there are not issues with drainage. Community Development Director Tim Benetti replied that area of concrete would be cut out for the foundation but believes that there would be sufficient space to not impact the wall. Public Works Director Ryan Ruzek stated that the wall does not appear to be four feet tall, which is the height that is considered a structure. He believed that the wall would guide the drainage towards the east/street. Commissioner Johnson stated that if a portion of the driveway is being cut out, would that be considered as making a change to the driveway. Amended/Approved 08/23/2022 July 26, 2022 Mendota Heights Planning Commission Meeting Page 7 of 10 Community Development Director Tim Benetti acknowledged that the driveway is not in great shape and anticipates that may come in under a separate permit. He stated that removal of that section of the driveway for the foundation would not trigger the new requirements to make the driveway compliant. Tim and Megan Altier, applicants, introduced themselves and noted that their contractor is also present to address any questions. Mr. Altier commented that they had the wall built in 2019 after they purchased their home and remodeled the home. He stated that they also installed drain tile to the street along the wall. Mrs. Altier commented that there is a small slope to the roof that slopes to the backyard. She noted that the gutters were redone and also go into the backyard. Commissioner Toth asked if there would be any room to exclude the 4.7 feet on the side of the garage and expand the garage further into the backyard. Mr. Altier noted that within their narrative they did explain they considered a tandem style garage but stated that would still require a variance. He stated that although the existing garage is attached, there is no entry from inside the garage into the home. He noted that the intention is to be able to enter the home from the garage into their mud room. He stated that they feel that this is the minimum plan to allow two vehicles to be parked inside and walk into the home. Acting Chair Lorberbaum asked if a zigzag architecture shown in the plan would still allow entrance into the home. Mr. Altier replied that although that could be done, it would drive costs up and he did not believe it would look as aesthetically pleasing. He stated that they are still attempting to keep the style of the home and area. Commissioner Johnson referenced materials within the packet that show the proposed addition footprint is shown in grey but then a rectangle is removed and shown in yellow as the preferred footprint. She asked for clarity. Dave Chapman, contractor for the applicant, provided clarification on the proposed footprint versus the survey. Acting Chair Lorberbaum asked if a variance would not be needed with the zigzag. Community Development Director Tim Benetti replied that the zigzag would still require a variance. Commissioner Petschel stated that the only way to avoid the variance would be to use a trapezoidal wall. He asked the width of the lot at its narrowest, noting that would appear the frontage would be less than 100 feet. He commented that this seems to be a problem with the definition of frontage and stated that in the area where the home is built the width of the lot is substantially less than the normal buildable frontage which would support the variance request. He commented that it would Amended/Approved 08/23/2022 July 26, 2022 Mendota Heights Planning Commission Meeting Page 8 of 10 support the argument that it is not the fault of the current property owner that the home was built where it was. Acting Chair Lorberbaum asked how close the email comments in support and opposition are to the subject property. Public Works Director Ryan Ruzek replied that the email received in opposition was from the resident at 574 Butler Avenue, which is not in proximity to the subject property. Community Development Director Tim Benetti replied with the location of the resident that provided the email of support. Acting Chair Lorberbaum opened the public hearing. Seeing no one coming forward wishing to speak, Acting Chair Lorberbaum asked for a motion to close the public hearing. COMMISSIONER TOTH MOVED, SECONDED BY COMMISSIONER JOHNSON, TO CLOSE THE PUBLIC HEARING. AYES: 5 NAYS: 0 Community Development Director Tim Benetti commented that Commissioner Petschel is correct that this property was developed prior to the ownership of the Altiers and therefore the circumstance was created by others. He stated that if the home had been centered on the lot there would be no variance needed and a three-car garage could be supported. Commissioner Petschel stated that if the proper dimensions of the lot were required originally, the variance would not be required either. Commissioner Corbett commented that the practical difficulty would then be the shortage of frontage for the lot. COMMISSIONER PETSCHEL MOVED, SECONDED BY COMMISSIONER CORBETT, TO RECOMMEND APPROVAL OF THE VARIANCE TO 1057 ESTHER LANE AND TO TIM AND MEGAN ALTIER BASED ON THE FINDINGS OF FACT SUPPORTING THE VARIANCE APPLICATION REQUEST AND THE CONDITIONS NOTED IN THE STAFF REPORT, AND THE PRACTICAL DIFFICULTY BASED ON LOT SIZE. FURTHER DISCUSSION: COMMISSIONER CORBETT STATED THAT HE BELIEVES THAT THIS REQUEST IS WARRANTED BECAUSE OF THE PRACTICAL DIFFICULTY DISCUSSION OF COMMISSIONER PETSCHEL. COMMISSIONER TOTH STATED THAT ALTIERS PURCHASED THIS HOME IN 2019 AND THEREFORE IT IS EASY TO SAY THEY SHOULD HAVE KNOWN WHAT THEY Amended/Approved 08/23/2022 July 26, 2022 Mendota Heights Planning Commission Meeting Page 9 of 10 WERE UP AGAINST. HE STATED THAT OFTEN HOMES ARE BUILT IN THE 1960s BEFORE REGULATIONS WERE DEVELOPED AND THEREFORE THIS MUST BE CONSIDERED ON A CASE-BY-CASE BASIS BASED ON WHAT IS BEST FOR THE RESIDENTS AND NEIGHBORHOOD. HE AGREED THAT THIS WOULD BE A GREAT ADDITION TO THE HOME. HE STATED THAT PERHAPS THE OWNER WILL LOOK AT THE DRIVEWAY IN THE FUTURE TO ENSURE THERE IS NO FUTURE PROBLEM WITH DRAINAGE FOR THE NEIGHBORS. COMMISSIONER JOHNSON COMMENTED THAT IN HAVING THE OTHER OPTION AVAILABLE, SHE IS DISAPPOINTED THAT THE COMMISSION IS NOT LOOKING AT THAT AS THE PROPOSAL. SHE STATED THAT SHE DOES AGREE WITH THE PRACTICAL DIFFICULTIES AS DISCUSSED. COMMISSIONER TOTH STATED THAT IF THE ADDITIONAL SPACE WERE ADDED TO THE BACK, IT WOULD ONLY RESULT IN A 1.5 CAR GARAGE WHICH WOULD NOT PROVIDE THE DESIRED RESULT FOR TWO VEHICLES TO BE PARKED INSIDE. COMMISSIONER PETSCHEL REFERENCED THE POINT OF THE RESIDENTS KNOWING WHAT THEY BOUGHT INTO, ESPECIALLY IN THE NORTHERN PORTION OF THE COMMUNITY. HE STATED THAT WHEN THE HOMES WERE BUILT, THEY WERE CONFORMING AND THE CITY THEN CHANGED ITS REGULATIONS, THEREFORE IT WAS NOT A BUILDER MISTAKE BUT A SITUATION IN WHICH THE CITY CHANGED THE RULES AFTER THE FACT. COMMISSIONER JOHNSON NOTED THAT IS ALSO A SIGN OF THE TIMES IN CHANGING REGULATIONS AND ARCHITECTURAL DESIRES. SHE NOTED THAT PERHAPS A PREVIOUS OWNER OWNED BOTH LOTS WHEN THE LOT SPLIT WAS COMPLETED IN THE PAST, THE SITUATION IS JUST UNKNOWN. AYES: 5 NAYS: 0 Acting Chair Lorberbaum advised the City Council would consider this application at its August 3, 2022 meeting. New and Unfinished Business A) COMMISSION DATA PRACTICES AND EMAIL UPDATE Assistant City Administrator Kelly Torkelson stated that to support compliance with the Minnesota Data Practices Act, as well as to support a separation of personal communication with Commission communication, the City is rolling out City email addresses for Commission members and provided a brief presentation. Commissioner Petschel asked if there is guidance within the State law for the maintenance of records. Amended/Approved 08/23/2022 July 26, 2022 Mendota Heights Planning Commission Meeting Page 10 of 10 Assistant City Administrator Kelly Torkelson replied that it would depend on the type of information. She stated that she can review that information and provide it to Commissioner Petschel as there is a variety of requirements depending on the type of data. Acting Chair Lorberbaum asked who the contact person would be if someone were to have problems accessing their email. Assistant City Administrator Kelly Torkelson replied that she would be happy to help, as would other City staff members. Acting Chair Lorberbaum asked when the new email would be rolled out. Assistant City Administrator Kelly Torkelson commented that she would send out this information later this week. Acting Chair Lorberbaum asked for details on open meeting laws, in specific related to email communication between members of a Commission. Assistant City Administrator Kelly Torkelson provided information on the open meeting laws and related to email communication. Commissioner Johnson stated that as a resident and Master Gardener that regularly communicates with City staff and asked if she should be using her City email or personal email for that purpose. Assistant City Administrator Kelly Torkelson stated that any email sent to City staff, or a Commission member is public data. She stated that a draft email for a Commission or City staff member would be considered public data, whereas a draft email for a resident would not be considered public data. Community Development Director Tim Benetti provided an update of recent Council action related to previous Commission recommendations. He also provided an update on the legal actions relating to the Culligan property. He stated that there is a Commission workshop scheduled for the following night at 5:00 p.m. Adjournment COMMISSIONER TOTH MOVED, SECONDED BY COMMISSIONER CORBETT, TO ADJOURN THE MEETING AT 8:21 P.M. AYES: 5 NAYS: 0