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PC 05-28-2024May 28, 2024 Mendota Heights Planning Commission Meeting Page 1 of 9 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY, MINNESOTA PLANNING COMMISSION MINUTES May 28, 2024 The regular meeting of the Mendota Heights Planning Commission was held on Tuesday, May 28, 2024 in the Council Chambers at City Hall, 1101 Victoria Curve at 7:00 P.M. The following Commissioners were present: Chair Litton Field (arrived at 7:08 p.m.), Commissioners Patrick Corbett, Cindy Johnson, Brian Petschel, Brian Udell, Jason Stone, and Andrew Katz. Those absent: None. Approval of Agenda The agenda was approved as submitted. Approval of April 30, 2024 Minutes COMMISSIONER KATZ MOVED, SECONDED BY COMMISSIONER PETSCHEL TO APPROVE THE MINUTES OF APRIL 30, 2024. AYES: 6 NAYS: 0 Hearings A) PLANNING CASE 2024-08 PAUL KATZ, “FRITZ ADDITION” – PRELIMINARY AND FINAL PLAT Community Development Manager Sarah Madden explained that the applicant is requesting approval to subdivide a vacant parcel lying west of their 1855 Hunter Lane property. The subdivision is presented as a Preliminary and Final Plat approval of the parcel to split into two outlots for the purpose of conveyance, and later consolidation, to the property to the south (1867 Hunter Lane). This subdivision requires a Preliminary and Final Plat because the subject property is an unplatted parcel with a metes and bounds legal description. The proposed plat is titled FRITZ ADDITION and will result in two non-buildable outlots within the Mississippi River Corridor Critical Area (MRCCA), which are fully within the Bluff Impact Zone (BIZ). 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 Manager Sarah Madden 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). May 28, 2024 Mendota Heights Planning Commission Meeting Page 2 of 9 Staff recommended approval of this application based on the findings and with conditions. Chair Field arrived. Commissioner Johnson asked if the conditions should specify “with 100-foot frontage” or whether that would be redundant. Community Development Manager Sarah Madden commented that would be included in the defined road frontage but noted that additional clarification could be added if desired. Commissioner Corbett commented that the presentation stated that this would not change building rights, but noted that it could in terms of the size of the secondary garage that could be built. He asked if any rights would be gained by having the additional lot size. Community Development Manager Sarah Madden commented that the application is only for the lot split and a lot consolidation would occur through another plat. She noted that this case could not meet the criteria to complete that consolidation administratively. She stated that the overall lot size, after combination, could add some flexibility because of the lot size. She reviewed the secondary garage requirements and size allowances based on lot size. Commissioner Corbett commented that even with the combination that could occur from two lots, it would appear the secondary garage size allowance would remain the same and no additional rights would be gained. Chair Field opened the public hearing. Paul Katz, applicant, stated that he was present to address any questions that may arise. Scott Van, 1870 Hunter Lane, commented that he is confused how these would be non-buildable but at the same time the second condition states that they could be added to lots. He was concerned as they had always been told that the bluff was non-buildable. Commissioner Petschel commented that the bluff sections would not be buildable no matter which lot they are attached to. He commented that at some point these outlots would be attached to another parcel, per his understanding. Commissioner Corbett explained that the outlots would need to be attached to another lot in order for any of that property to be buildable. Commissioner Petschel provided additional clarification that the area of the lots marked in grey could not be built upon. Seeing no one further coming forward wishing to speak, Chair Field asked for a motion to close the public hearing. May 28, 2024 Mendota Heights Planning Commission Meeting Page 3 of 9 Community Development Manager Sarah Madden commented that while the land itself within the bluff area is not buildable, the parcels that front on Hunter Lane are buildable lots and therefore if combined with a buildable lot, it would be considered buildable, but nothing could be built within those BIZ areas. COMMISSIONER CORBETT MOVED, SECONDED BY COMMISSIONER JOHNSON, TO CLOSE THE PUBLIC HEARING. AYES: 7 NAYS: 0 Commissioner Katz commented that he will not partake in the discussion or voting because of a conflict of interest. COMMISSIONER PETSCHEL MOVED, SECONDED BY COMMISSIONER UDELL, TO RECOMMEND CITY COUNCIL APPROVAL OF THE APPLICATION OF PAUL KATZ FOR THE PRELIMINARY AND FINAL PLAT OF FRITZ ADDITION, BASED ON THE FINDINGS-OF-FACT AND WITH THE FOLLOWING CONDITIONS: 1. THE NEWLY CREATED PARCELS, IDENTIFIED AND DESCRIBED AS “OUTLOT A” AND “OUTLOT B” ON THE ATTACHED PRELIMINARY AND FINAL PLAT DRAWINGS SHALL EACH BE COMBINED WITH AN ADJOINING PARCEL WHICH MAINTAINS ACCESS ON A CITY-APPROVED STREET OR PUBLIC ROADWAY. 2. THE NEWLY CREATED PARCELS, IDENTIFIED AND DESCRIBED AS “OUTLOT A” AND “OUTLOT B” ARE NOT BUILDABLE IN THEIR CURRENT FORM, AND MUST BE COMBINED WITH AN ADJOINING PARCEL IN ORDER TO BE CONSIDERED PART OF A BUILDABLE LOT. Further discussion: Commissioner Johnson asked if the “100 foot of frontage” should be included in the condition. Commissioner Petschel commented that the outlots are not buildable and therefore cannot make up a flag lot. He stated that combining this with another lot would not impact whether the lot would be a flag lot. Public Works Director Ryan Ruzek commented that lot A is just shy of 100 feet of frontage, by less than one foot, and therefore including that language could complicate things in the future. AYES: 6 NAYS: 0 ABSTAIN: 1 (Katz) Chair Field advised the City Council would consider this application at its June 4, 2024 meeting. New/Unfinished Business May 28, 2024 Mendota Heights Planning Commission Meeting Page 4 of 9 A) DISCUSSION – URBAN FOREST PRESERVATION ORDINANCE Community Development Manager Sarah Madden explained that the Natural Resources Commission has provided a draft of the proposed Urban Forest Preservation Ordinance. The Commission is asked to discuss the proposed ordinance and provide comments. Commissioner Corbett recognized that there is a process for permitting but asked how there will be a balance of education and enforcement, noting the number of after the fact permits the City reviews. Community Development Manager Sarah Madden replied that there will be a big engagement push as the ordinance is rolled out. She stated that the City will be reaching out to known vendors and contractors proactively to update them on the new ordinance as well as reaching out to residents through multiple platforms as well. She stated that tree removal permits are not uncommon in the metro, or Dakota County. Commissioner Stone asked if a permit would be required to plant a tree going forward. Community Development Manager Sarah Madden clarified it was only the removal that would require a permit and a planting plan would be required if the removal trigger occurs. She also provided details on diseased tree removal. Commissioner Petschel referenced the enforced alteration permit section noting that 33 percent is completely arbitrary. He asked if the City is comfortable with that percentage. Commissioner Johnson commented that a number of cities use one third. Commissioner Petschel commented that he watched the meeting, and it was originally 50 percent, then reduced to 33 percent and the statement was made that there was no reasoning behind that other than asking for as much as they could. Commissioner Johnson stated that the 50 percent was from an ecologist. Commissioner Petschel commented that is still not a scientific number/reasoning. He used the scenario that there is a lot with two trees and removal of one tree would trigger the permit. Commissioner Udell used the example of a property with four trees, where one could be removed without a permit while the neighbor could have 20 trees and removal several without triggering the permit. Commissioner Petschel commented that is a concern. He stated that he would remove lot splits entirely from this as he does not believe a preliminary or final plat could be denied for anything other than zoning requirements. Community Development Manager Sarah Madden confirmed that is correct and noted that the requirement would be for the information to be submitted when the lot split is required. May 28, 2024 Mendota Heights Planning Commission Meeting Page 5 of 9 Commissioner Petschel asked why that would be required. He stated that if a Wetlands Permit is required, that is not required at the time of lot split and wondered why this would be different. Public Works Director Ryan Ruzek replied that Wetlands Permits have been required recently with the platting. Commissioner Petschel commented that he does not think this is appropriate to be included with a lot split. He referenced section c, addressing the review process, and stated that there should probably be a time limit for the review process listed. He noted that the appeals time also seem to be too narrow and could limit the City process. He noted that this ordinance does not include criteria for approval or denial and there is not a single element of merit within the ordinance for which to base a decision. Public Works Director Ryan Ruzek commented that are they saying the permit can be denied, or that it simply would trigger the replacement plan. Commissioner Petschel commented that he would not want to see this used to limit lot splits, density, or property rights. He stated that he is unsure why there would be an appeal process if the permit cannot be denied. Commissioner Johnson stated that perhaps the appeal process is related to the number of trees required for replanting. Commissioner Petschel commented that the escrow language is vague and should be clarified. He also believed an exemption would be required for solar access, or access to the sky. He referenced the replacement formula and did not understand the specimen trees saved. Community Development Manager Sarah Madden commented that specimen should be significant. Commissioner Petschel commented with errors he was having with the formula. Commissioner Udell stated that he had the same issue with the formula. Community Development Manager Sarah Madden stated that the City Council did also discuss the lot split trigger. She stated that generally that would be associated with a lot split with a development plan as that would include tree removal. She stated that the condition could be that the permit would be required as it moves forward. She stated that a member of the Council did express concern that could be redundant and therefore that comment will carry forward. She referenced section d which has measures listed that could be added to a forest management plan. Commissioner Petschel commented that he came at this from the approach that this is a permit that can or cannot be approved, and perhaps that was the wrong approach. He stated that perhaps the better eye for review would be how onerous that this could be on a property owner. May 28, 2024 Mendota Heights Planning Commission Meeting Page 6 of 9 Public Works Director Ryan Ruzek commented that this would apply more towards large development and not a property owner removing a tree from their yard as that would be very burdensome for staff. Commissioner Petschel used the example of the orchard project and stated that perhaps the City would have tried to use this to limit lot sizes, which would not stand up in court. Commissioner Johnson commented that the intention is to prevent clear cutting rather than limiting lot size. Commissioner Petschel referenced specific language that would relate to lot size and development layout. He noted that language would state that the City can change a plan, without any criteria. Commissioner Johnson stated that this is based on ecological information and the science behind tree preservation. Commissioner Petschel used the example of a property with a virgin forest with heritage trees equally spaced, which would then impact the ability to create a development that meets all zoning standards. He commented that this would potentially build an ordinance that could support the most common argument for neighbors in a lot split, where they do not want the trees (or greenspace) to be developed. He commented that the City does not have the right to prevent people from building on a site just because there are heritage trees. He stated that the City needs to be careful that this ordinance would not overstep. Chair Field commented that in theory this could also create a situation where the City loses in court and the applicant can do whatever they want. He commented that this may be built on science, but that science is not part of the code and is ultimately subjective. Commissioner Johnson commented that other standards are based on science, such as roof height. Commissioner Petschel clarified that he does not argue that this should exist, but he does not want to give the City the ability to curate development based on the trees that exist on a site. Chair Field agreed with Commission Petschel that while this may be based on some science, that science could be different today than it was yesterday. He stated that this is more opinion based and is where the City would lose a lawsuit. Commissioner Katz asked if the City Attorney has reviewed this ordinance draft. Community Development Manager Sarah Madden commented that she does have comments from the City Attorney that she can review, and she can forward these additional concerns. Commissioner Petschel commented that even if this were legally allowed, it would be bad policy for the City. May 28, 2024 Mendota Heights Planning Commission Meeting Page 7 of 9 Commissioner Katz recognized that there are concerns that have been expressed that should be reviewed by the City Attorney. He stated that he also agrees that something of this nature is needed but this does not appear to be the right version. Chair Field agreed that this has not been drilled down to the level of detail that it would be cohesive and enforceable. Natural Resources Commission Chair Heidi Swank appreciated the feedback received tonight from the Commission. She stated that it is the City’s right and place to determine what can be built where. She echoed the comment that this began at 50 percent, which came from the City’s Natural Resources Plan, and was based on science. She argued that science is an important base for a policy. She stated that her Commission exists to protect the natural resources and therefore they believe 33 percent is a good spot and the City Council did not express concern. She commented that just like speed limits these are arbitrary numbers. Commissioner Petschel and Chair Field commented that speed limits are not arbitrary numbers. Commissioner Swank commented that perhaps that was the wrong example and used setbacks. Commissioner Petschel stated that the code clearly states what setbacks are. He stated that the comment has been made by staff that this is a permit that cannot be denied. Commissioner Swank disagreed with that statement. She commented that in this ordinance she could see that if a forest management plan did not meet the standards, the permit would not need to be approved. She stated that if would be difficult to have exact standards because lots and tree counts can be very different, therefore the applicant could work with staff to find a reasonable solution. Commissioner Petschel commented that would work great when there is a compliant applicant. He stated that the moment that someone is told no, that person will sue, noting that the City has been sued at least five or six times in his time on the Commission. He stated that in those cases, the City will only win when there are very tight and specific rules. He stated that if a black box with give and take is created, and an agreement is not reached, that applicant will go to court and the City cannot defend its position. Commissioner Swank commented that she would have to disagree as these interactions occur all the time. She stated that there needs to be a way to tailor these to work. Commissioner Petschel asked the degree Commissioner Swank believes the City can act as a glorified HOA. Commissioner Swank commented that is not what she is saying at all. Commissioner Petschel commented that this would get the City into the process of curating someone’s development process. May 28, 2024 Mendota Heights Planning Commission Meeting Page 8 of 9 Commissioner Swank commented that this would be the same give and take that occurs when considering a variance. Commissioner Petschel commented that is not as there are standards by which to consider a variance request and that is not an arbitrary conversation. Chair Field asked if the League of Cities has been consulted, as perhaps that could bring another perspective. Commissioner Petschel commented that there are a lot of things above the legality and defensibility that would be bad City policy. He stated that there are a lot of things done in the interest of the environment that can still be horrible things. He stated that this would need to be evenly applicable. Commissioner Udell referenced the 33 percent, and noted that while a number does need to be selected, there also needs to be some way to bend that towards a raw count. He commented that someone with a huge forest could do a lot more damage than a person with a handful of trees. Commissioner Swank commented that is what their formula attempts to do. Chair Field commented that the Commission will be interested in the findings on those issues expressed tonight. He stated that everyone agrees with the importance of protecting the environment but there must be objective and enforceable standards. B) DISCUSSION – ZONING CODE UPDATE Community Development Manager Sarah Madden provided an update on the process to update the zoning code and highlighted the next steps. She asked if the Commission would be open to holding a special meeting to hold the public hearing for the zoning update, potentially in mid-July. Chair Field stated that if there were no planning cases scheduled for July, the July meeting could make sense to hold that public hearing. He suggested that decision be postponed to the June meeting. Commissioner Johnson stated that perhaps something is put out to the public noting a potential meeting in July, which could then be updated once the date is known. Community Development Manager Sarah Madden noted that the last mention was in the Heights Highlights which mentioned a potential public hearing in spring. Commissioner Petschel asked if Section 12 could be passed without the completion of the environmental title. Community Development Manager Sarah Madden commented that title will need to be adopted. She stated that not every single ordinance will be pointed to and will be addressed through future code amendment. May 28, 2024 Mendota Heights Planning Commission Meeting Page 9 of 9 Chair Field confirmed the consensus of the Commission to postpone the decision on the date to the June meeting. Staff Announcements / Updates Community Development Manager Sarah Madden provided an update on Council actions related to recently considered planning cases. Public Works Director Ryan Ruzek noted the upcoming Scott Patrick Memorial 5k on June 1st. Adjournment COMMISSIONER KATZ MOVED, SECONDED BY COMMISSIONER UDELL, TO ADJOURN THE MEETING AT 8:23 P.M. AYES: 7 NAYS: 0