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PC-10-02-12 CITY OF SHOREWOOD COUNCIL CHAMBERS PLANNING COMMISSION MEETING 5755 COUNTRY CLUB ROAD TUESDAY, OCTOBER 2, 2012 7:00 P.M. MINUTES CALL TO ORDER Chair Geng called the meeting to order at 7:00 P.M. ROLL CALL Present: Chair Geng; Commissioners Charbonnet, Davis, Garelick, Hasek and Muehlberg; Council Liaison Hotvet; and Planning Director Nielsen Absent: Commissioner Hutchins APPROVAL OF AGENDA Davis moved, Hasek seconded, approving the agenda for October 2, 2012, as presented. Motion passed 6/0. APPROVAL OF MINUTES  September 18, 2012 Hasek moved, Davis seconded, approving the Planning Commission Meeting Minutes of September 18, 2012, as presented. Motion passed 6/0. 1. 7:00 P.M. CONDITIONAL USE PERMIT FOR AUTO REPAIR BUSINESS Applicants: Blair Bury, Triple B Equities, LLC Location: 24470 Smithtown Road Chair Geng opened the Public Hearing at 7:02 P.M., noting the procedures utilized in a Public Hearing. He explained if this item is acted upon this evening it will be placed on an October 22, 2012, Regular City Council meeting agenda for further review and consideration. He noted Blair Bury, representing the applicant Triple B Equities, LLC, (Triple B) is present this evening. Director Nielsen explained Triple B owns the property located at 24470 Smithtown Road. In 2001 Triple B was granted a conditional use permit (C.U.P.) to operate an auto sales business on the property. Part of the building was also used for storage of personal property. The meeting packet contains a copy of the resolution granting the C.U.P. in 2001. The applicant is asking that the 2001 resolution be revised to allow minor auto repair as a conditional use in the C-1, General Commercial zoning district in which the property is located. The property is zoned C-1 and it contains just over 40,000 square feet of area. (It used to be zoned C-3.) Mr. Bury proposes to lease part of the property and the easterly 4,000 square feet of the existing building to Jim and Jae Steinwand to operate their auto repair business. Nielsen noted the applicant has suggested deleting paragraph g from the 2001 resolution. Paragraph g stated “No repair of automobiles shall be allowed on the site.” He explained it is not that simple because CITY OF SHOREWOOD PLANNING COMMISSION MEETING October 2, 2012 Page 2 of 19 the section in the City Code that allows auto repair C.U.P. does have a list of its own conditions that must be addressed. They would have to be incorporated into a new resolution. With regard to the analysis of the case, Nielsen reviewed how the applicant’s request complies with the conditions in City Code Section 1201.22 Subd. 4.d. 1. The applicant does not propose to sell or dispense motor fuel. Sale of motor oil will be limited to oil change service. In this regard, the storage of new and used oil is subject to the requirements of the State Fire Code and should be subject to review and approval by the Excelsior Fire District. 2. There is no proposal to change the architectural appearance or functional plan of the existing building. 3. There is no change proposed for the existing site plan. The current C.U.P. allows outdoor sales of vehicles in the front of the property and it limits it to eight. 4. Drainage for the property remains unchanged. 5. The parking area in front of the property is curbed and striped per City Code requirements. 6. No change is proposed to site lighting. 7. No fuel pumps are proposed, nor should any be allowed. 8. No change in landscaping is proposed by the applicant. Staff recommends additional landscaping be incorporated along the rear yard of the property, even if it is placed inside the fence. The rear of the building is quite exposed to the Gideon Glen Conservation Open Space property and the residential uses to the north. 9. Parking and outside storage are already well screened from the view of nearby residential zoning districts. 10. The site has one driveway onto Smithtown Road and no change is proposed. 11. Signage for the property is subject to the restrictions for the C-1 zoning district which allows up to three signs, one of which can be a freestanding sign. The total area of signage cannot exceed 10 percent of the area of the building silhouette, as viewed from the street. The existing freestanding sign structure on the property is nonconforming in that the two faces are not parallel. Unless that is changed, both faces of the sign will be counted against the total allowable sign area. 12. With respect to noise, it is recommended that no service work be allowed to take place outdoors. The proposed hours (8:00 A.M. to 8:00 P.M., Monday through Saturday) should be adequate to prevent any disturbance to nearby residential development. 13. Outdoor storage should be limited to the confines of the existing fence system. In no instance should the front parking area be used for any kind of outdoor storage. 14. Future modification of the conditions of approval is not anticipated. Any such modifications would be addressed as part of code compliance issues that may occur. CITY OF SHOREWOOD PLANNING COMMISSION MEETING October 2, 2012 Page 3 of 19 15. The subject property is part of the Smithtown Crossing Redevelopment Study, which has recently been recommended to the City Council by the Planning Commission. While the proposed use is not consistent with the character of commercial development envisioned by the Study, it does comply with current zoning regulations. The Study recognizes that individual sites may develop independently. The mitigating factor in this case is that neither the site nor the building is being changed at this time. Nielsen noted that Staff recommends approving the C.U.P. and drafting a new resolution which would address the fifteen items he just reviewed. Staff also recommends approval of the C.U.P. include a requirement that a landscape plan for the rear of the property be subject to review and approval by Staff and/or the Planning Commission. Nielsen also noted that Mr. Bury and Mr. Steinwand are present this evening. Blair Bury, representing Triple B the owner of the property located at 24470 Smithtown Road, stated he has no issues with any of the items Director Nielsen spoke about other than items 8 and 11. With regard to item 11 related to signage and the 10 percent restriction, Mr. Bury explained the current total area of the two sides of the signage is 64 square feet. He thought the current signage complies with the restriction but that may depend on how the silhouette area is calculated. He noted the intent is to comply. Mr. Bury stated he was a little bit surprised by the landscaping requirement. He explained he did go to the site and try and figure out what the issue may be. He noted trees on the Gideon Glen property encroach and actually grow through the fence on the 24470 property. He explained he trims the trees and cleans them up so the fence line is clean. He extended the offer to the Public Works Department to access the dead trees by coming onto his property to trim those trees. He explained there is not a good way to plant trees inside the fence in the area behind the L-shaped that is part of the lower building. The area is filled with snow 4 – 5 feet deep during the winter if there is a significant snowfall. Nothing will survive in that area between the building and the fence. He noted there are heating and air conditioning units on one side. Therefore, there is only one corner where additional plant screening may survive. He commented that the Steinwands intend to call their business My Car Guy, LLC. Chair Geng asked Director Nielsen to comment on Mr. Bury’s idea about a natural barrier. Nielsen stated what is being proposed is close to what Staff is looking for. Nielsen noted it is thicker on the westerly half. It would be good to get something more than what is there. Nielsen stated the City can put in some plantings on the Gideon Glen property on the City’s side of his fence far enough away from the fence so they don’t encroach. Geng stated it is his understanding that the dead trees on the Gideon Glen property near the property line need to be replaced. In response to another question from Geng, Nielsen explained he would be satisfied with plantings that are a continuation of what has already been done along one side of the building. A landscape plan would need to be submitted for approval by staff to address buffering the site from Gideon Glen. Geng asked if that could be addressed in the resolution. Nielsen stated it could. Commissioner Davis asked Mr. Steinwand where they are running their business from now. Mr. Steinwand explained he operates the Midas Shop located near Highway 7 and Vine Hill Road and he has worked with that corporation for 23 years. He and his wife decided now was a good time to run their own business. Davis then asked how the Steinwands’ business will differ from Lake South Automotive on the other end of Smithtown Road. Mr. Steinwand stated he does not know what services that company offers. Davis stated it provides automotive repair. Mr. Steinwand noted that is what they will be doing also, and highlighted some of the types of repair and maintenance services they will provide. Davis asked what the lease term is. Mr. Steinwand responded two five-year terms. CITY OF SHOREWOOD PLANNING COMMISSION MEETING October 2, 2012 Page 4 of 19 Commissioner Hasek asked if the existing C.U.P. for sales of vehicles would remain in place. Director Nielsen stated the applicant is asking to retain that flexibility. Hasek stated currently there is 7740 square feet of building area and there are currently 18 stalls striped. He asked if that is adequate for that amount of space or is there additional parking being counted inside of the fence. Nielsen responded there is additional parking inside of the fence being counted, and noted that is why there is a limit of 8 cars for exterior display. Hasek stated he thought the arborvitaes planted on the east side are up against the building. He asked Director Nielsen if he suggested arborvitaes be planted in the back against the building or against the fence. Nielsen stated he wants to take a look at that, but was thinking more along the fence. Something to soften the view, not necessarily block it entirely. Hasek then stated the existing site plan shows there is a small depression along the backside of the parking on the American Legion property. He asked if that is where part of the drainage goes. Mr. Bury stated as part of the original C.U.P. there was a requirement to control the drainage on the 24470 site and have it flow back to the Gideon Glen ponding area. He explained there is no way for the stormwater to flow to that low area. Hasek went on to state that as long as the City is being asked to revise the C.U.P. he asked if the City has the right to ask the applicant to address drainage onsite if it is possible. Director Nielsen explained that if they were changing anything he would say yes, but they are not physically changing the site or the building itself. Hasek stated a new building had been built and what had been a gravel parking area is now all paved. Nielsen noted that was all taken into account as part of the original C.U.P. Hasek asked if the City has received any complaints from residents regarding noise or lighting on this site. Director Nielsen responded no. Hasek asked if the current building and site conform to all of the City’s zoning ordinances. Nielsen stated the buildings are located properly and the parking setbacks are fine. He noted the older part of the building does not comply with the construction requirements. That was grandfathered in. Hasek suggested leaving the hours of operation vague until the noise ordinance is discussed later in the meeting. Nielsen stated that could be left open. Mr. Bury stated the hours of operation proposed are the same as in the original C.U.P. He expressed his support for the hours being consistent with those in a proposed noise ordinance. Seeing no one present wishing to comment on this case, Chair Geng opened and closed the Public Testimony portion of the Public Hearing at 7:29 P.M. In response to a comment from Commissioner Garelick, Director Nielsen stated the way the property is being used and the way it is proposed to be used is not consistent with the guiding principles in the Smithtown Crossing Redevelopment Study. It is consistent with the current ordinance. Hasek moved, Davis seconded, recommending approval of the conditional use permit for Triple B Equities, LLC, for the property located at 24470 Smithtown Road to allow minor auto repair as a conditional use subject to the resolution including the fifteen items recommended by Staff and subject to a landscape plan for the rear of the property being approved by Staff. Motion passed 6/0. Chair Geng closed the Public Hearing at 7:33 P.M. CITY OF SHOREWOOD PLANNING COMMISSION MEETING October 2, 2012 Page 5 of 19 2. REDEVELOPMENT DISCUSSION - AEON Director Nielsen explained that earlier this year Councilmember Hotvet met a representative from Aeon, a non-profit developer that has done redevelopment as nearby as Chaska. He noted that James Lenhoff, a Senior Developer with Aeon, and Miranda Walker, a Project Manager with Aeon, are present this evening to make a presentation about the kind of work Aeon has been involved in and to relate it to the Smithtown Crossing Redevelopment Study. The highlights of Mr. Lenhoff’s presentation about Aeon are as follows. It has been in existence for over 25 years. It was formally known as Central Community Housing  Trust. Aeon is the Latin form of eon which means forever. Its vision is every person has a home and is interconnected within community.  Its mission is to create and sustain quality affordable homes that strengthen lives and  communities. It has just over 2100 apartment homes in its portfolio. They are on 35 different properties.  It serves more than 3500 people each year.  It was founded to replace about 300 apartment homes that were demolished to build the  Minneapolis Convention Center. Part of its philosophy is to develop buildings in such a way that they will be around for much  longer than 10 – 15 years. It takes into consideration how it will interact in the community in 100 – 150 years. It is a very long-term owner. To date it has never sold a property that it has been a part of.  The three words build, connect and forever are important to Aeon.  It chooses to use the term apartment homes to better reflect its developments are about the people  who live in them. It is interested in building long-term assets. It uses materials that have long-lasting value. It is  very careful about the design. It works with very experienced architects. It wants to build communities. Its apartments need to have a positive relationship with its  surrounding neighbors. It connects people to resources. A sizable portion of its portfolio does serve formerly homeless  individuals primarily in the Minneapolis area. That does not work for every single property. It connects with various service providers in the area when it does do that. It addresses how it connects to the community. For example, with sidewalks, bike trails and park  space. It makes sure it has the best possible landscaping that it can and that it manages stormwater. It is considerate of its transition to the neighboring properties. It is not just about looking into buildings; it is about looking outside also. It builds porches on its  first floor level apartments. It focuses on trying to control cost with the initial investment.  It has done more historic rehabilitations in the State of Minnesota than any other developer. But,  it continues to do new construction. As part of its philosophy it has three expectations of its residents. First, residents have to respect  each other both inside and outside of the building. They need to respect the building itself. Residents have to pay their rent, whatever the level of rent is. Community assets come in different forms. He displayed pictures of various developments with  most of them being for properties in the Minneapolis area. He explained a little about the properties. CITY OF SHOREWOOD PLANNING COMMISSION MEETING October 2, 2012 Page 6 of 19 Mr. Lenhoff noted that this was a downsized version of his presentation about Aeon. It normally takes about one hour. Commissioner Garelick asked Mr. Lenhoff to discuss financing. Are there investors? Mr. Lenhoff stated financing varies substantially from property to property. Some properties have as few as four funding sources. Ripley Gardens has about 50. One of the primary funding sources in Minnesota and in the Country is the Low Income Tax Credit. It is a federal program that has been around for around 20 – 25 years. The Minnesota Housing Finance Agency on an annual basis through a competitive process awards tax credits. Those tax credits are sold to a private investor who becomes the primary equity provider for the project. The provider provides the equity and they get a tax credit on their corporate balance sheet. Mr. Lenhoff stated the definition of affordable housing can be different for the Metropolitan Council, the State and the federal government. He reviewed different criteria that help properties get classified as affordable housing. Commissioner Garelick asked Mr. Lenhoff if he is saying there is a difference between affordable housing and subsidized housing. Mr. Lenhoff stated it is more about terminology versus actual difference. He explained that for example when there is what can be called a tax credit project there isn’t any subsidy. He noted that Aeon can never have rents above a certain level for those projects unless incomes go up. He explained that there are a couple of different types of Section 8 housing. At Clover Field Marketplace in the City of Chaska there are 15 project-based Section 8 vouchers. That means there are 15 apartment homes where through a different funding source residents do get a monthly subsidy so they are not paying more than one third of their income towards rent. Commissioner Garelick then asked if Aeon’s operation is similar to Pride In Living. Mr. Lenhoff responded yes. Mr. Lenhoff stated for Aeon it is not so much about the individual funding program. It’s about making sure that what it is providing is affordable for a range of incomes. He then stated it is Aeon’s goal that no matter who is living in the building it should be a high quality place for people to live. He noted that it is critical to have good management for a complex. People from Aeon are always involved with property management in some capacity. In response to a comment from Commissioner Hasek, Mr. Lenhoff explained Clover Field Marketplace opened in 2008. It has 117 apartment homes spread between three buildings. There is a mix of studio, one bedroom, two bedroom and three bedroom homes. There is a landscaped courtyard, a community room, a fitness room, a playground, about 120 underground parking spaces and 7,500 square feet of commercial space. Where possible Aeon tries to avoid surface parking. It is across from the elementary school. It is connected to sidewalks and trails. He displayed photographs of the three buildings and explained a little about them both on the inside and outside. The affordable and subsidized homes are intentionally intermixed; the apartment homes are all the same. Aeon believes everyone should feel good about where they live and they should not be singled out. Mr. Lenhoff reviewed some facts about Clover Field Marketplace. A one bedroom home is slightly less than 700 square feet in area. A two bedroom is slightly more than 1,000 square feet. A three bedroom is approximately 1,160 square feet. It is currently approximately 97 percent occupied. He noted a recent market study shows vacancy rates at less than 2 percent in the southwest metropolitan area, and there are no three bedroom apartments in the Excelsior area. CITY OF SHOREWOOD PLANNING COMMISSION MEETING October 2, 2012 Page 7 of 19 Commissioner Garelick stated he appreciates Aeon’s contribution to rejuvenating communities. Something he thought Shorewood needs. Mr. Lenhoff stated Aeon is going to be having a ground breaking for its next building in Chaska at 4:00 th P.M. on October 4 in downtown Chaska. That building will be an all senior building. He noted that one of the reasons Chaska and Aeon wanted to work together is because there are a lot of single-family homes in Chaska. As home prices were on the rise in 2006 a lot of people were being forced out or wanted to move out of their single-family home, but there was nowhere to go while remaining in Chaska. Clover Field Marketplace provided that transition. It also provided a place for those who could not afford to purchase a single-family home in Chaska. Commissioner Davis asked where the new building in Chaska will be located. Mr. Lenhoff stated it will be downtown Chaska. The building will have 54 one-bedroom apartments for people 62 years of age or older. The primary funding source is through a HUD program that does provide an ongoing subsidy. He noted there are many, many seniors living on just social security. He stated this building would make sure some seniors would have a high quality place to live independently. He then noted that HUD program will not be funded after this year. That HUD program has produced about 400,000 apartments for seniors over the last 40 years. As of now HUD has no more funding to keep going. Chair Geng asked Mr. Lenhoff if he is familiar with the Smithtown Crossing Redevelopment Study. Mr. Lenhoff responded he did read it. Geng stated the purpose of the Study is to try and guide the future development of the Study Area. Geng then asked Mr. Lenhoff if he had any thoughts about things the City and Planning Commission should consider. Mr. Lenhoff stated he thought it important that the community has been working on this and knows that something will need to be done eventually. He expressed his support for the Guiding Principles outlined in the Study. Mr. Lenhoff explained what makes some developments difficult are the ability to make them economical. There can also be diversity when it comes to the size of projects. He thought there is a need for both flexibility and predictability for developers. Developers don’t want to put a lot of time and money into a design only to find out that is not quite what a community is looking for. There is a need for specificity while not being overly rigid. Mr. Lenhoff explained that for Aeon a project has to be of a certain size to make it work. For Aeon that would be 50 – 100 apartments, depending on location, of varying sizes depending on a community’s need or the funding sources. He noted that earlier in his career he was a city planner so he has worked with a lot of city ordinance design standards. He stated he did pick up on the possibility of mixed use in the Study, and he noted that Aeon has about 40,000 square feet of commercial space. He explained that mixed use is not Aeon’s favorite thing to do. Aeon is an expert in affordable homes; not commercial space. Also, mixed use is very difficult to do from a financial perspective because a lot of Aeon’s funders don’t want to underwrite that. That is where communities may want to get involved and help facilitate it somehow because it is an important community goal. Mixed use, if stacked, is very difficult to do in projects. Not so much so if it is not stacked. He noted that Aeon does not want to end up in a position where apartment homes are supporting commercial space. He expressed his strong support for a unified development plan recommended in the Study, and he thought the community would be happier with the results. He stated it is great when properties can share things such as parking and stormwater management responsibilities. CITY OF SHOREWOOD PLANNING COMMISSION MEETING October 2, 2012 Page 8 of 19 Mr. Lenhoff noted funding support for senior housing is very difficult at this time. He then noted the tax credits he referenced earlier cannot be used for senior housing; it is against policy. He explained seniors can live there, but it cannot be seniors only. He stated he thought it important to have a mix of housing for seniors and for families. He then stated the Study referred to tax increment financing (TIF) and there are pros and cons to a community offering that incentive. He thought having a policy in place about TIF ahead of time would be valuable for developers to know one way or the other. Chair Geng thanked Mr. Lenhoff on behalf of the Planning Commission and the City of Shorewood for spending time with the Commission this evening. He stated he thought what Aeon has done is tremendously exciting. He wished Mr. Lenhoff and Aeon the best going forward. Mr. Lenhoff noted that as a non-profit organization Aeon has a commitment to communities to help educate communities about affordable housing developers. He extended an offer to people to contact him if they would like additional information or clarification of information. Discussion moved to Item 4 on the agenda. 3. DISCUSS TRAILS This was discussed after Item 4 on the agenda. Director Nielsen stated on Thursday, November 15, 2012, there will be an open house at the Minnewashta Elementary School from 6:30 P.M. – 8:00 P.M. to present the feasibility study report for the trail segment from the Shorewood/Victoria border to the Minnewashta Elementary School (Smithtown West) and from the School to the LRT Trail. The Planning Commission will front that meeting. He noted Council directed the Commission to do that earlier this year. He explained that WSB & Associates will prepare the report and it will presumably identify barriers and obstacles, easements needed and costs. The regular open house format for the meeting will be followed. He noted that representatives from WSB will be at the open house to lead people through things. In response to a comment from Commissioner Davis, Director Nielsen explained the feasibility study report will talk about all the aspects of the project. Council Liaison Hotvet noted that along with representatives from the City, Planning Commission and WSB there will be representatives from the Minnetonka School District, Hennepin County, and Three Rivers Park District. She explained the intent is to have all agencies involved be part of the supporting team. The School District will help with communicating various aspects of this potential project, to reaffirm safety concerns and to explain drop-off traffic issues. The open house will kick this off in a very positive way. She stated this will not be about the City standing alone to get critiqued. She then stated the open house will not involve presentations; it should be very informal. She noted there is a concert that evening so there should be a lot of parent traffic. She stated the intent is to convey this as a collaborative effort among agencies. She noted Hennepin County will have two senior planner/designer people present. Director Nielsen stated a notice will be sent out to the members of the Trail Committee asking them to attend. He then stated the Trail Implementation Plan suggests rallying support each time a trail segment is considered and the intent is for the Committee to do that. Council Liaison Hotvet noted that the agencies offer funding sources. CITY OF SHOREWOOD PLANNING COMMISSION MEETING October 2, 2012 Page 9 of 19 Director Nielsen noted agency funding can dictate the standard. Chair Geng noted that because the next regularly scheduled Planning Commission meeting is on election night there will not be a meeting that evening. That means the Commission will not meet again before the open house. Director Nielsen agreed. Council Liaison Hotvet stated Engineer Landini wanted the feasibility study report to go to the Planning Commission before the open house. She noted that it would be tweaking an existing feasibility study. Chair Geng stated he assumes the Planning Commission’s role that evening will be one of listening. Council Liaison Hotvet stated Engineer Landini will have something up on the smart board at the open house. In response to a comment from Commissioner Hasek, Council Liaison Hotvet explained the report will talk about one design and the design will match that of the trail in Victoria that ends at the border with Shorewood. Director Nielsen asked the Planning Commission if it thinks it needs to have a meeting between now and th November 15 to talk about the feasibility study. th Council Liaison Hotvet highlighted why the open house is scheduled for November 15. Chair Geng stated if the Planning Commissioners’ role is just to be listeners he did not think there is a need to meet before the open house. Discussion moved to Item 5 on the agenda. 4. ZONING CODE DISCUSSION  Noise Director Nielsen noted that in some ways the City’s noise ordinance is somewhat vague. Noise is addressed from the standpoint of Minnesota Pollution Control Agency (MPCA) requirements. It typically is a sustained noise which can be measured in decibels so enforcers can get after people for exceeding the daytime and nighttime decibel ratings. It does not address some of the routine noise disturbances. He explained in the past the City has quite frankly ducked doing a noise ordinance. With respect to construction, the City has operated under the premise that whatever was imposed for a builder was imposed on a resident. Nielsen explained the City currently operates on a policy (relative to construction activities) that restricts noise-making activities to the hours of 7:00 A.M. to 7:00 P.M. on weekdays, 8:00 A.M. to 6:00 P.M. on Saturdays and no construction noise on Sundays. This has been relatively effective, especially with professional builders. Professional builders are informed that if the City has to respond to complaints about working outside of those hours it tends to result in the City’s inspection schedule being slowed down. Construction noise generated by residential homeowners is usually dealt with by neighbors. It is usually short lived. The City does have a very vague nuisance ordinance. Because there is no measurable standard it is difficult to enforce. CITY OF SHOREWOOD PLANNING COMMISSION MEETING October 2, 2012 Page 10 of 19 Nielsen stated during review of the general provisions section of the City’s Zoning Code the Planning Commission decided it would be prudent to review a sample of other cities’ noise ordinances. That review would help in determining if it is time for Shorewood to adopt its own noise ordinance. Staff did provide the Commission with copies of ordinances for several southwest area communities. Staff developed a draft noise ordinance based on what it considered the best components of the ordinances it reviewed. A copy of that draft is included in the meeting packet. He noted some of the hourly restrictions on certain operations included in the draft ordinance were taken from the sample ordinances. He explained the City of Excelsior conducted a noise ordinance survey to find out what the hour restrictions are for other communities. A compilation of the findings is included in the meeting packet. Nielsen then stated he thought the Planning Commission should discuss if the draft ordinance is addressing the problem areas. If so, then the Commission should next discuss what standards should be included in the ordinance and what activities should be regulated. He commented that at least one ordinance reviewed mentioned parties/large gatherings of people. He noted the City has not had much of an issue with that and that the police department fairly effectively handles them. Nielsen explained the draft noise ordinance attempts to address construction activities (the hours are consistent with the City’s current Code), recreational vehicles, domestic power equipment (e.g., lawn mowers, chain saws, leaf blowers, etc.), and refuse hauling (the hours are consistent with the City’s refuse hauling ordinance). The hours for recreational vehicles and domestic power equipment are up for discussion. He noted there is some optional language on hourly restrictions relative to residential construction regarding hours on Sunday. Staff is waiting to hear back from the city attorney as to whether or not the City can have different restrictions for residential than commercial construction. He explained there is an exemption section in the draft ordinance related to emergency work. There is also an exceptions section. He stated Staff modeled the draft ordinance to a large extent after Excelsior’s ordinance. In response to a question from Chair Geng, Director Nielsen stated the intent of this ordinance is to establish noise standards where there aren’t any in the nuisance ordinance. Geng stated he thought he heard Nielsen say the police department is comfortable with the City’s current nuisance noise ordinance for controlling large gatherings/parties. Geng asked if this noise ordinance would be in addition to the nuisance noise ordinance. Nielsen responded it would be in addition. Geng then asked Nielsen if he has verified that there are not any inconsistencies between this draft ordinance and the nuisance noise ordinance. Nielsen stated he did not think there are any inconsistencies. Director Nielsen explained that with regard to enforcement what will likely happen is rather than the police writing a ticket on the spot the police will provide the City with a police report on a call it made related to noise. The City will then write a notice informing the individual of the ordinance regulations. If the noise ordinance is violated again it can be handled through an administrative penalty. It is important that the police have some standard to enforce. Nielsen noted that nuisances are currently addressed in Chapter 501 in the City Code. The suggestion is to put the draft noise ordinance into Subd. 20 of the Zoning Ordinance. Commissioner Hasek stated Subd. 20(a.)(1) states for recreational vehicles “… operate any minibike, snowmobile, or other recreational vehicle not licensed for travel on public highways.” He asked what difference it makes if it is licensed or not. Nielsen explained this is directed for recreational vehicles operated on private property; automobile standards are already in place. Nielsen stated he thought the hours of operation (no operation between 9:30 P.M. and 7:30 A.M.) are too generous. Hasek agreed. CITY OF SHOREWOOD PLANNING COMMISSION MEETING October 2, 2012 Page 11 of 19 Hasek suggested adding an exception under application related to notification of abutting residents within a certain number of feet of the property of origin of the noise. Council Liaison Hotvet noted the City already has a 10:30 P.M. restriction for noise, bands and so forth. Director Nielsen stated it is part of special event permits required for 75 or more people. Hasek asked what a Class A offense is. Director Nielsen responded it is a penalty of $100. Council Liaison Hotvet stated she could not recollect if any sound or environmental nuisance related questions were asked in the relatively recent resident survey. Director Nielsen stated he did not remember either. Commissioner Davis stated this is based on the assumption that police respond when they are called, noting she feels compelled to make this comment during every discussion. Chair Geng stated he thought there would be benefit to try and have the City’s hours of operation for recreational vehicles close to or the same as those of the neighboring communities. That could be helpful with enforcement. Jim Daughton, 5935 Hillendale Road, stated he likes the idea of what the Planning Commission is trying to do. But, in his neighborhood they have a problem. He explained that his neighbor built his own off- road track around his yard and house. The neighbor has motocross bikes and motorcycles that he jumps. He has a side-by-side. The neighbor will ride the track for 3 – 4 hours at a time. He noted he does not deny anyone having fun for an hour or two. But, waking up at 7:00 A.M. to that going on and on and on gets old. He stated he and his neighbors would greatly appreciate anything that can address that issue. He noted the neighbors have spoken with that individual but it has made no difference. He stated the neighbor believes he has the right to do what he wants to do on his property. He then stated he and his neighbors have had discussions with that particular neighbor about his boombox radio which that individual will play for 2 – 3 hours. When asked to be quiet that neighbor ignores the request. Commissioner Garelick asked Director Nielsen if that resident would be breaking any current laws. Nielsen responded vaguely the nuisance ordinance. Unfortunately, there is no standard to apply to it. Commissioner Davis stated in her neighborhood there has been an explosion of recreational motorized things that children are getting. Children are riding those things on the street. She lives on the dead end of a street and the amount of traffic from those things is like there is a racetrack. She noted Mr. Daughton is not speaking about an isolated issue. She commented you have to have traffic control to back out of driveways on the weekend. Mike Pierro, 5880 Christmas Lake Road, stated depending on where a person lives there will be a need to empathize with people who do have these problems. He noted that the person Mr. Daughton was speaking about also has three snowmobiles. He stated if a person lives on a property that is 120 feet wide and it [the house] only takes up 50 feet of that it that would leave 35 feet on each side. Currently when the vehicles are being driven around the track they are right next to the neighbors. He commented that mufflers seem to be optional. He stated no one likes government intrusion less than he does. But, if what someone is doing is infringing on other peoples’ rights then something needs to be done. The impacted residents have a right to be outside on their decks. He then stated he can support the 7:00 A.M. start for construction if someone is constructing a home. There is no need to have to start a power tool such as a leaf blower at 7:00 A.M. The 8:00 P.M. finish is doable, but not preferable. It would be nice to enjoy a meal on your deck. He commented there is a lot of remodeling going on. He questioned tying all recreational vehicles CITY OF SHOREWOOD PLANNING COMMISSION MEETING October 2, 2012 Page 12 of 19 together. He stated he can understand why there may be a desire to have the hours of operation for snowmobiles similar to neighboring cities. He noted he has vehicles traveling as close as 30 feet from his home, and that is different than if a person has a five-acre property. He stated he is aware that some cities have different standards for properties that are five acres in size for example. He asked the Planning Commission to consider those that are in the situation he and his neighbors are. Chair Geng clarified that this is not something the Planning Commission is going to act on and recommend to the City Council this evening. The Commission is discussing a draft ordinance and it is making a concerted effort to recommend the right thing for the City. He explained before the Commission would take a vote to recommend something to Council it would have to hold a public hearing on the ordinance once it is close to being finalized. He encouraged the members of the public interested in this ordinance to attend the public hearing. He stated the input being provided this evening is very helpful. Debbie Rand, 5885 Hillendale Road, noted her property abuts the property being discussed. She expressed her agreement with what Mr. Daughton and Mr. Pierro have spoken about. She stated she has two bedrooms and a living room that are within ten feet of the track on her neighbor’s property. The vehicles on the track are very noisy and intrusive for her. She noted that she works out of her home. She explained there have been times when she has had to close the door and stop working because of the noise from the motorized vehicles. She stated that she has lived in Shorewood for about 31 years. Her current home is her third home in the City. This is the second time she has had the track issue. She explained that in addition to having her neighbor or other residents in that home driving all of the vehicles they invite friends from outside of the community who sometimes bring their own vehicles. At times there were eight additional vehicles that did not belong to the neighbors on the track. She stated she understands it is difficult to enforce, noting that she had worked for the City of Chanhassen as a community service officer and part of her job was to enforce those types of ordinances. But, she also knows that it can be done. Chair Geng asked Ms. Rand to explain how it can be enforced. Ms. Rand stated for her it was her job and if she needed some extra reinforcement she would have the Sheriff’s Department come help her or get them involved. Ms. Rand stated that in Shorewood it is a little more difficult because there are one or two police officers on at a time and they can get tied up doing other things. When you call them they are not always able to respond and that is understandable because of their priorities. She apologized in advance for not knowing if the South Lake Minnetonka Police Department (SLMPD) has a community service officer and clarified she is not suggesting an increase to the SLMPD budget. She stated if the SLMPD is responsible, she asked if there is a way to get them to be more responsive and come out to this neighborhood site because it is a big problem to the residents in this neighborhood. She noted it was a big deal in the other neighborhood she lived in. Chair Geng stated the way the Planning Commission perceives the problem with noise for the police department is the standard the City currently has in place is very vague. He clarified that when he asked Ms. Rand “how” a moment ago he was really asking about the standard; a community standard. He noted the standard is what the Commission is grappling with this evening. He thanked those people in the audience for coming and letting the Commission know how big of an issue this is to them. Ms. Rand stated she was responding with an assumption that the ordinance was going to be changed to be more stringent than and not as abstract as it currently is. The ordinance needs to have some bite to it. Commissioner Muehlberg stated that from his perspective this issue does not sound so much like the noise ordinance as it does the nuisance ordinance. The one neighbor has a continuing disrespect for the other neighbors. CITY OF SHOREWOOD PLANNING COMMISSION MEETING October 2, 2012 Page 13 of 19 Chair Geng stated from his vantage point and a public policy standpoint one of the problems is the SLMPD officers do not think City’s current nuisance ordinance is sufficient. There is not enough for them to take action. He expressed concern that what is being considered this evening is good but it does not address the particular problem the residents are presenting. Director Nielsen expressed his agreement with that statement. Director Nielsen stated the police have been called out to the site and have gone out there, but by the time the officers get to the site the noise is gone. He does not know how the residents are alerted to the police coming. It is his understanding that the police have made the attempt to deal with this. He noted the draft noise ordinance does not get at this type of issue. He stated the issue is an activity kind of violation as much as a noise violation. Law enforcement has gotten after the individual the residents are speaking about this evening for a violation related to a recreational fire permit. The individual quit doing it for a time and then started having fires that were too large and by the time the firefighters got to the site the fire was within regulation. The individual will go from one annoyance to another to simply bother his neighbors. He then stated he could almost guarantee that if he went to that individual’s site with the noise meter to measure noise against MPCA standards the noise would not register on the meter. Commissioner Davis suggested getting rid of the noise meter. She stated the neighbors need to have the noise meter. She then stated the City gives permits for swimming pools; it wants to know how residents put in jungle gyms, play systems, fences; it monitors how animals are taken care of; it permits raising chickens; it monitors how stormwater is being managed; and, so forth. She asked if there is something that could be looked into with regard to what that individual has done with his structures, grading, ramps and things. Director Nielsen stated the individual rides around his yard. He noted there are other places where that same thing is done. He explained there is a one-acre property on Eureka Road where the property owner road around in circles. He then explained the draft ordinance would get at the early morning and hours late in the day. But, if the individual wants to ride his motorized machines for four hours during the day the ordinance does address that. Commissioner Davis stated she had been informed that there could not be a motorcycle race trace at Arctic Fever because the emissions would be too high if there were over six bikes. Director Nielsen stated he could not imagine how that could be measured. Ms. Rand stated when she was working in Chanhassen (noting that was a number of years ago) just about every violation of its nuisance/noise ordinance was a misdemeanor. If she wrote a citation there was a court appearance. She clarified she is not suggesting the city clog up the court system. She stated she thought it is imperative that there be some sort of consequence. She then stated when a person repeatedly violates there has to be a consequence more than just asking a person to, for example, turn their music down. Commissioner Hasek suggested getting a copy of Chanhassen’s ordinance to see what standards it contains. Director Nielsen stated he had previously provided the Planning Commission with a copy of that ordinance. Director Nielsen asked Ms. Rand if Chanhassen had a restriction or prohibition on the use of recreational vehicles other than the noise ordinance. Ms. Rand stated she worked there 20 years ago. Ms. Rand explained back then there was not much of a problem with recreational vehicles. There was a snowmobile here or there. But, people did not have the volume of recreational vehicles they have today. CITY OF SHOREWOOD PLANNING COMMISSION MEETING October 2, 2012 Page 14 of 19 Commissioner Davis asked Ms. Rand how big the lots are in her neighborhood. Ms. Rand stated the troublemaker’s lot is two acres, noting it is a long strip. The properties are of different sizes. She then stated six properties abut the troublemaker’s property. Mr. Daughton stated the long strip lot is in the middle and all of the noise on his property is heard by the neighbors of that property, and the owner of that property thoroughly enjoys it. It was reiterated that the individual keeps his neighbors as prisoners in their homes. Chair Geng stated it is his perspective that the issue being discussed is not a noise problem, while noting that he understands that the noise must be intolerable. The primary problem is a behavioral problem. He then stated he has no idea how to draft an ordinance to prohibit the type of activity that individual is engaging in yet still have the ordinance be acceptable of the rest of the community. He noted he does not think this problem can be legislated. He then noted that he does not think the Planning Commission and City should turn their backs on the problem in that neighborhood. It needs to be addressed, and noted that he cannot stress that strongly enough. But, he is unsure if it could be addressed with a noise ordinance. He explained that the ordinance’s intent is to address certain rational normal behavioral activities. It is to establish standards for the community so someone is not, for example, starting their domestic power equipment at 6:00 A.M. on a Sunday morning. It would give police something to rely on. It is to restrict someone from starting their equipment later in the morning. He stated there has to be some solution albeit he does not know what it is. He then stated the Commission, City Council and City all need to be working together to decide what can be done to address this issue. Mr. Pierro asked where it is reasonable for something noisy like a snowmobile to be in operation after 7:00 P.M. Is it reasonable on private property next to you except when coming off a lake or coming from ice fishing? He stated there is a trapping ordinance which prohibits a person from live trapping in the City except if it is for nuisance animals. He asked if it is possible to craft a noise ordinance that will pinpoint where the problem is and is not. The exception would be from a reasonable time in the morning and to a reasonable hour in the evening. He stated he thought it would be possible to craft a noise ordinance that would address this type of problem while allowing for things such as snowmobilers coming off of the lake after ice fishing. Commissioner Hasek stated that Chair Geng has been saying that the Planning Commission is not sure how to craft such an ordinance. Director Nielsen stated that he does think the Planning Commission and Staff can do what Mr. Pierro is talking about in terms of confining the hours. He noted that is what all of the sample noise ordinances do. He stated he thought the exceptions for things such as four wheelers or snowmobilers coming off of the lake are reasonable. The problem is no matter how the hours are confined the individual being talked about will be able to operate his motorized vehicles all of those hours. Chair Geng reiterated this is a behavioral problem more than it is a noise problem, noting that the individual’s behavior generates a lot of noise. Commissioner Hasek stated that maybe it is not the level of the noise as much as the duration and continuousness of the noise. Chair Geng stated when the noise is confined to an area such as a yard it is almost stationary noise when it goes on for hours. CITY OF SHOREWOOD PLANNING COMMISSION MEETING October 2, 2012 Page 15 of 19 Council Liaison Hotvet asked if anyone has spoken to the police department to find out what they would need to address this particular behavior. Director Nielsen stated Excelsior has had good luck with its ordinance with the SLMPD. He noted the SLMPD does not write tickets for Excelsior. The SLMPD provides Excelsior with a police report and then Excelsior addresses the enforcement. He stated that is what is being suggested for the City as well. He noted that currently the City has nothing; it is just a nuisance. There is no way to write a ticket for that without a standard. Nielsen suggested looking into that activity issue. He stated if an ordinance were written to stop the individual being talked about no one in Shorewood would be able to do anything. He commented that the individual does things to irritate his neighbors. Chair Geng stated that just because it may not be able to address the issue being discussed in this noise ordinance it does not mean that the Planning Commission does not understand the issue, or that it does not care or that there is not something else that can be done. He expressed doubts that the ordinance is the way to address it. He agreed with Director Nielsen’s comment that the ordinance should not be so restrictive that the rest of the residents in the City rebel about it. He encouraged the residents to think about this some more and come back to the Planning Commission with other ideas. He stated when he was a first-year law student he was taught that property rights were a bundle of sticks. One of the sticks people enjoy no matter where they live is the right to quiet enjoyment of their home. These residents’ rights are being violated and he feels strongly about that. He expressed hope that there is something the City can do going forward. Director Nielsen stated the draft ordinance suggests that domestic power equipment can be operated between the hours of 7:30 A.M. and 9:30 P.M. on any weekday. Commissioner Hasek stated he would be okay with a 7:00 A.M. start time and 7:00 P.M. end time. Mr. Daughton stated a chain saw and a wood chipper make a different amount noise than a lawnmower. He then stated snow blowers may need to go all night to allow people to clear out their driveway. Director Nielsen clarified the ordinance exempts snow blowers. Chair Geng stated from his perspective a 7:00 A.M. start is too early on weekends. Council Liaison Hotvet stated she thought a 7:00 P.M. end time on weekdays is too early. Chair Geng agreed with that, particularly in the summer. Director Nielsen noted that Tonka Bay’s weekday hours are from 7:00 A.M. to 8:00 P.M., Chanhassen’s and Mound’s are from 7:00 A.M. to 9:00 P.M., and Deephaven’s is from 7:00 A.M. to 9:30 P.M. Commissioner Charbonnet suggested considering a time that starts a certain amount of time after sunrise and ends a certain amount of time after sundown. Commissioner Hasek stated maybe the hours could vary on a schedule based on when daylight saving time starts and ends. Chair Geng stated the types of domestic power equipment are primarily operated in the warmer weather months. Therefore, he does not think the winter months are a huge concern. CITY OF SHOREWOOD PLANNING COMMISSION MEETING October 2, 2012 Page 16 of 19 Mr. Pierro asked what the purpose of a noise ordinance would be. He stated he assumes it would be to allow quality of life for others around the person making the noise. With that in mind from his perspective that answers the questions about time. He then stated he too worked 12-hours days yet he found time to mow his lawn at night or on the weekend. He questioned the need to extend the hours of operation for that purpose. He stated if the reason for the ordinance is to restrict the noise for neighbors he would not like the noise at 9:00 P.M. or 9:30 P.M. There are people who go to bed at 9:00 P.M. Chair Geng stated many people like to spend time on their decks in the evening and they may not want to hear someone operating their power tools. It is not just a matter of sleeping. Commissioner Hasek stated the time varies by person. Chair Geng added and by season. Commissioner Hasek asked Director Nielsen to clarify the first paragraph of Subd. 20. Director Nielsen read what it states which is “Noise. The purpose of this section is to protect the comfort, repose, restrictions on the hours during which significant sources of noise may be health, peace, safety, or welfare of city residents, and the quiet enjoyment of property within the city, by imposing reasonable used or operated.” Nielsen stated it needs to be rewritten. Commissioner Garelick stated the issue being discussed this evening is about behavioral problems. It is about people who are antisocial. They disrespect the neighbors around them and seem to believe the world revolves around them. He then stated that the previous week a friend of his was murdered while at work by an employee who was terminated earlier in the day. He went on to state that contacting people who are so antisocial will have to be done when police are present so things do not escalate. He noted that he thought it prudent to be cautious when doing something to someone. Director Nielsen stated from his perspective the necessity for operating a recreational vehicle is not the same as either construction or operating domestic power equipment. There could be more restriction for recreational vehicles and identify allowances for things such as vehicles leaving the ice. With regard to domestic power it comes down to what makes the most sense for people. He indicated that he thought a 7:00 P.M. end time is too early, noting that he has mowed his lawn at 8:00 P.M. He stated he thought 9:00 P.M. would be too late to still be mowing the lawn. Commissioner Hasek stated his neighbor will mow the lawn around 6:30 P.M. or so just when he and his wife are sitting down on their deck to eat dinner. He noted it irritates them. He stated his neighbor has the right to do that. He then stated there are the construction workers who are working as late as they can and then they have to do their outside chores within restricted hours. That has to be taken into consideration. Director Nielsen stated the hours are quite subjective. He asked what time children go to bed. Commissioner Muehlberg stated he lives on a 78-foot-wide lot and there are people mowing lawns around him and that does not bother him a bit. But, if someone is using a chain saw a block and a half away it annoys him. He questioned how much noise a power hedge clipper makes. He suggested setting certain hours from June 1 to September 15, for example. Commissioner Davis asked the Commissioners to give their times for Monday – Friday, Saturday and Sunday. Commissioners Muehlberg suggested 7:30 A.M. – 8:00 P.M. Monday – Friday, and 9:00 A.M. – 8:00 P.M. Saturday and Sunday. CITY OF SHOREWOOD PLANNING COMMISSION MEETING October 2, 2012 Page 17 of 19 Chair Geng stated he could live with the hours Commissioner Muehlberg suggestion. Commissioner Hasek suggested 7:00 A.M. – 7:00 P.M. Monday – Friday, and 8:00 A.M. – 6:00 P.M. Saturday, Sunday and holidays. Commissioner Garelick suggested 7:30 A.M. – 7:30 P.M. every day of the week. Commissioner Charbonnet suggested 7:30 A.M. – 9:00 P.M. Monday – Friday, 8:00 A.M. – 7:00 P.M. Saturday, and 9:00 A.M. – 6:00 P.M. Sunday. Commissioner Davis suggested 7:00 A.M. – 8:00 P.M. Monday – Friday, 8:00 A.M. – 8:00 P.M. Saturday, and 9:00 A.M. – 8:00 P.M. Sunday. Commissioner Davis stated she does like a May – September window. Commissioner Hasek stated he will mow as early as April. There was Planning Commission consensus for the hours of operation for domestic power equipment to be from 7:30 A.M. – 8:00 P.M. Monday – Friday, 8:00 A.M. – 8:00 P.M. Saturday, and 9:00 A.M. – 8:00 P.M. Sunday. Director Nielsen asked if those hours would apply to recreational vehicles as well. He noted Excelsior uses the same hours for domestic power tools and recreational vehicles. He reiterated that he thought the exceptions for motorized vehicles coming and going off of the lake for ice fishing make sense. Chair Geng noted there are a lot of snowmobiles coming on the islands because they are surrounded by water. He then noted that hearing snowmobiles at 10:30 P.M. or later is intolerable. He commented that a lot of people want to snowmobile late at night. Geng suggested 7:30 A.M. – 9:30 P.M. for recreational vehicles. He commented he did not think Shorewood is going to regulate snowmobile use on the lake, noting Shorewood is one of many communities around Lake Minnetonka. And, snowmobilers have to get to and from a lake. Mr. Pierro commented not legally. Geng stated he thought if snowmobiles are cut off too early in the evening it would create an enforcement problem. There aren’t a lot of police resources in this community. Geng noted that he is philosophically opposed to legislation that breeds contempt and that people are not going to observe. Director Nielsen suggested reviewing the City’s snowmobile ordinance because he thought it talks about using the roads to get to and from a lake or to and from a trail. If that language is incorporated in the ordinance it would say a snowmobile could get to and from the lake and there would be no harm. But, if they were running circles in their yard it would not be allowed outside of the hours of operation that would not be allowed because they are not on the way to the lake. He will assess incorporating that provision into the ordinance. Chair Geng suggested that language be for all recreational vehicles. Director Nielsen noted that he thinks 9:30 P.M. is pretty late to be running a snowmobile around in circles on private property. Commissioner Muehlberg stated snowmobiles can be on Lake Minnetonka all night. CITY OF SHOREWOOD PLANNING COMMISSION MEETING October 2, 2012 Page 18 of 19 Director Nielsen stated he will review the snowmobile ordinance to see what language can be incorporated into the noise ordinance to help with the hour restrictions. Chair Geng recommended there be exceptions for emergency reasons and bad storms. When power lines and/or trees are down snowmobiles are the only way people can get off the islands. Director Nielsen stated that earlier he stated this ordinance would become part of the Zoning Ordinance. That is incorrect. It will be added as Subdivision 20 to Chapter 501.05 Nuisances Affecting Peace and Safety. Discussion returned to Item 3 on the agenda.  Zoning Permits This was not discussed. 5. MATTERS FROM THE FLOOR This was discussed after Item 3 on the agenda. There were no matters from the floor presented this evening. 6. OLD BUSINESS There was no old business for discussion. 7. NEW BUSINESS Commissioner Garelick expressed his thanks to the sixteen members of the Excelsior Fire District (EFD) who came to help the residents at Shorewood Ponds ensure their smoke detectors were in working order. They also handed out brochures to people on how to protect themselves. 8. DRAFT NEXT MEETING AGENDA Director Nielsen stated there will be a minor subdivision and more discussion about the noise issue on the November 20, 2012, Planning Commission meeting agenda. 9. REPORTS • Liaison to Council None. • SLUC None. CITY OF SHOREWOOD PLANNING COMMISSION MEETING October 2, 2012 Page 19 of 19 • Other None. 10. ADJOURNMENT Hasek moved, Garelick seconded, Adjourning the Planning Commission Meeting of October 2, 2012, at 10:01 P.M. Motion passed 6/0. RESPECTFULLY SUBMITTED, Christine Freeman, Recorder