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PC-04-07-15 CITY OF SHOREWOOD COUNCIL CHAMBERS PLANNING COMMISSION MEETING 5755 COUNTRY CLUB ROAD TUESDAY, APRIL 7, 2015 7:30 P.M. MINUTES CALL TO ORDER Chair Geng called the meeting to order at 7:37 P.M. ROLL CALL Present: Chair Geng; Commissioners Bean, Davis, Johnson and Maddy; Planning Director Nielsen; and Council Liaison Labadie Absent: None APPROVAL OF AGENDA Because Attorney Keane left the building Director Nielsen suggested Item 3 be postponed to a future meeting. Maddy moved, Davis seconded, approving the agenda for April 7, 2015, as amended. Motion passed 5/0. APPROVAL OF MINUTES  February 3, 2015 Davis moved, Maddy seconded, approving the Planning Commission Meeting Minutes of February 3, 2015, as presented. Motion passed 4/0/1 with Bean abstaining due to his absence at the meeting. Chair Geng noted the Planning Commission is comprised of residents of the City of Shorewood who are serving as volunteers on the Commission. He introduced new Planning Commissioners Bob Bean, who had been the Mayor at one time, and Pat Johnson, who recently moved to Shorewood. He also introduced Planning Commissioners Sue Davis and Dustin Maddy and himself. 1. PUBLIC HEARING – CONDITIONAL USE PERMIT FOR TWO HOUSES TEMPORARILY ON ONE LOT Applicant: Todd Cebulla Location: 5530 Vine Hill Road Chair Geng opened the Public Hearing at 7:43 P.M., noting the procedures used in a Public Hearing. He explained the Commissioners are appointed by the City Council. The Commission’s role is to help the City Council in determining zoning and planning issues. One of the Commission’s responsibilities is to hold public hearings and to help develop the factual record for an application and to make a non-binding recommendation to the City Council. The recommendation is advisory only. He noted that if the Planning Commission makes a recommendation this evening this item will go before the City Council on April 27, 2015. He stated this evening the Planning Commission is going to consider a conditional use permit (C.U.P.) application for two houses on one lot for Todd Cebulla, 5530 Vine Hill Road. CITY OF SHOREWOOD PLANNING COMMISSION MEETING April 7, 2015 Page 2 of 9 Director Nielsen explained Todd Cebulla owns the property located at 5530 Vine Hill Road. He wishes to keep the existing home on the property while his new home is being constructed. Mr. Cebulla has applied for a C.U.P. to do so. The property is zoned Planned Unit Development (PUD) and ought to be zoned R- 1C, Single-family Residential; the underlying zoning is R-1C. The property contains 29,338 square feet of area. The site is currently occupied by the applicant’s existing home and a detached accessory garage. He intends for his family to live in the existing home while a new home is being built. Once the new home is completed the old one will be demolished. Shorewood's Zoning Code limits the number of principal single-family dwellings on a site to one. At one time the City had granted variances allowing property owners to keep an existing house on the property while a new house was being constructed. The Code was amended in 2000 to allow for such requests by C.U.P. Nielsen reviewed how Mr. Cebulla’s request complies with Section 1201.03 Subd. 2.c.(4) of the Code: 1. The proposed home complies with R-1C district setback requirements; 35 foot front and side abutting the street, 40 foot rear and 10 foot side. 2. Keeping the existing house should not result in a less desirable location for the new house. The desire to have the new house farther from Vine Hill Road is understandable. Eliminating the driveway to and from Vine Hill Road is positive from a safety perspective. 3. A detailed tree inventory and tree preservation/reforestation plan is required as part of the building permit. It appears that the applicant will be faced with the maximum replacement – six trees (8 trees x .75 acre). At least three of those trees should be located on the south side of the property in the general location of some of the trees that will be removed. 4. There must be some assurance that the existing home will be removed upon completion of the new one. Prior to the issuance of a building permit, the applicant must provide bids for the demolition of the existing home. A cash escrow or letter of credit will be required in the amount of 150 percent of the bid to guarantee removal of the older home and restoration of the site. 5. The approval must have a time limit. The Code allows the builder six months to complete the new house. For some larger or more complicated houses, this time limit has been found to be tight. If it is necessary for the owner to request an extension, it should be made prior to the end of the six months. Nielsen noted that staff recommends approval of Mr. Cebulla’s request subject to the following. A. The applicant must provide a copy of their contractor's bid for demolishing the older house. B. Prior to issuance of a building permit, the applicant must provide the City with a cash escrow or letter of credit for 150 percent of the bid amount to guarantee that the house will be removed and the site restored. C. The existing house and outbuilding must be removed within six months of the applicant receiving a building permit for the new house. If the applicant requires an extension, he should make the request prior to the six-month deadline. Todd Cebulla, 5530 Vine Hill Road, stated he agrees with what Director Nielsen explained. He explained that he and his wife considered remodeling their existing home or putting on an addition but they could not get rid of the mold smell resulting from water damage. Commissioner Bean asked if there is a size requirement for the replacement trees. Director Nielsen explained if deciduous trees 8 – 12 inches diameter at breast height are removed they have to be replaced with two 3-inch caliper trees. If the diameter is 12 inches or larger they have to be replaced with three 3- CITY OF SHOREWOOD PLANNING COMMISSION MEETING April 7, 2015 Page 3 of 9 inch caliper trees. Bean then asked if there is a time limit for when the construction of the new house has to be completed. Nielsen explained progress has to be maintained on the building permit and the City interprets that as having to require an inspection at least every 180 days. Potentially the construction of a house could stretch out three years. Bean went on to ask how many extensions for the C.U.P. the applicant could get. Nielsen stated the last time that happened for a situation like this the extension was for 90 days. Commissioner Johnson asked if there is a timeframe requirement for completing landscaping and erosion control after the existing house is removed. Director Nielsen explained erosion control measures are put in with the original site work before work is started. The restoration and regrading would have to be done before a certificate of occupancy would be issued for the new house. There is an exception to that. If, for example, the new house was completed in December and the new trees have not been planted and sod/seed has not been put down the City would require a letter of credit to guarantee that would be done by June 1. Chair Geng opened the Public Testimony portion of the Public Hearing at 7:57 P.M. Jim Berdahl, 19205 Waterford Place, explained that there was a meeting of Mr. Cebulla and the neighbors who live in close proximity to Mr. Cebulla’s property during which his plans were reviewed and they are all very supportive of what Mr. Cebulla has proposed. Chair Geng closed the Public Testimony portion of the Public Hearing at 7:58 P.M. Chair Geng noted that he appreciates the neighbors getting together about what is being proposed. He also noted that he likes the location chosen for the new house. Commissioner Davis asked if there is a full basement under the existing house. Mr. Cebulla responded yes and noted it is a split level house. Davis stated she assumes excavated soils from the location for the new house will be used to fill in the area of the existing house. She asked where those soils will be stored. Mr. Cebulla stated, for example, that his lot is large enough to accommodate the temporary storage of those soils. Davis suggested using more silt fence and covering the stockpiles. Chair Geng questioned if that might be more appropriately addressed as part of the permitting process. Director Nielsen stated erosion control is addressed during the permitting process and noted Davis’ point is well taken. Mr. Cebulla stated the foundation of the existing house is slightly less than 1,000 square feet in size and because it is a split level only one-half of the foundation is in the ground. The hole that will have to be filled is much smaller than for a traditional house and therefore there will be less stockpiling of soils. Maddy moved, Davis seconded, recommending approval of the conditional use permit for temporarily having two houses on one lot for Todd Cebulla, 5530 Vine Hill Road, subject to staff’s recommendations and subject to having adequate silt fencing for stockpiled soils and covering of them. Motion passed 5/0. Chair Geng closed the Public Hearing at 8:04 P.M. 2. PUBLIC HEARING – CONDITIONAL USE PERMIT FOR SEWER LIST STATION Applicant: Metropolitan Council Environmental Services Location: 21445 Sate Highway 7 Chair Geng opened the Public Hearing at 8:05 P.M., noting the process will be the same as for the CITY OF SHOREWOOD PLANNING COMMISSION MEETING April 7, 2015 Page 4 of 9 previous item. He stated this evening the Planning Commission is going to consider a conditional use permit (C.U.P.) to replace an existing lift station. Director Nielsen explained MCES operates the area regional sewer system. As part of that it operates a sanitary sewer lift station at 21445 State Highway 7. The existing facility is located on a permanent easement on City owned property. The property is located at the southwest corner of the intersection of Christmas Lake Road and State Highway 7. The property was acquired through a tax forfeiture process for the purpose of making improvements to that intersection and for general drainage purposes. There is a fairly significant wetland on the property. MCES proposes to replace the existing above-ground structure, located in the very southeast corner of the site, with a below-ground wet well and a small brick building housing control equipment and a bathroom. The facility would be served by a new driveway and a small parking lot. To satisfy Minnehaha Creek Watershed District requirements, a small drainage pond will be constructed on the north side of the proposed building. The proposal is very thoroughly described in the applicant’s project narrative (a copy of which was included in the meeting packet). Since “governmental and public regulated utility buildings and structures” in residential zoning districts are listed as conditional uses in the Shorewood Zoning Code, MCES is requesting a C.U.P. pursuant to Section1201.10 Subd. 4.a. of the Code. The property is zoned R-1A/S, Single-family Residential/Shoreland. Land uses and zoning surrounding the site are as follows: North: State Highway 7, then offices located in Excelsior and Greenwood; zoned commercial West: Church located in Excelsior; zoned residential South: Single-family homes; zoned R-1A/S East: Single-family homes and the Christmas Lake Public Access; zoned R-1A/S, In its original request MCES requested an additional easement for their new facility. Staff recommends MCES acquire ownership of the entire parcel. Staff also recommends the applicant deed back a drainage and utility easement and a conservation easement over the wetland area. The plans will need to indicate protection of the Christmas Lake piped outfall that crosses the property as mentioned in the City Engineer’s report dated March 26, 2015. Transfer of the ownership should be subject to the City Attorney’s direction. With regard to the analysis of the case, Nielsen reviewed how the applicant’s request complies with Section 1201.10 Subd. 4.A., which contains two criteria for “governmental and public regulated utility buildings and structures necessary for the health, safety and general welfare of the community”. 1. When abutting a residential use in any residential use district, the property is screened and landscaped in compliance with § 1201.03, Subd. 2.g. of this chapter; The applicant indicates that the proposed site plan will impact approximately 50 trees on the site, most of which are cottonwood or ash trees. The trees that would be impacted are either undesirable trees or trees that will likely have to be removed over the next 6-8 years due to disease. The applicant proposes landscaping along the Third Avenue side and along the Christmas Lake Road side of the property. The landscape plan shows a retention pond will be built to the north of the proposed facility to handle runoff from the new hardcover that will be placed on the property. CITY OF SHOREWOOD PLANNING COMMISSION MEETING April 7, 2015 Page 5 of 9 2. The provisions of § 1201.04, Subd. 1.d.(1) are considered and satisfactorily met. This section of the Code is essentially a “catch all” related to compliance with the Shorewood Comprehensive Plan and ensuring compatibility with the surrounding area. MCES’ proposal is considered to be a significant improvement over the existing conditions. MCES has requested that the zoning provision requiring perimeter curbing around the parking lot be waived. The City Engineer does not recommend doing that. The waiver would require a variance; the applicant has not submitted an application for that. Nielsen noted that staff recommends the C.U.P. for MCES be granted subject to recommendations discussed above and to those of the City Engineer. The applicant has requested that instead of requiring a cash escrow or letter of credit to ensure completion of necessary improvements, an agreement to that effect be executed. The City Attorney has been asked to comment on this issue and advise Staff whether conditions in the C.U.P. and on the sale of the property are adequate to guarantee completion of improvements (parking and landscaping). Commissioner Maddy asked about the process for local units of government trading property. Will there be a cash exchange? Director Nielsen stated the City has been told there will be. The County has given the city a copy of the process it has to follow to acquire the property and the City’s attorney is reviewing that. Chair Geng noted that MCES’ project description states “Un-needed piping and structures will be removed or abandoned.” He asked Director Nielsen is there is any concern about piping possibly being abandoned on that site. Nielsen explained it is not unusual for that to be done. The new pipe will be in the vicinity of the existing pipe and the old pipe will basically be emptied. Commissioner Bean asked if the project is limited to the lift station or will there be piping that needs to be run that will impact streets. Dan Fick, with MCES and the project manager for this project, explained MCES will build two new discharge pipes that will come out of the lift station cross Highway 7 and connect to a larger pipe MCES has along/under Excelsior Boulevard. This project is somewhat related to the MCES Excelsior Boulevard Forcemain Project that is in progress. The plan is to include extension of an 8-inch watermain at the end of the existing watermain and ending with a hydrant at the end of the intersection of Third Avenue and Christmas Lake Road. Commissioner Bean asked if that will impact the residents whose properties abut those roadways. Will those roadways be impacted? Mr. Fick stated they will. He explained MCES will remove the street, install the necessary utilities and reconstruct the street. Mr. Fick noted that if this C.U.P. does not get approved there will not be a project. He explained that if the C.U.P. is granted then the preliminary plans MCES’ consultant has prepared will be developed into biddable plans. Details about the watermain are not in the preliminary plans. Pending the outcome of the C.U.P., the watermain and roadway work will be added to the biddable plans. Director Nielsen clarified the pipework does not require a C.U.P. or City approval because it is within existing right-of-way (ROW) or easements. The facility is what requires a C.U.P. The removal of the streets and reconstruction of the streets is done through a permit process. MCES will pay for all of that. Chair Geng stated it appears there are some significant trees in the vicinity of where the new pipe will be laid along Christmas Lake Road. He asked if they will be impacted by the new pipeline. Mr. Fick CITY OF SHOREWOOD PLANNING COMMISSION MEETING April 7, 2015 Page 6 of 9 explained the intent is to hug as close as possible to the tree line and the new pipe will be located as close as possible to the existing pipe. There will be some impact to the trees; it will be kept to what is absolutely necessary. Geng asked if any trees will be lost or is it too early to tell. Mr. Fick stated the Demolition Plan lists the various trees, their types and their sizes. Director Nielsen noted that a lot of the trees are Cottonwood or Ash. Cottonwood Trees are not protected trees under the City’s Code. The Ash Trees are likely to be gone in the next 7 – 10 years anyway. Commissioner Maddy asked how deep the new forcemain will put in and if it will be put in with horizontal drilling or trench and cover. Mr. Fick explained they will be open cut and that there will be a tunnel drilled under Highway 7. He clarified on the site it will open cut. The pipe will be approximately 7 feet deep. Mr. Fick stated that this project will be similar to MCES’ Forcemain Project but the pipe will be smaller. In response to a question from Commissioner Bean regarding security of the proposed facility, Mr. Fick stated some of its facilities are fenced off and others are not. Mr. Fick noted that fencing is often decided by a city. He stated MCES will install fencing if the City wants and explained that fencing can collect trash and not look pleasing. Bean commented that in the past the City used rough contract on some of its facilities to try and make it more difficult to paint on. He asked if the windows on the facility were to allow light in. Mr. Fick responded yes and noted they are not functioning windows. He thought the windows would be polycarbonate. Mr. Fick stated the actual building that will be built on this site may not have as many windows or be as large as what are shown on the preliminary plans. Commissioner Bean asked why MCES had asked to waive the requirement for curbing. Mr. Fick explained it was about the ease of shedding water off of the site and noted that MCES does not object to installing curbing. Commissioner Maddy asked what is underground with the lift station. Mr. Fick explained the electrical equipment will be in the above ground building as shown on the Main Level Plan. There will be three large submersible pumps under the grates. The mechanical system for the lift station will be in the underground vault. Maddy then asked if the generator is oversized. Mr. Fick stated it is; it is what MCES currently has. Maddy asked if MCES is still not peak saving at high usage electrical times. Mr. Fick stated MCES is not doing that. Maddy went on to ask if MCES plans to have the wall lighting on around the clock. Mr. Fick explained the wall lighting would be on a photocell and it would only come on when it was darker outside. The light mounted on the pole would only be used when work had to be performed at the facility at night. Maddy then asked if the wall lights could have motion sensors on them. Mr. Fick explained that having the lights on at night tends not to attract inquisitive people; therefore, MCES’ preference is to have them on when it is dark out. The lights will be aimed in such a way that they will not cast light to areas other than what they are trying to illuminate. Most of the lighting will be aimed downward. Maddy suggested MCES consider having sensors because if the lights are always on neighbors do not pay attention but if they come on periodically they may pay more attention. Commissioner Bean asked Commissioner Maddy if he was concerned about light pollution to the residents. Commissioner Maddy stated to some extent and noted that when there is no foliage on the trees he would not like to live next to that facility. Bean noted there are three commercial properties across Highway 7 that are lit up most of the time. Maddy stated if there is not a need for lighting then he questioned why the lights would be on. CITY OF SHOREWOOD PLANNING COMMISSION MEETING April 7, 2015 Page 7 of 9 Chair Geng opened the Public Testimony portion of the Public Hearing at 8:32 P.M. Steve Martin, 5750 Christmas Lake Road, noted he lives about three doors down from the site. He stated his main concern had been if what is being proposed will improve things aesthetically and it obviously will. He asked that the cutback of some of the existing trees be limited when possible because the foliage tends to reduce some of the road noise from Highway 7. He stated that periodically the generator is tested to ensure it will work properly when needed. Mr. Fick stated the generator will be relocated 50 feet back from the roadway. When it does run hopefully the residents will hear it less. Mr. Martin noted that after hearing the discussion this evening he and his wife support what is being proposed. Chair Geng closed the Public Testimony portion of the Public Hearing at 8:34P.M. Davis moved, Maddy seconded, recommending Council grant the conditional use permit to Metropolitan Council Environmental Services to replace its lift station on the property located at 21445 State Highway 7. Chair Geng suggested the motion be amended to state that the property be conveyed to Hennepin County in the manner recommended by staff and that it be subject to the conditions identified in the City Engineer’s report dated March 26, 2015. Without objection from the maker or seconder, the motion was amended to include the property be conveyed to Hennepin County in a manner recommended by staff and subject to the conditions identified in the staff report dated April 2, 2015, and the City Engineer’s report dated March 26, 2015. Motion passed 5/0. Chair Geng noted Council will consider this application during its April 27, 2015, meeting. Chair Geng thanked Mr. Fick for the great project description. Mr. Fick asked if the property acquisition and the C.U.P. will occur concurrently rather than sequentially. Director Nielsen stated staff has not given that much thought. Mr. Fick stated in the interest of the project schedule he hopes the acquisition of the property and the project could follow separate tracks. Mr. Fick asked if staff needs authorization from the Planning Commission to assign a new address to the property the County will acquire. Director Nielsen responded that can be handled administratively. Chair Geng closed the Public Hearing at 8:38 P.M. 3. DISCUSS OPEN MEETING LAW Chair Geng noted that Attorney Keane came back for this discussion yet the Planning Commission approved postponing this discussion. Bean moved, Maddy seconded, adding the discussion of the Minnesota Open Meeting Law back on the agenda. Motion passed 5/0. Attorney Keane explained the Open Meeting Law (the Law) and answered the Planning Commissioners’ questions. The Planning Commissioners are appointed by Council and thereby bound by the Law when conducting City business. They are expected to conduct their City business in this forum. He encouraged the Commissioners to be mindful of the Law when considering talking about City business. He noted CITY OF SHOREWOOD PLANNING COMMISSION MEETING April 7, 2015 Page 8 of 9 there are not many Open Meeting Law violations because they have to be brought as a claim in District Court; in effect as law suit. He explained the first and second violations result in $300 fines. He clarified the City is not responsible for paying any fine. The violator may end up paying the legal fees of the person who made the claim. The fees are capped at $1,300. Following are some of the noteworthy clarifications made by Attorney Keane. There was discussion about the Minnetonka Country Club (MCC) Planning Advisory  Committee (PAC) for that redevelopment project. The project consultant uses a tool called MindMixer to keep the public informed and to take comments and respond to them. Attorney Keane stated that is a public forum. The Commissioners are members of the PAC. He encouraged the Commissioners to be more of a consumer and observer of that process because the Commission will assess the PAC’s recommendations and make a formal recommendation to Council. It was noted the PAC members were encouraged to talk to their neighbors about the process and clarified communication among members is only a violation when it is done by a quorum of the PAC. Director Nielsen explained that when he receives an email about materials in a Planning  Commission meeting packet or gets asked questions about it he tends to send a reply to all of the Commissioners. He asked if that is an issue. Attorney Keane stated if it becomes an iterative email conversation that could be a gray area. That should take place in the public meeting. Keane clarified that email communication about City business is public data. He also clarified that the Commissioners have no duty to retain City related documents. He explained the City Clerk is responsible for record keeping and that the City has a Document Retention Policy that covers all forms. Council Liaison Labadie stated that during a session for newly elected officials she learned that  any response should be directed to the City Clerk, Director Nielsen or the City Administrator (for planning related items). Attorney Keane explained that if, for example, Council Liaison Labadie sent an email to  Commissioner Johnson and if she wanted that email to be part of the public documents then the City Clerk should receive a copy of the email. With regard to contact from constituents and site visits, Attorney Keane stated site visits are an  important part of what the Commissioners do and it is okay for them to gather information. They should not express their opinions or observations with the property owner, developer or developer’s representatives. He encouraged the Commissioners to exercise wisdom and good judgment. There was a question about whether or not Commissioners or the City would be liable for a  developer’s claimed loss of development potential if some of the Commissioners violated the Law. Attorney Keane stated he is not aware of such a claim and noted that would be a long reach. The claim would have to be about malice and the aggrieved would have to prove that. Attorney Keane stated the League of Minnesota Cities provides a supplementary publication that provides additional information. He will send Director Nielsen a link to that and Nielsen can distribute that to the Commission. Chair Geng thanked Attorney Keane for his sharing his insights. 4. DETERMINE LIAISON TO COUNCIL SCHEDULE Chair Geng stated the Planning Commission needs to establish Council Liaisons for the next five months. CITY OF SHOREWOOD PLANNING COMMISSION MEETING April 7, 2015 Page 9 of 9 Council Liaisons were selected as followed: April 2015 Chair Geng May 2015 Commissioner Davis June 2015 Commissioner Maddy July 2015 Commissioner Bean August 2015 Commissioner Johnson 5. MATTERS FROM THE FLOOR There were no matters from the floor presented this evening. 6. OLD BUSINESS / NEW BUSINESS None 7. DRAFT NEXT MEETING AGENDA Director Nielsen stated there is a setback variance slated for the May 5, 2015, Planning Commission meeting. There may also be a study session that evening. Director Nielsen stated the discussion on land use during the Minnetonka Country Club (MCC) Planning Advisory Committee (PAC) meeting just prior to this meeting was very good. Commissioner Davis asked for an update on the trail schedule. Director Nielsen explained that owners of six properties that will abut the Smithtown Road East sidewalk extension will be asked for easements. They have all been contacted. The plans and specifications for the extension are about 90 – 95 percent complete. The current plan is to start sometime in September 2015. Chair Geng asked what the construction bidding environment is like this year. Nielsen stated he did not know yet. 8. REPORTS • Liaison to Council • SLUC • Other 9. ADJOURNMENT Maddy moved, Adjourning the Planning Commission Meeting of April 7, 2015, at 9:20 P.M. The motion was seconded. Motion passed 5/0. RESPECTFULLY SUBMITTED, Christine Freeman, Recorder