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HomeMy WebLinkAbout2021-04-26 PACKET 07.City of Cottage Grove Planning Commission March 22, 2021 A meeting of the Planning Commission was held virtually at Cottage Grove City Hall, 12800 Ravine Parkway South, Cottage Grove, Minnesota, on Monday, March 22, 2021, in the Council Chamber and telecast on Local Government Cable Channel 16. Call to Order Chair Khambata called the Planning Commission meeting to order at 7.00 p.m. Roll Call Boike called the roll: Bigham — Present; Brittain — Absent; Fisher — Present; Frazier — Present; Khambata — Present; Knable — Present; Rasmussen — Present Also present were: Ben Boike, Community Development Director; Emily Schmitz, Senior Planner; Mike Mrosla, Senior Planner; Amanda Meyer, Assistant City Engineer; Amanda Johnson, City Attorney; Steve Dennis, Council Member Approval of Agenda Frazier made a motion to approve the agenda. Bigham seconded. Boike called the roll: Bigham — Aye; Fisher — Aye; Frazier — Aye; Khambata — Aye; Knable — Aye; Rasmussen — Aye. Motion carried: 6-to-O. Open Forum Khambata opened the open forum. Khambata asked if anyone wished to address the Planning Commission on any non -agenda item. No one addressed the Commission. Khambata closed the open forum. Chair's Explanation of the Public Hearing Process Khambata explained the purpose of the Planning Commission, which serves in an advisory ca- pacity to the City Council, and that the City Council makes all final decisions. In addition, he explained the process of conducting a public hearing and provided information on how any person wishing to speak could participate in the virtual meeting. Public Hearings and Applications 6.1 6005 Lamar Lot Split — Cases MS2021-021 & ZA2021-022 Kathryn and Andrew Nash have applied for a zoning amendment to rezone approximately 6 acres of land at 6005 Lamar Avenue from AG-1, Agricultural Preservation, to R-1, Rural Residential; and a minor subdivision to subdivide the property into two 3-acre parcels. Planning Commission Minutes March 22, 2021 Page 2 of 8 Schmitz summarized the staff report and recommended approval subject to the conditions stipulated in the staff report. Khambata opened the public hearing. No one spoke. Khambata closed the public hearing. Khambata stated that he is satisfied with the proposed driveway easement for access onto the public road. Frazier made a motion to approve the zoning amendment and minor subdivision, sub- ject to the conditions in the staff report. Fisher seconded. Boike called the roll: Bigham — Aye; Fisher — Aye; Frazier — Aye; Khambata — Aye; Knable — Aye; Rasmussen — Aye. Motion carried: 6-to-O. 6.2 Hadley -Scott Xcel Regulator — Case CUP2021-023 Northern States Power Company, d/b/a Xcel Energy, has applied for a conditional use per- mit to construct a new aboveground natural gas regulator station east of Hadley Avenue near the intersection of Scott Boulevard within an existing easement as part of the South- east Metro Natural Gas Project, which consists of replacing an existing 1950's era natural gas pipeline. Schmitz summarized the staff report and recommended approval subject to the conditions stipulated in the staff report. Brian Sullivan, Xcel Energy, provided background and history of the regulator project. He stated that they will provide screening of the regulator station from the public, which will create a nice streetscape addition to the neighborhood. Rasmussen asked about the size of the regulator and if the photos in the staff report are what the existing one looks like. Sullivan responded that those are photos of a regulator system in North St. Paul that is very similar to what is being proposed, which was photoshopped onto the proposed location in Cottage Grove. Rasmussen then asked if there would be any build- ings on the site. Sullivan responded no. Khambata opened the public hearing. No one spoke. Khambata closed the public hearing. Khambata stated that he appreciates that the plan includes screening since it would be located in a high traffic area. Rasmussen made a motion to approve the conditional use permit, subject to the condi- tions in the staff report. Bigham seconded. Boike called the roll: Bigham — Aye; Fisher — Aye; Frazier — Aye; Khambata — Aye; Knable — Aye; Rasmussen — Aye. Motion carried. 6-to-O. Planning Commission Minutes March 22, 2021 Page 3 of 8 6.3 Expanded Use at 10870 Ideal — Case CUP2021-017 Sullivan Property Investments III, LLC has applied for a conditional use permit for an ex- pansion of a legal non -conforming use at 10870 Ideal Avenue South to allow exterior storage, delivery, return, and service of semi -trailers and ground level office and storage containers. Boike summarized the staff report and recommended based on the findings of fact listed in the staff report. Mark Thieroff, explained that he is representing the property owner, who is under contract to sell the property, and one of the conditions of the purchase agreement is that they can secure a conditional use permit that will allow the use to continue on the property. He talked about the current status on the property as it relates to the various provisions of the zoning ordinance. He explained that it is important to underscore that this property may be guided and zoned residential, but it can't be used for that purpose at this time as there is an active junkyard immediately to the south and an active contractors yard immediately to the north. He noted that there is relatively little frontage on Ideal Avenue in relation to the overall size of the parcel, which would make it difficult to subdivide and develop for residential purposes. The current guiding and zoning are not helpful to the client and doesn't allow for any real practical use of the property. He explained why the property is not eligible for a standard conditional use permit or interim conditional use permit, and that the only option available to his client is to remain under the nonconforming use regime. The expansion that they seek to existing nonconforming use status is extremely limited as Boike stated in his presentation; his initial response was that it was close enough to the existing legal nonconforming use that the City was willing to allow them to continue with the change being made. There isn't a change that is significant or factor much into the Commission's analysis. Based on the City's presentation, there doesn't appear to be many concerns about the use with the emphasis of the analysis focusing solely on the legal questions. Thieroff stated that of the three bases that have been presented as grounds for denying the application, the first two relating to conformity with or compliance with the guiding and the zoning is a curious legal issue that comes up under the City's zoning ordinance, but not in a lot of other cities. The reason it comes up under Cottage Grove's ordinance is that Cottage Grove has opted to regulate the expansion of nonconforming uses through conditional use permits. Other cities do it differently, such as a permit to expand a nonconforming use. This City uses the CUP mechanism to regulate nonconforming uses, so the two initial requirements are automatically imported and the rest of the general requirements that govern CUPs don't really fit. The reason they don't fit is that nonconforming uses are legal uses in your city, and they are by definition consistent with the comprehensive plan and the zoning district because they are statutorily allowed to exist and continue. It can't be that something that is allowed by statute is by definition contrary to the comprehensive plan or zoning ordinance. He stated that those two conditions should not apply, but if the City is going to apply them, then you have to determine that they are in conformity with those requirements because it is a lawful noncon- forming use. He recognizes that there is some discretion here for the City to decide whether to allow the expansion or not, but the nonconforming use itself is clearly lawful and consistent. Planning Commission Minutes March 22, 2021 Page 4 of 8 Thieroff stated that regarding #10 in the City Code language regarding CUPs (Title 11-2-9F) that the use shall not adversely affect the potential development of adjacent vacant land, not- ing that the two properties to the north and south are not vacant and have ongoing uses. There is no indication that either of those property owners have any intention of ceasing their activi- ties and businesses. The staff report also discussed the difference between the nonconform- ing use status and its proposed expansion and the conditional use permit status of the two adjoining uses. The suggestion in the staff report is that there are ways that those two uses, which are nonconforming, can be terminated, whereas a CUP is potentially an indefinite use. He believes that is not the right analysis. There are very limited circumstances in which a nonconforming use can be terminated, including fires and ceasing operations for a year or more. The important thing is that those same or similar conditions can be built into a CUP. The Commission could adopt language for a condition of approval that says that the use cannot change and must continue in the same way it is operating currently. They could also add that ceasing operations for a specific period of time would also be grounds for revoking the condi- tional use permit. Thieroff then stated that this property is in a transitional area; it has been guided differently and the City expects that in the future it will be redeveloped for residential purposes. If the concern is that this property might hold up those plans if a CUP were granted, he noted that residential development is a much higher and better use of the land than storing semitrailers. He can't make any representations on his client's behalf, but in his experience most rational business owners who have property with a low value use when given the opportunity to sell that land for a higher and better use, such as residential development, they usually will sell the property for development. As financial and economic conditions change in the neighborhood and residential development comes, he thinks the City needs to keep an open mind that some- one might not continue the use just because they have a CUP when they can sell the property for more money and relocate the low use somewhere else. He stated that given the transitional nature of the area and the fact that there are no lawful uses of this property under its current guiding and zoning, it is somewhat unfair to expect his client to bear the entire economic bur- den that the property is located where the adjoining uses prevent its desired redevelopment. Khambata asked if one of the conditions for the sale of this property is testing and mitigation of recognized environmental concerns. Thieroff responded that he believes there was a phase 1 done when his client bought the property in 2017 or 2018. He noted that he is not handling the real estate transaction, only the land use issues and could provide that information to the City. Khambata asked if staff could follow up with if it requires further investigation. He then noted that Thieroff cited other cities and how they might do things differently and that Cottage Grove requires an annual review of interim conditional use permits to reassess their need for the ICUP. Whereas with the ICUP for this property, it appears that there was a compromise for the current nonconforming use of that property. He noted that the future property owner could apply to extend the ICUP to continue the legal nonconforming use in accordance with what they want to do with the property for another four to five year period, and maybe there could be annual oversight. Khambata asked Thieroff if he knew how many other locations might offer this same type of use. Thieroff stated that he does not know where else CC&S has looked nor what their alternatives are. They like the proximity of this site to their main site. He reiterated that businesses of this nature that own real estate may convert those real estate holdings into profit when they can do so. Planning Commission Minutes March 22, 2021 Page 5 of 8 Khambata stated that a conditional use permit never expires, so the City has no recourse as far as guiding development, whereas one of the requirements of an ICUP could be an annual renewal of that permit. So long as there is no higher or better use for that property, the City may not have any objections to the continuation of that use. He asked if the applicant had considered that as an alternative when they submitted this application. Thieroff stated that when they reviewed the City's ordinance, the comprehensive plan, and the state of residential development in the area, there weren't any options, because the last time the then property owner applied for a conditional use permit, as is being done now, and they did not apply for an ICUP. It appears that there were some negotiations, and they agreed to a time -limited conditional use permit, which by statute isn't possible, so the word interim was added to the approval. However, this isn't a use that can be approved by an ICUP as it is not allowed by the City's ordinance. He noted that unless there is a way to tie the time during which the use would be allowed to the progress of development in the area, his client may at least be willing to discuss with that with the buyer. He thinks there is a disagreement on how imminent resi- dential development is in this area and does not believe residential development will happen by 2025. He also stated that their buyer is not interested in going through this process unless they get an approval that will allow it to operate sufficiently into the future. He also pointed out that if the City wanted the use to end to make this property available for redevelopment, it can condemn the CUP and the nonconforming use. Otherwise, his client is being forced to hold a piece of property that has artificially depressed value because it has been zoned and guided in a way that it can't be used. Khambata opened the public hearing. No one spoke. Khambata closed the public hearing. Fisher asked why the initial ICUP was given a 10-year time period. Boike responded that was the result of negotiations at the time the ICUP was issued. There were existing CUPs that applied to the property and as part of the negotiation to allow the use under an interim condi- tional use permit, the sunset date was set. City Attorney Johnson stated that at that time, there were CUPs that had begun in 1999, and the negotiations wiped the slate clean and allowed it to start over with one CUP, which the City wanted a sunset date on it. Fisher asked Thieroff if his client was aware of this ICUP when they bought the property. Thieroff responded that he has no reason to believe the client was unaware of the ICUP. He then noted that as it gets closer to 2025, he does not believe that this property will be ready for residential development. Frazier stated that it is his understanding that there is a legal nonconforming use on the prop- erty and there is an ICUP that allows certain other activities that will expire in 2025. He asked what the scope and scale of the legal nonconforming use will remain after the ICUP expires in 2025. Johnson responded that the legal nonconforming use will be the use that currently ex- ists, which is what they are currently doing, but the requested CUP is for an expansion of the legal nonconforming use. Frazier asked for further clarification as he thought staff was of the impression that under the existing ICUP, the legal nonconforming use can continue, but they want to formalize that into a conditional use permit rather than an ICUP with a sunset date. Johnson responded that when they first came to staff, they asked about expanding the storage use and were informed by staff that it is close enough to what the current permit allows, so they don't need to do anything different. However, the applicant does not want that use to stop in 2025, which is why they are applying for the CUP. The current use, which is storage, would not be able to continue because they are governed by this ICUP. When the ICUP is gone, then the ability to do whatever is under that ICUP is also gone. Planning Commission Minutes March 22, 2021 Page 6 of 8 Khambata asked what uses would remain on the property when the ICUP sunsets. Johnson responded whatever would be allowed in that zoning district. Thieroff referred to the staff report that indicates when the existing ICUP was granted, it rolled up a lot of the previous approvals, but left the nonconforming salvage yard use in place. This property used to be part of the property immediately to the south where the salvage yard continues to operate and per the staff report, this ICUP left that salvage yard nonconforming use in place. Frazier stated that as he reads the staff report, it appears that many of the legal nonconforming uses were rolled back except for what was listed in the 1999 resolution. He asked if what would be allowed on September 1, 2025, is buying, storing, dismantling, crushing, towing, and selling of automo- biles and trucks. Johnson answered that she believes just the junkyard use would be allowed. Frazier asked if the language of the 1999 resolution is going to be allowed as a legal noncon- forming use after the interim conditional use permit is expired. Johnson responded that was correct. Frazier stated that there is some economic use to the property and the City is not totally taking away any ability to use the property to make money after August 31, 2025. Johnson responded that is correct. Thieroff stated that the nonconforming use status under the City ordinances and state statute terminates after one year of non-use, so it would be surprising that they could operate a salvage yard that wasn't in use in after 10 years. Boike stated that city sewer is being extended in the direction adjacent to this neighborhood and there is a developer who is looking to develop property in the area but not immediately sur- rounding this parcel, which is a component in denying this request as there could be residential development in that area before 2025. There are challenges with residential development of this parcel due to the uses of the properties to the north and south; however, he believes it is in the City's best interest to not grant the CUP based on the fact that development could begin in the near future, and the City does not want to prohibit the potential for adjacent parcels from being developed accordingly. Frazier made a motion to deny the application based on the findings of fact in the staff report. Khambata seconded. Frazier stated he particularly supports findings of fact #1 and #2 because the comprehensive plan, which was just adopted, is clearly guiding the property for residential and the zoning is backed by that. He understands Thieroff's argument because Cottage Grove does things dif- ferently than other cities, but he doesn't agree that a legal nonconforming use is necessarily cooperative with the comprehensive plan. He agrees it is legal, which is why it is allowed to operate, but the City has guided the parcel residential. Currently the legal nonconforming use gets to continue even though it is not in conformity with the comprehensive plan or zoning ordinance. He does agree with Thieroff in that he thinks the language of the ordinance says "adversely affect the development of adjacent vacant land" as there isn't vacant land adjacent to this property, but he believes that findings of fact # and #2 offers a sufficient basis to deny the conditional use permit. Khambata stated that the primary reason why he believes we need to deny this application is, as Frazier stated, findings of fact #1 and #2 and that he finds it difficult to identify a hardship for the current property owner considering they bought it with that sunset in place. He stated that he has a real estate background and while he may encourage his client to try to get a permanent use, there is no guarantee it would be granted. The statute says that the City may grant this but are not required to, and the applicant is not entitled to this conditional use or extension thereof. With that he does not see the hardship for the owner; it does put them in a Planning Commission Minutes March 22, 2021 Page 7 of 8 difficult situation with the prospective buyer, but the owner should have been aware of it when they purchased the property. Boike called the roll: Bigham — Aye; Fisher — Aye; Frazier — Aye; Khambata — Aye; Knable — Aye; Rasmussen — Aye. Motion carried: 6-to-O. Approval of Planning Commission Minutes of February 22, 2021 Frazier made a motion to approve the minutes of the February 22, 2021, Planning Com- mission meeting. Rasmussen seconded. Boike called the roll: Bigham — Aye; Fisher — Aye; Frazier — Aye; Khambata — Aye; Knable — Aye; Rasmussen — Aye. Motion carried: 6-to-O. Reports 8.1 Recap of March 2021 City Council Meetings Boike introduced the new Senior Planner Mike Mrosla. Mrosla provided his background to the Commission. Boike provided a summary of actions taken at the City Council meetings on March 3 and March 17, 2021. Dennis expressed his appreciation to the Commissioners for all their work on the Planning Commission. He stated that he would answer any questions from the Commission. There were none. 8.2 Response to Planning Commission Inquiries None 8.3 Planning Commission Requests Rasmussen asked with the extension of the Planning Commission terms what his new term expiration is. Boike responded that he would send to the Commission the updated roster listing everyone's extended terms. Fisher asked when the Planning Commission will meet in person again. Boike responded that due to Covid and because the Zoom calls have been working, meetings will continue to be virtual for the time being. There will be further discussions as restrictions are loosened. Dennis stated that he would defer the decision to the Planning Commission as to whether they would like to continue with this format or meet in person. Khambata made a motion that with a unanimous vote the Commission would ask staff to start the process of returning to in person meetings. Fisher seconded. Rasmussen commented that he does not have any issues going back to in -person meetings, but he feels that the Zoom calls have been working well and has allowed him more flexibility with his work schedule as he's been able to participate when he has been on business trips. Planning Commission Minutes March 22, 2021 Page 8 of 8 Khambata asked if meetings are held in person, would remote access still be possible. Dennis stated that the City Council meets in person and the technology is available to be able to accommodate virtual access during those meetings. Khambata amended his motion to include the feasibility of remote access with in -person meetings. Knable stated that he is currently not comfortable with meeting as a large group unless social distance and wearing a mask during the meetings were required. He said that he would vote against the motion of all meeting in person at this time. Khambata rescinded his motion and asked staff that they propose how in -person meetings might be implemented so a decision can be made later. Khambata asked for an update on Pizza Ranch and if there are any developers planning af- fordable housing units. Dennis responded that the Pizza Ranch project is still in a hold mode, but he believes that they still want to come to Cottage Grove. He then stated that there are a couple potential developments being contemplated but believes they will be market rate, not necessarily work force or subsidized housing. One the challenges for the City is that we are underserved when it comes to more affordable residential housing. He noted that the Council would like to see a wide range and variety of housing types and styles. Annual Organizational Meeting 9.1 Adopt 2021 Planning Commission Rules Khambata asked if there were any proposed changes to the 2021 Planning Commission Rules. There were none. Frazier made a motion to adopt the 2021 Planning Commission Rules. Rasmussen seconded. Motion passed unanimously (6-to-0 vote). 9.2 Election of Officers Khambata asked if there were any nominations for Vice Chair. Frazier nominated himself for Vice Chair. Khambata seconded. Khambata asked if there were any other nominations. There were none. Motion passed on a 6-to-0 vote. Khambata asked if there were any nominations for Secretary. Rasmussen nominated himself for Secretary. Khambata seconded the nomination. Khambata asked if there were any other nominations. There were none. Motion passed on a 6-to-0 vote. Adjournment Rasmussen made a motion to adjourn the meeting. Knable seconded. Boike called the roll: Bigham — Aye; Fisher — Aye; Frazier — Aye; Khambata — Aye; Knable — Aye; Rasmussen — Aye. Motion carried: 6-to-O. Meeting adjourned at 8:38 p.m.