05-02-90 Agenda and PacketAGENDA
CIIANHASSE}I PIANIIING COII{ITIISSION
VIEDNESDAY, t{AY 2, 1990, 7:30 P.l,l.
CI{ANHASSEN CITY HALL, 590 COULTER DRIVE
CALL TO ORDER
PUBLIC IIEARINGS
1. Variance to the Sign ordinance to have 2 I{aII Signs and SitePlan AnendDent for the Chanhassen lledical Center located atWest 78th Street, Brad Johnson.
2.
Conditional Use Pernit for the expansion of the wholesatenursery.
3 *T![El rITEDRIrIt BT IPPIJICAIII*R. c. Read Company, on property zoned IOp and 1ocated east of184th Street just north of Quattro Drive:
a.Replat of Iots 5, 5 and 7, Block 1, park One 3rd Additioninto one lot.
b.site Plan Review for a 4L,260 square foot office
warehouse facility
4.PllT Corportion, on property zoned fop and located at 15OO park
Road:
a Replat of Lots 1 and 2, Block 1, Chanhassen L,akes BusinessPark 5th Addition into one lot.
b
Northuest Nursery located at 7801 Great plains Boulevard, just
south of Llman Boulevard:
a. Wetland Alteration Pernit for the altering and filling ofa Class B wetland.
b. Site Plan Review for 45r9OO square foot expansion tothe existing facility.
Zoning Ordinance AmendDent to aDend Sections 20-30 and 2O-gO3of the city code pertaining to recording of pemits and zoning
5
Iots.
OLD BUSIIIESS
5. Business Fringe
Discussion.
NEW BUSINESS
APPROVAL OF IITINUTES
status Background PaperDlstrict,
,fk
CITY COI'NCIL UPDATE
OI{GOTNG ITEX{S
ADITINISTRATTVE APPROVAIS
OPEN DISCUSSION
7. Discussion of Park and Ride Iot planning Study, Beverlyl,Iiller, Eransit Adninistrator for Southiest UEtro transit.
AI\TOI'RNIIENT
CITY OF
EH[NHISSEN
PC DATE:
CC DATE:
cr,sE #:
llay 5, 1990
Iilay 30, 1990
90- Sigrn
STAFF REPORT
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PRoPoSAL: 1. sign Proposal for chanhassen Frofessional Building
2. site PLan Amendment
Northwest corner of creat Plains and West 78th street
IntersectionI'CATION:
APPLICANT:
55317
Brad Johnson
Lotus Realty
Box 730
Chanhassen, uN
PRESENT ZONING:
ACREAGE:
CBD central Business District
DENSTTY:
AIITACENT ZONING A}{D
INND USE:t{ - PUD, Heritage Apartnents
S - cBD, conmercial
E - CBD, coramercial
W - CBD, conmercial
WATER AND SEWER:
PHYSICAL CHARAETER.:
Available
Property is level and developed.
2OOO IAND USE PIAN:Connercial
ANALYSIS
The applicant is requesting approval to allon tenants in the
Chanhassen Professional Building uore than one waII sign. Theapplicants are not requesting any additional. sign bands beyond uhatIras approved with the original ptan but are reguesting that 2 ofthe sign bands be used for 1 occupant. The Uedical Arts Center isoccupying the easterly portion of the Chanhassen professionalBuilding. They are requesting a certificate of occupancy onFriday, April 27th, and uiII be opening for business on Uonday,April 30th. The tenants are requesting that they be allorred to usethe sign band on both the south and north side of the building.Technically-, - the sign ordinance allows an occupant of the buildingonly one wa11 sign per street frontage. The subj ect site has onlyone street frontage along west 78th Street, but access to thebuilding is prinarily fron the north side where the parking area islocated.
Staff originally .was requiring the applicant to go through avariance to the sign ordinance and an anendment to €tre site planfor the Chanhassen Professional Building. In neeting uith theapplicant, it was found that the applicant was only reqriesting theability to use the approved sign bands as designed Uy ifre tenant.Since additional signage was not requested, s€aff ii confortableirith alloving tenants of the building to use the number of approvedsign bands on both the north and Jouth side for tlreir biriinessidentification. The intent of the ordinance requiring businessoccupants to not have more than one wall sign per streel frontagewas to linit the anourrt of sigmage on buitdi-ngs. Again, sin6eadditional si.gnage vill not result by the appi icant;s rlquest,staff is confortable with all_orring then to use lro of the fiv6 signbands for one occupant. staff nade it clear to the applicant thatthis would- be onry arlowed rrith the understanding thit iaaiiionarsalr rign bands uould not be pernitted in the friture shouid theyarlow both sldes of the slgm bands to used by the larger occupantiand not have uarl signs reft for snaller tenlnts who ient sDace ata later date. The a-pplicant agreed to trtis-"tnaii;;."- ---
In sunnary,
appl icant is the
plan
staff feels that what has been proposed byconsistent with the zoning ordinanie ina sitd
Uedical Arts Center Sign Request
Uay 2, 1990
Page 2
BACKGROT'ND
Ol Hay 22, L989, the City Council approved the prelininary plat andsite plan approval for the trtedical Arts Building (Attachnent #1).The site plan review uas approved with the revised site plan andfinal .facia, signage and externat tighting based on planJ stanpediReceived April 14, 1989rr. One of the conditions of approval wasthat no business may have nore than one uall sigm as is regulatedrith the Sign Ordinance. The approved final ficia includad fivebacklit sign bands, 3 on the south and 2 on the north side of thebuilding (AttachDent #2).
tledical Arts Center Sign Request
I.{ay 2, 1990
Page 3
approval and can be approved adninistratively.
Nunber of Sion Bands
In discussions with the applicant, it became apparent that theyuere under the inpression that they had approval for 5 sign bandson both the north and south sides of the building. Staff reviewedthe reports going to the Planning Conmission and Council and a1lthe corresponding ninutes. The report that was presented to thePlanning Conmission by Steve Hanson referred to the April 14, 1989,pl.ans as did the City Council report. There is no mention in anyof the reports or other inforrnation in the fite of the site plan
being approved for the 5 signs on both the north and south sides.
What has been a connon occurrence rrith the developnent dovntown,such as with the hotel site, is that plans are subnitted afterapproval that have changes within then that have not been broughtto staff's attention. The applicant believes that staff was avareof the change for 5 sign bands on both sides of the building andtbat the Pllnning Conmission and or City Council did approve ofthis change. Again, staff cannot find any mention where it wasbrought up that the nuEber of sign bands changed fron a total of 5to a totaL of 10. In the April 19, 1990, Planning ConnissLonroinutes, there is some nention of the nunber of sign bands needingto be discussed but this was not done. The applicant (Arvid
Eflness) mentioned plans subnitted on Friday which sas April. 14,
1989.
ObvJ.ously, the applicant feeLs that the 10 sign bands rrere approvedand that is what they vish to install into the facade of thebuilding. Staff feels that the 5 sign facade that had been
approved is what should be naintained. In reviesing elevations of
both plans, staff feels that the 3 s19m bands on the 6outh and the2 on the north side are more approprlate for an office building.
The elevatlon showing 5 sign band6 on both the north and south sidevhich provides signage alDoat directly acroas the total facade ofthe bullding is nore approprlate for a shopping nal.l but not for anofflce bullding.
The Planning Counission and City Council nust decide rrhether or notthe 3 sign bands on the aouth and the 2 Bigms bands on the north
should be the number of sign bands maintained. should the Planning
The site plan that was approved by the Planning connission and CityCouncil was the plan dated April 14, 1989. These plans show 3 sign
bands on the south side of the buildlng and 2 sign bands on thenorth side of the building. The Planning file also contains plans
dated April 18, 1989, and the6e plans Bhow 5 sign bands on thesouth side and 5 sign bands on the nori.i side of the building. TheApril 14, 1989, plan is the one that was officially approved by thePlanning Conmission and city council and is stamped the iofficial
coPy" .
[edical Arts center Sign Reguest
Hay 2, 1990
Page 4
Conmission and city Council feeL that they would prefer to have the5 sign bands on both the north and south sides, then they shouldforEally approve the anended plan as shorrrr on pJ.ans dated April 18,
1989.
ATTACHIiIENTS
1
2
3
4
5
6
Staff report dated April 19, 1989.
Planning Commission minutes dated Aprit 19,
l,lemo from Steve Hanson dated Uay 3, 1989.Clty Council Dinutes dated Uay 22, L989.
Reduced copies of site plan dated April 14,
Reduced copies of site plan dated April 18,
1989.
1989.
1989.
CITY OF
STAFF REPORT
}.C. DATE:
C.C. DATB:
CASE NO: 89
Prepared by:
April 19, 1989
ltay 8, 1989
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Prelininary plat Approval
Site Pl.an Review of Final Facia Signage and Exreriori:i:'t'3"li?|*lgr:x. n."i".a-liI.i"ii="na p;;ii;;--
LOCATION:
B)
PROPOSAL: A)
APPLICAII: Lotus Realtyp.O. Box I00
Chanhassen, UN 553I7
PRESE}IT ZONING:
ACREAGE:
DENSITYs
ADJACENT ZOITTG
AND LAND USB:
CBD, Central Business District
N-
B.
w-
R-l2;
CBD;
CBD;
CBD;
proposed Eeritage park Apartnents
conmercial use
conmercial use
conmercial use
HATER A}ID SET|ER:llunicipal services are available
PEYSICAL CEARAC. T Site is level
2OOO LAND USB PI.AN:Commercia I
EHINH-lSSEl'l
North of West Zgth street and East of lg0 tyest TgthStreeC
North Sitle Parking LotApril 19, 1989
Page 2
The site plan for this area, which is the location of the
Chanhassen Professional Building was approved by the City Councilat the February 27, L989, neeting. That approval was subject to
the following conditions:
Platting the area.
Submittal of final facia, signage antl exterior buildingIighting for Planning Connission approval prior to issuanceof building permits.
1
2
3. Traffic engineering should rev
east portion of the parking 1olity of realigning the sidewal
sta1ls. It Bas felt thatlot roulil not improve the
and that stop signs would
Pedestrian signs could besalks are.
sidewalk location on theor safety, with the possibi-
nd adding stop signs or
iewtfka
speed bumps to maximize accessibility.
4. Dilect staff to have the consultants review the intersectionto see if there is any possible alternatives and if possible
have a modified alternative by uarch 13th.
Since that time the plat has been prepared for the property. TheplaL creales two building sites arounil West 78th Street andoutlots generally to the rear of those two buildable lots for lheparking areas that will serve these buildings.
The site plan has been aneniled to modify the location on the pro-perty on the west end near the Riviera. These amendments were
done in order to improve the parking situation for the RivieraRestaurant. In addition, the sidewalk locations were evaluatedon the east end of the proposed Chanhassen Professional Builcling.It reas felt the best alternative was to align the sidewalk fromthe apartment buiJ.ding in a generally direct alignurent with theclock tower. Then also a pedlestrian link was made fron that areaover to Colonial Cent.er. In evaluating means for naking thepedestrian crossings through the parking area visibler it was
determined the best solution was to put in large cross walkpainted areas lined up with landscaped features between parkingthe use of speed bumps in the parkingsituation for these cross access ways
be inappropriate in these locations.
aclded to enphasize where the cross
The City Council asked staff to evaluate the access at the inter-section of West 78th Street and Great Plains Boulevard. Inlooking at this, no other alternatives were identified other thanelininating this particular access. This access was a negotiatediten with the property onners in the area as part of the overallreilevelopment of this entire area. The Engineering Departmenthas indicated this access, while not the most ideal situation, isacceptable from an operational standpoint.
North Sitle Parking LotApril I9, 1989
Page 3
The applicants have sumitted facia, signage and exterior buildinglighting for Planning Coumission review. The applicants arepro-
posing one free standing identification sign of 20 square feet to
be locatecl at the southuest corner of the builtling in Phase I.
This sign will be 316'in height. On the back side a free
stanaling directory sign is proposeil to be 416" high and 316'across. On the face of the building back lit sign bands are pro-
posetl over three of the entrances these are 35 square feet insize. Onis shorn i
complies w
may have n
teh entrance features. The roof is to
Previously the entrance features irere g
colors have been listed on the p1ans.naterials are not noted. Ihese should
The Planning Commission recommends approval ofplat for the North Side Parking Lot. subject to
'Received April 14, 1989'.
thentith
ore
south elevation another sign band of the same size
he miildle of the builtling. The signage proposedthe zoning requirements, provided that no occupantthan one wa1l sign.
The plans note only one light to be locateil in the patio area.
No other exterior lighting is proposeil on the exterior of thebuilding. The other site lighting is part of the parking lot
improvenents being done by the city.
The proposed facia of the building is to be woodlap and
shakertown siding, with ornamental gri11e work anil railings on
be
oin
The
not
asphalt shingles.t to be brick. No
door and rindow
be aluminum finish.
RECOUI1IENDATI ON
Planning staff recommends the Planning Conmission adopt thefollouing notion s
the
the
plan and final facia, signage and exterior lighting baseil onplans stamped 'Receivect April 14, 1989' subject to the following
conditions:
prel imi naryplans stamped
The Planning Comnission reconmends approval of the revised site
I. t{o business nay have more than one rall sign.
2. l{o unpaintedl aluminum shall be allowedl on the exterior.
3. Peilestrian eigns be added to cross ralks in parking 1ot.
ATTACEIIiENTS
Prel.iminary plat.site plan for north side parking lot.
Site plan for Phase I Chan ProfeEsional Buildling.
ElevationE for Phase I Chan Professional Building.
I
2
3
4
Planning Comrnission HeetingApril l.9r 1989 - Page 2g
sonething like this as a possible PUD? Anything that would nake you thinkthat yes, thatrs a PUD?
Batzli: I think if they rrere to...Lot 14 and get some taore open arearay and decrease the density a litt1e... I think parkingrs a probletn.Iike that they are actually saving all the trees even though itrs on a
slope . . .
tha tI
Ellson:
Conrad :
nnrnings:
Conrad:
Frrnings:
Conrad:
I can picture it...
Steve, can you get into a situation rhere you would pass this?
Yes.
And those are...what you dj.scussed?
Yes they are.
...you don't think the developer could never achieve?
Erunings: I i{ould }ike to see them move this project... If Lot 14 doesnrt
have any development. If we lorrer some density. I donrt know nhat can benoved... Tbe only thing that still sticks a little bit with me is the;ize of the apartnent building. Irm not sure you can put that big of an
apartment building on there and still Batisfy the... I think I could be
convinced .
Conrad: I guess you've heard that we havenr t ruled the pUD out. Thereare some amenities to the property that I think you could persuade me on.The numbers in certain cases look really great to me. I could go wlth aPUD. Therefore, I guess what irerre saying, the consensus would be, otherthan Dave.
Headla: Ird like to see the portion...
Conrads I think that means we should table it and see if city Etaff canouddle through some of the comments that se nade. work sith you and seeif you can come back oith us uith a revlsed site plan. Another conceptplan that night encourage us.
Batzli noved, VlilderEuth seconded that the planning Comission tableaction on pUD 189-I Concept and Developoent plan for oak vier Heights sothey can rlork rith city staff. All voted in favor anal the Dotlon carrieil .
PUBLIC HEARING:
NORTH SIDE PARKING LOT ON PROPERTY ZONED CBD AND LOCATED JUST ETST OF 480rEst 78TH STREET, CITy OE CHANTTASSEN:
.{. PRELIMINARY PLAT APPROVAL.
B. SITE PLAN REVI EW.
Steve Hanson presented the staff report on this item.
Planning Commission Ueet i ngApril 19, 1989 - Page 21
Chairman Conrad calledl the public hearing to order.
Brad Johnson: I i.ant to just say a couple comments then Arvid Elness ishere fron Arvid Elness and Conpany. This riII be the first, I don,t knowif you guys have seen the color rendering. This is the apartnent buildingin the back and that'a the...xerre proposing on this part right here.
Then Phase 2... At tbe request of the City se dropped Phase 3 here as
Part of our program... fhat gives you an idea. I've asked Arvid to
address, the signage lssue I guess I rant to talk about too. The signsare kind of... we need the signs pernitted by the ordinance... It,a backlit. Itrs that ban, rrhat do you call it. If you look at sonething likeGelco. That sign. That kinil of sign that serve got a dark opaque feeling
and the letters are cut into that opaque. Arvid can address facia...
Arvid Elness: I'11 just make a couple points. This is the soffit plan.
TrJo things that rrere addressed here... We did a number of studies and I
guess our feeling architecturally had to do...one is a matter of... The
second is the fact that these elenents are standing out in front of thisbuilding and I feel personally that they shouldn't be distinguished as afeature or element that is different than the nain building. I think itwill look like a simple building rrith some large brick high risers hereatanding and the facade standing out in front of it nith a change oflaterial . I notice the material used on that free standing element that
stand out in front of it irill characterize the theme of rhat should haveproper naterials and should feel like theyr re integrated in the design soour tbinking is to take the sane materials that werre using...so this
element here looks like a part of this building and not dlstinguish it as
something different. In doing that, the materials of the main bulldingare like lap siding. Theyrre cedar lap siding and cedar shakes on the
upper part and then our color ban that wiII rrap around the building. Soin doing that we just brought those materials forrard and put then on thefront here...because this is really a free standing aort of spacial formout in front and it creates a shadow. Creates some interest and al.sogives us the opportunity to put soroe identificatlon on there. Brad askeduhat the signage said...nerre talking about. tle did sorae studies as to
ways we could do it on a professional type building and I think the...easthat it las because part of the design of the building integrateal .nd uasueII controlled...color ban of the building or could be used to introduce
sone backing. Then it Eort of looked llhe part of the archtecturaL... soitrs sort of designed and integrated into the building and to have...as
opposed to a nore comnercial type brackets of signage where tbereia acertain amount of freedom through the signage to create an identlty andmark...so I think serre confortable that sith the bannage BysteD that goes
above the entry at eye level ... the probleD rith the drarings raa that ue
subnitted Friday rrithout ldentifying shat se hadl agreed to aB the quantityof the potential site... So the tso issuea I have I guess rre the choiceof materials on the exterlor of the building and I think thatrs in
character irith rrhat I'm seeing in Chanhassen at thiE point and whatr s
nappening around town. These are materials that are very comnon place...T.
Brad Johnson: what about the llghtlng?
Planning Cornmission HeetingApril 19, 1989 - Page 22
Arvid Elness: Then the City has some J.ighting plans that we looked at forour standard ones that trere going on the street... The lighting for theparking is taken care of on the plan. What we tried to do beyond that is
because this element which stands out in front of the nain building hassort of a void, a space betueen itrs...ue put standard lights on the backside of these high risers that stand out here so at night each one of
these nain areas wiII be lit indirectly to the back side so theyi ll glowuith itrs oun 1i9ht. Then the city standards out there with the 1i9ht...
So rerLl do some architectural lighting as se call lt in these areas and
every place they refer around the building. We'11 probably put sone lightin the cupola on the roof up here... Ttrose are the lighting ideas that irehave. Signage I've explained. The sign ban...
Conrad: Anything el se?
Ermings movedl Ellson second to close the public hearing. AII voted infavor and the notion carried. The public hearing was closed.
Heaalla: I have no problems with the signage. ...The sidewalk there. I
foresee that to be a... Thatrs the way I look at it. Irm concerned aboutthe skateboards coming down there, irhatever. Are ire putting up trafficsigns or parking signs?
Hanson: No. Wetre not proposing to put speed linit signs.
Conrad: I tbink everybodyrs going to have the same kind of questions.
steve, maybe you can help us on this, or Brad. The last time this was in,se uere concerned rrhere the sidewalk ran across the traffic... we talkedabout speed bumps. We talked about signs. you elininated the speedbumps. You eLiminated the signs and basica).ly rhat you,ve done is paintedthe nal.k so can you give us nore rationale for that?
Hanson: I personally don,t see that as a problem...Iook at from a trafficstandpoint and their recotmendation was striping ras more than adequate...
Speed in the parking 1ot is not that bad and ne should be able to...bringing those islands out and creating parking stalls lets you knowtherets something happening there antl se can put in pedestrlan crossingsigns. In ny opinion, that.a shat re can do and thatrs...
Conrad: Are they going to1 the pedestrian traffic, are they golng to gothrough this or are they going to go around? Are there other eideralksthat theyrre going to use?
Hanson: I think gone of the traffic uill go around that oay. The otherquestion, if somebody.a ralking, shy are they ualking in there? I can aeethen warking...Kennyis llarket to buy groceries and then carry them back...
Headla: Irm not concerned about people carrying groceries. Irn concerned.tbout young people on Ekateboards and bicycles. If yourve ever had anoffice by a rindow on the secoDd or third atory or higher above a parkinglot. Haveyou ever noticed those speeders in the parking lot? ftrsatrocious the way they can apeed. Irve been hit in a parking 1ot... It
Planning Commission MeetingApril 19, 1989 - Page 23
happens. All the rationale says it shouldn't, there are speeders... Isinply can not believe... I want to see something to make that sideiralksafer.
l{i ldermuth :I had a problen sith the sideralk...
I niss something or isnrt the lighting of the building going
Brad Johnson: It'6 aII provided by the City as part of the parking lot soitrs part of your site plan.
Hanson: The other lighting ras shat the architect had mentioned...
Brad Johnson: I donrt have a lighting plan because the lighting plan isthe parking lot plan that BRW put out.
Batzli: The access here, the left area...access east... Thatrs the one Italked about last time...
Ellson: I donit like the...parking...juts around. I agree irith Dave. Ithink the thing that bugs me most about atl this is, we naturally
Batzli: Didto be...?
think.. . then i:ight through
on this side athe sidewalk i
I. .. and I don
signs . . .
t stops anil then you've got this distance open but this goes
and there are parking places on this side and parking places
nd therers a sidewalk in the miildle. Normally a person ons hidden behind two cars until they get out in there andIt like that. I think there should be speed bumps, atop
Enmings: I have the same reservation. I essentially feel that... I
don'
tra f
ral k
rhfic
in9
ave any problem with anything except the sidewalk directing
what Dave s
, they can salk
a
o
d
e
ys about kids on skateboards and little kidsut betireen two parked cars. If theyrxe 3 l/2 feet
oesnrt have a chance to see them and they don'tcar. Iou're creating a Eituation nhere I thinkts, yourre always thinking about kids coming out
ned to me. I didn't hit them but other people
hat Bituation. I think naybe ridening it out.
or shorter, the driver
have a chance to see thit I s. . .dr iving down stree
bet$een cars. Itrs hapPe
have and ue're creating tElininate some of the parking spaces on each side of that aidewalk...sightlines, that sould help. Having a painted crossralk I think rould be, Ithink thatis rrhat ue asked before. To me tbatrs essential. Iid put stop
signs there. ...Btop at that Bidewalk at least until I eaa abEolutelysatisfied through it'B use that the traffic on the sidesalk didnit uarrant
stop signs. Ird atart with that and then Dake theE prove that it rasnr tnecessary. Then ue'd just have...
Tim Erhartr s discussion could not be heard on the tape.
conrad: ...yet from the apartloent building standpoint, theyrre going
ro... Itrs probably going to be there. It's fairly straight. I.d haveto 90 along rrith Steve. I think it nay be a }ittle bit of overkill but I
think it should have 6ome kindl of signage. Thatrs my only comrnents. IIike the lighting. I like the signage. Is there a notlon? I guess te
Planning Comraission }{eetingApril 19, 1989 - Page 24
have to close
notion?
the public hearing on the preliminary plat. Is there a
Ellson noved, Batzli secondedprelininary pIat. All voted
hearing ras closed.
to
in
close the public hearing on thefavor and the Dotion carried. The public
&mings: I guess I uas a little confused about shat exactly... eas theprelininary plat? ... sideiraLk issue.
Batzli noved, Wilalernuth seconded that the Planning Connrission recommend
approval of the preliminary plat for the North Side Parking Lot subject tothe pl.ans stanpted "Received April 14, 1989". All voted in favor anal the
Dotion carried.
Hanson: The sidewalk issue is part of the site plan. That eas the first
docunent . . .
Conrad: Is there a motion for the site plan?
Headla: ...1989 irith the following reconmendat i ons . The three listed.
The first two. Pedestrian signs be added to crosswalks. Ird like to goto number 3 on the opposite page. Traffic engineer should review sidewalkIocation on the east portion of the parking lot for safety, rrith thepossibility of realigning the sidewalk and adding stop signs or speed
bunps to maximize access ib i 1i ty.
Conrad: Is there a second? The motion fail.s for lack of second. IBthere another motion?
Erhart: I r 11 make a motion that the Pl.anning Comission recorDmend
approval of the revised Eite plan and final facia, signage and exteriorlighting based on the plans stamped "Received April lrlI 1989" sith theconditions, number I as is. Nunber 2 as is. Number 3, did you start outby sayiDg ehat?
Headla: It's on the opposite page there. f,unber 3.
Erhart! Traffic engineerlng sbould revles sidewalk location on the eastportlon of the parking lot for safety, sith the posslbility of reallgningthe sidewalk anil adding stop signs. And iten number {, to reviee therest access to increaae access to the area for... To revieu the restentrance of access to ttre north parking lot...
Hanson! Is the intent to try and get the access coming back toyardsthe...? IrE just trying to clarlfy that.
dnrnings: Did the Public Safety Director and Fire Department revler thisplan for the acceEs? They did?
Conraal! Is there a aecond to Tinra motion?
Planning Corsnission Heeting
ApriL 19, 1989 - Page 25
EIlson: I'lI second it.
Erhart moveal , Ellson seconded that the Planning Commission recomnend
approval of revised site plan and flnal facia, signage and exteriorIighting based on plans stamped rReceived April 14, 1989r' subject to thefollowing conditions:
1. No business nay have nore than one raII sign.
2. No unpainted aluninum shall be allosed on the exterior.
3. Traffic engineering should review sidewalk location on the eastportion of the parking lot for safety, with the possibility ofrealigning the sidewaLk and adding stop signs.
4. Review the r,rest entrance of access to the north parking lot.
Erhart, El1son, Wil.dermuth and Headla voted in favor of the motion.Batzli, Conrad and Emmings voted in opposition to the motion and the
motion carried with a vote of 4 to 3.
latzli: l,ly reason is, I still donrt like the eastern eDtrance to the
south. The eastern most southern entrance.
Emaings: It just emphasizes the
the $ay it is.sidewalk issue. I canit approve the plan
PUBLIC HEARING:
COUNTRY SUITES HOTEL, LOCATED AT THE SOUTHEAST CORNER OF WEST 78TH STREET
AND !,IARKET BOULEVARD, BLOOI{BERG CO}iPANIES:
A. PRELIUINARY PLAT TO REPLAT LOTS I AND {, BLOCK 1, CTIANHASSEN I,IALL,
INTO TWO COMMERCIAL LOTS ON PROPERTY ZONED CBD.
B. REZONING A PORTION OE BG DISTRICI TO CBD DISTRICT LOCATED BETWEEN
HARKET BOULEVARD AND LOT '!, CHAIIHASSEN I'IALL.
C. SITE PLAN REVIEW FOR AN 8S UNIT HOTEL.
Jo Ann Olsen preaented the staff rePort on the above three iterus.
Chairman Conrad called the publlc hearing to order on the PreliEinary Plat
and Rezoning i ssue.
Emings moved, Erhart aeconded to close the public hearing. AII voted in
favor and the notion carried. The Public hearing ras closed.
tunings movedl . Ylildermutb seconded that the Planning Cormlssion recommend
approval of Preliminary Plat 189-7 as ahosn on the Plat atanped 'RecelvedApril 11r 1989" with the following conditions:
CITY OF
EHINHISSEN
ItEttoRAt[Dutrt
TO: Don Ashrorth.
FROIi: Steve Eanson,
DATE: Hay 3, 1989
690 COULTER DRIVE ' P.O. BOX 147 ' CHANHASSEN, MINNESOTA 55317
(612) 937-1900
City Hanager
Planning Director
SUBJ:
The Planning Commission at its April 19, 1989 meeting approved
the preliminary plat fo! the north side parking Iot subject to
the plans stamped 'Received April I{, 1989".
Prelininary Plat Approval and Site Plan Revi
Facia, Signage, Exterior Buililing Lighting a
Sidewalk anil Parking Layout Configuration fo
Cttanhassen Professional Buildling
el,
nd
r
of Final
Revi sed
Regarding the site plan appr
nenaled approval of the revis
and exterior Iighting based1989'subject to the folloui
3. Traffic engin
east portionlity of reali
, the Planning Commission recom-ite plan anil final facia, signage
Lans stamped 'Received April 14,
onditions:
houlil review sidewalk Iocation on thearking 1ot for safety with the possibi-e sidewalk and adding stop signs.
ovaledsonpn9c
1. No business nay have more than one wa11 sign.
2. No unpainted aluminum shall be alLowed on the exterior.
eering sof the p
9nin9 th
4. Review the uest entrance of eccess to the oorth parking lot.
This notion ras approved on a,l to 3 vote.
usineithatc
BRW
meet
The
thre
Eer ioftti on
the
Planning Connission discussion Dn the site plan cente issues. The first of those ras the sidewalk extentage Park Apartnents across.thb parking lot in the dhe clock torre!. Generally. .rthe Comission f elt thataI signage or definition of this peaestrian crossingparking area should be adlded. Concern is that Emallg the crosswalk sould not be visible due to cars parer side of the crosswalk. They requested that thisloser by traffic engineering. Therefore, I have con
andl requested that they be in attendance at the Couning on l{ay 22, 1989 to adalress this particular issue
ered on
ding from
i rection
aalali-
through
ch i ldren
ked on
be looketl
tactedl
:t'
Don Ashvorth
l,!ay 3, 1989
Page 2
The second itern of concern deals with the entrance anal the
acl justecl parking configuration by the Riviera. There was a Pre-
feience expressed for the access as it comes in to allow a right
turn into the first bay of parking along the professional
building rather than having to go all the way to the back of the
parking tot to get into that parking. The aCljusted configuration
was arrived at after neeting with the Kruegers, owners of the
Riviera. A copy of a memo frour Fred Hoisington summarizing this
meeting is attached to this memorandum (Attachnent *6). It
should be noted that this particular adjustment to the parking is
in Phase I1 and the apploval at this time woulil be for the
parking configuration for Phase I.
The third issue that was raised by Courmissioner Batzli was the
same concern he had raiseil when this item was before the Planning
Commission previously. That issue is the need for the access
west of Great Plains Boulevaril on lilest 78th Street. His feelings
are that this access should be closed anal that allowing it to
remain in this vicinity only complicates the traffic f lov, at the
intersection by the clock torder.
Recommendat i on
Staff recommends that the City Council aPProve the preliminary
plat for the north side parking 1ot based on plans stampeil
'Receivecl April 14, 1989". Further, staff reconrmends that the
City Council approve the revised site plan and final facia,
signage and exterior lighting based on plans stamped 'ReceivedApril 14, 1989" subject to the conditions of the Planning
Commission.
Attachmen ts
April 191 1989 PLan
Prelininary plat fo
Revised parkin
Final facia anApril 19, 1989
Memo fron Fred
ning Commission minutes .r the north side parking lot.
layout.
nage plans.f report.
ington dated uay 8, 1989.
1
2
3
4
5
5
g Iot
d sig
s taf
Eoi s
City Courcil lteeting - ! 22, ):g1g
Roger lhutson:
ircluab d(2).
of tlDse I ard
tal,or Ctniel:It * ry urderstarding covering as it ras Ettioned mkir|g both2.
@tnEilnan Boyt.: I rculd alproval of iten it(2) .
ourilnan Johnson: IrU secu, that.
r
qs
w
cowrilnan Boyt trcved, o.o.irnan Johnson sec.orrred to alprove site pr,an tG\riewfor a 6 and 8 unit to*nttc.rE buirding for south rotus viiias rtryntsaes. ellvoted in favor arril the ruotion carried.
H. NORI1I SIDE PARKTIE IX'r N.{PROI/EME}II PRCIiIECT 87-17.
courEiLman ldcrloan: r bel ieve tlE last ti-E that rE discussed ttris as a cor:nci1tte.pri'nasy clrEern that he had i{as the south e:(it onto rtr igi * re"t igthcuuing.out by_ t-tE clock toEr. I did talk to cary today briefly. t qrEs I
Turd jusr like to brirg it r4r before the courcirl r k;D,, Gary'ihr.t'G t-..1l*- tt"yt" get ssr= rrcre c'dtrrErts. ItE planning cotrrissia; 8ian,i-roor .tthat aspect of it again?
Brian Batzli: I made a cqr8eot but everlrorE else se€med satisfied sith it.
P,*irrr! t$orlgnan: r guess t'!d rike cqm=nts frm the 6,rEi1 ttsr as far ashoH they feel tlrat south exit is.
courtci lnan Johnson: rrll start on that. r'11 basically nake the 6arE cqrrEnt rmade last tinre. As ]rou can read in here, tley aia a ioi of ffiiatlcr with ttEIrroEEr Ey oqrners that are paying for tlese iarprovanents, that aie teirrg ass;J-for their improvements ard the-only my they ,riII sut itElivirrg th"t propertyto their, ir's their propeJty: rtny onr it. rtrev are s.rrB';;-;I".d it to tiecity at rp cost ant trren ttrey, re. goirg to pay- to.Lve ii-,pi.Ja at their @stand they need that *==ss aciordiig 6 ereir hEinesses. rire tlat Gess ar.y,they're-goirg to retract their off& to serl us the lard, ii* rt"t r read here.ItEn sErve got m parkfury lot. tb nedical building. rc'a-r.i"pr*t.
@urrilrnan tscrlqnan: Are lDu sayirg they're threatenirry us Ja]a
courcilnran Johnson.! thatrs the torre r get out of here. I?rey didn,t thleaten.fiatrs basically ttE agreenEnt t€ nade Hith tfED for ttris e"ifira, tot ard if r€ghange tle agree*nt, go back on the agreervrt, they tari -trre'-iiEnt to do tiat.r rten re'.rr have to go into conaenrnation to co.raenn trei. r.na i.i *y it frqnI ttrsn to do the sane thirry. fn *r,.r,*tion they may win the s:rrE argurentL an],$,ay.
15
7: Eovide t}e ara{ition of 2 npre Linden trees on t}!e randscape plan.
ALl votd in favor ad the uotion carried.
E(cuse EE l,tal'or. Ihe trction ras s6ecificauy d(1) . Did rpt
City Courcil ttaeting - M- 12, Lggg
&urri lnan lbrlgnan: so Jay tlen 1pu're saying 1otr. re fi:lry in favrir of thisegress at Ieast c@irE out at that intersection?
oo.oEilran Johnson: r bel ieve that for tie popte rip have been tlere,busiressoen in our oqnnrniQz for a lorg tire, tley tteserve tfeir pariirg fot t.obe cqrvenient for their businesse. s- rhey rcuId r*e a f.ru. rigtrt'turn, reetturn. tib n€gotiated dorn to a right turn in ard right hlrn od anry. 'lt,s not
lhe best thing in tlre rcrrd hrt the engineers say if,s safe ard iti3-a totbetter than it is rgr bea,'ce rpn lt.s ridicutorG uecause p""pi. t y L t r..that left turn in there. lbw they Et.t be able to urrn Gft- into -tlr.t ao itrsgoirE P be an i.mprorrgle'rt orer tte curr€nt situatian but-ia;";t ilrrS to O"as good as r Ent it. fratrs ]fiat r Erink is tlr rct reasonabre, &re testcqrroise to do. tts have to live rltll those busireEwr b. r; carr'l i*tlf,rt ttt€n att of hrsiDess. so tlutrg rfure r git. ta tnat itis r EeasorEbreccqrrcmise.
}la]pr ctmiel: tEsula?
&urrilsnan Dinler: I don.t have any @tEerna.
cou'cilnan Bolut: r fird it interestirE trn e get ourserves inb thesesituations of wtere re, on tlre ore hart t.e have h,rsires" lnt"."jL *,t o-\rery EuchEn! th.t uay in ard out of their prolErty. cr the other hard te have tlp-citizens uho :re going to_ drive ttro,rytr that intersectioo ana I'; j;; ;"theyr re not goirg to be preased but r think as Jay rgltioned, it,s-kird of partof tre. dear _ard- tho,gh rr may rpt be happy with il, r ttrink re ,ri[ r" umrwith ttp medical arts cEnter.- so although r Es olposed to this, i,n-ririiis toaccept it. I think itis the best cqnprqoise re, re- loing to get.
!b1or ctmier: Basicauy I.9r g"t both of you bave said arrt r sort of agreewith each of those. r tlrink t}e aceessibitity tas to be there too for thebusinesses. i{e rnay not be hapFy with erhatis there but r think itrs the bestthing re can have right rnw. I tiink BiU ErtiorEd that.
courcilman i{orlsoan: okay, r
-
guess r rd just like to say r.m total.ly for theh:sinesman in tlE city. I in rp Ey, sha[E or fotm rant to, as Iive said
Ffore, there.r s many other options for 5pp1g b sFrd their mcy rathe. ttandowntorn chanhassen rrd rather see here. tc in tne past have naai a mistare Ithink qr that corner by the clek toer ard r think re,re ading a iiiiie uitmre of a mistake to it. rf E have an oportunity to fix it. -r sirreierybgrioE that it is goirg to create a probrern if ttEy do rbt have trr"t "*",there hlt r tlrink ronetheless ard r gr.Ess r snt to go qr recrord as saying rttrink it's goirE to create a probrso there. r krrw that ffi 101 is Eoiii to t"Eved e\rentually so traffic strould be reduaed in that area hrt r stif:. LveoorEerns.
O.IEihan Johnson rcved.ourrilnan BoyE secorded to alprove the lbrth SideParking tot lr{rro\rstrent project 187-17:
a- keliminary plat and site plan Approval for the tedical Arts Bri tdingb. EsoLution lA9-7Sr llpprove plans aid Sgncificatior:s ar*t Authori; ttEAdvertising for bids.
All voted in favor ard the motion carried.
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CITY OF
EHINHISSEN
STAFF REPORT
P.C. DATB: tlay 2,'f990 '
C.C. DAIE: }{ay 30, 1990
CASE NO: 85-1 CUP
Prepared by: Olsen/v
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LOCATION: 9150 Great PIains Boulevard
APPLICAN?: Mark VanHoef
Northwest. I{holesale Nursery
915 0 Great PIains B1vd.
Chaska, MN 55318
PROPOSAI :Permit to ExpandConsideration of Conditional Use
Northwest Who1esale Nursery
PRESENT ZONING:
ACREAGE:
DENSITY:
ADJACEN! ZONING
AND LAND USE:
A-2, Agricultural EstFte
39.'18 acres
N-
S-
E-
w-
A-2i
A-2i
A-2i
single family
agricultural
single family
agriculturaIA-2i
WATER AND SEWER:Not available to the site
PEYSICAL CEARAC. :The site contains a Class A wetland in thenorthwest corner of the site.
2OOO LAND USE PLAN:Agr i cu 1tural
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Northt est Wholesale Nursery
May 2, 1990
Page 2
APPLICABLE REGULATIONS
The Zoning Ordinance defines wholesale nursery as an enterprise
which conducts the wholesale of plants grorrn on site as well as
accessory items directly related to their care and maintenance(not including power equipment such as gas or engine mowers andfarm implements ) .
Section 20-574 of Conditional Uses in the A-2 District allows
wholesale nurseries as a conilitional use.
Section 20-257 requires the following specific conditions as partof approval for wholesale nurseries:
1. The site must be on a collectoridentified in the Comprehens ive
street or a minor arterial as
P1an.
2. The minimum lot size is five acres.
A11 storage and yaral areas, as irelI as buildings, must besetback 100 feet from public or private roatl right-of-ways
and 500 feet from an adjacent single family residence.
Al1 out.door storage areas must be completely screened by 100t
opaque fencing or berming.
m
ol idays
5. Light sources shall be shielded.
7. No outside speaker systems are allowed.
BACXGROUND
On February 5, 1985, the City Council approvetl the conditional
use permit for a wholesale nursery as shown on the site plan
stamped 'Receivetl January 21, I985" (Attachment *l).
On December 10, 1986, the City sent a letter to l{essrs. VanHoef
and Wilson stating that a condition of the conditional use permit
approval for the wholesale nursery was a requirement of aplanting screen in the southwest corner of the site (Attachment
*2t. The applicant sent a letter dated Decenber 16, 1986, in
response to staffrs letter stating that the delay in compliancefor the screening conilition was a result of developments beyondtheir control and that the screening would be completed in thespring of 1987 (Attachment t3). Staff sent a letter in responsethe December 15th letter stating that it was understood thae an
extension until June 1, 1987, for the site improvements to be
completed was approved by the City (Attachment l4).
4
5 Hours of operation sha11 be from 7:00 a.m. to 6:00
Monday through Saturilay on1y. Work on Sundays analis not permitted.
p
h
3
Northwest WholesaIe Nursery
May 2, 1990
Page 3
on December 11, 1987, the city sent a letter to Mr. VanHoef
clarifying that any alteration to the wetlands on the subject
properly would require a wetland alteration permit from che City
(Attachment *5).
on July 6, 1988, staff sent Mr. vanHoef a letter in regarils to
the shade house structule located on the wholesale nursery site
and other activities occurring on the site. Staff stated that
these activities including the shade house rrere considered an
expansion to vrhat iras apProved with the original conditional use
permit for the wholesale nursery. For these activities to be
permitted, a conditional use permit must be received from che
City providing approval for expansion of the wholesal.e nursery.
The letter verified that staff would alloir the shade structure to
remain on site due to the hot and dry weather that rre had been
experiencing with the condition that an application be made by
August 29, 1988, for a conditional use permit for the expansion
of the business, a wetland alteration permit for the proposal to
fill in a portion of the lvetlanil and showing that that shade
strucLure would be moveal to meet the requireil setbacks
( Attachmen! {*6 ) .
on August 15, 1988, staff received the proposed site plan anal
application for the expansion of Northwest Nursery and a letter
explaining the future expansion of the site (Attachment *7).Staff submitteal a letter back to the applicant stating that for
the process to proceedr a submittal of 26 copies of the siteplan, application fee (S150 for conditional use permit and $150for wetland alteration permit) and a property owners list within
500 feet was required. It was further stated that the site plan
would have to contain the topography of the site, the proPosed
grading and drainage and details on the proposed pond for the
wetland alteration permit. Also, it was stated that if the shade
structure was not moved to meet the 100 foot setback fron the
property Iine, a variance would have to be received (Attachment
*8). The public hearings were rescheduletl several times in orderfor a complete application to be submitted by the applicant(Attachment *9).
On January 4, 1989, the Planning Commission reviewed the con-ditional use permit for expansion of the whol.esale nursery opera-tion, the wetland alteration pernit for alteration of the Class A
wetland and a setback variance for the shade structure. The
Planning Comurission voted to table action on the item until atldi-tional information could be provided by staff and the applicant
answering questions raised by the Planning commission antl adja-
cent residents (Attachment ll0).
A letter fron the applicant was sent to staff on January 25,
1989, requesting that aftser consideration of the cost quotes
received and time involved concerning the atlditional requirements
Northwest Wholesale Nursery
May 2, 1990
Page 4
from the Planning Commission, the applicant felt that resche-duling the application for a Iater date would be appropriate.The applicant stated that they would pursue obtaining theoutlined requirements sometime in October or November of I989(Attachment *I1). At this point, staff tlid not move ahead withthe application.
In February of 1989, staff was updating action taken on thewholesale nursery site and found the letter from the applicantrequesting that the application be delayed until September orOctober of 1989. The reason the applicant was going through theconditional use permit, rretland alteration permit and varianceproceclure nas that staff hail required the applicant to do such orelse they would have been in violation of the conditional usepermit, wetland and zoning ordinance. Staff at that time con-tacted the applicant to question if it had been agreeil that theapplication woulcl be delayed until the fall of 1989 and to makeit understood that to wait that long would not be appropriate.
In spring of 1989, staff started t.o receive complaints fromKevin Finger, the neighbor to the east of the nursery site, inresponse to activities taking place at Northirest Nursery.
On July 28, 1989, staff was informed of the fi11in9 taking placeat Northr4rest Nursery without permission fron the City.
On August 2, L989, staff sent a letter to the applicant statingthat the fi11in9 that iras taking place on the nursery site was inviolation of the wetland ordinance and the conditionaL use permit
and that the applicant must make a submittal to continue theapplication process immediately. Staff allowed the applicantuntil September 25, 1989, to make the application inctuding theinformation requested by the Planning Commission in January,1989 (Attachment *12 ).
On September 11, 1989, Kevin Pinger presented a letter and
discussed his concerns with Northwest Nursery and staff duringthe Vistors Presentation at the City Council meeting. At thattime, the Council directed staff to bring the issue back in frontof the Council at the next Council meeting to consider revocationof the conditional use permit for Northwest Nursery. Staff sche-duled it for the October 9, 1989, meeting to allow the requirealpublic hearing notice to be processed (Attachment 113).
on October 9, 1989, the City Council reviewed consideration to
revoke Northwest Nurseryrs conditional use permit. The City
Council voted to deny revocation with the following conditions:
The applicant shall redirect runoff from the nursery by using
one of the alternatives shown on the ilrainage plans as shown on
Sheet 4 of the plans dated September 27. L989 and approved by
t{nDOT and City Engineer by June 1, 1990.
1
2
Northwest Wholesale Nursery
ltay 2, 1990
Page 5
The applicant sha11 proceed immediately with the applicationfor expansion of the 1985 conditional use permit for the
wholesale nursery and proceed with the application for
wetland alteration for existing filling and proposetl fi11in9
adjacent to the wetlands and receive such permits by June 1,
1990.
3 By October 16, 1989, the applicant shaIl instaLl Type III
erosion control belween the berm anil holding area in che
southeast corner of the nursery site to prevent runoff and
sedinentation from entering adjacent properties.
4. The applicant shal1 provide a letter of creilit as determined
by the City Engineer and. Planning Director to ensure the
drainage improvements and proposed landscape is completed.
The applicant shal1 remove
structure by June I, 1990.
the existing non-conforming shade
1. The definition of a
Northwest Nursery.
wholesale nursery and how it applies to
2. The drainage issues and related impacts to adjacent properties.
3 Expansion beyond the approved site plan from the originalconilitional use permit and satisfaction of conditions of
approval for the original I985 conditional use permit.
Location of structures rdithin the required setbacks.
The filling of portions of the property adjacent to wetlanils
and proposed alterations to the Class A and B iretlands.
1 DEFINITION OF WHOLESALE NURSERY
During the Planning Comnission in January of 1989, it wasdiscussed whether or not Northwest Nursery mec the City Codedefinition of wholesale nursery. The City Code defines a whole-sale nursery as nan enterprise which conducts the wholesale ofplants grohrn on site as well as accessory items directl,y relatedto their care and maintenance (not including power equipment suchas gas or engine mowers and farn implements)". It was commentedthat Northi{est Nursely has potted plants on site which are notgrowing in the ground. The definition of wholesale nursery iras
addecl to the City Code as part of the zoning orilinance amendment
5
4
5
ANALYS I S
The major issues for the Northwest Nursery conditional use arethe following:
Northwest lrlholesale Nursery
Uay 2, 1990
Page 5
to al1ow wholesale nurseries as a conditional use in the A-2District.
2. DRAINAGE ISSUES AND RELATED IMPACTS TO ADJACENT PR OPERT I ES
An adjacent property property owner to the east of the nursery(Finger) has claimed that drainage from the nursery site hasimpacted their property specifically as a result of irrigationtaking place at the nursery. Staff has net with the applicant onsite to discuss the drainage problems occurring at Northwest.Nursery and on adjacent properties. Drainage from the nurserysit.e is directed to a culvert that crosses E!ey. 101 to the eastand directs drainage into che Finger propelty adjacent to Hwy.L01. The runoff is then directecl north along the east sitle of
Hwy. 101 and enters another culvert back across Hwy. I01 and intothe wetlands located to the north of the nursery. Ihe drainageflow follows the natural contours of the property. The culvert
under Hwy. 101 that drains the nursery site also handles rrater
from parcels located farther to the south along the highway.
Sheet 4 of the plans illustrates detaileil grading and drainageplans proposed by the applicant to alleviate the drainageproblems the Fingers are experiencing. In the letter fron theapplicant, Mr. VanHoef has outlined two options to remove anydrainage impacts from the nursery to the Finger property.Currently, as previously stated, there is a culvert underneathIIwy. 101 directing drainage from the nursery sit.e to the Fingerproperty. The culvert was installed and is controlled by the
Minnesota Department of Transportation. The applicant is pro-
posing to work with the Highway Department to redirect runoff
Staff also asked the City Attorney to review rrhether or not
Northrdest Nursery qualifies as a wholesale nursery under the CityZoning Ordinance since they grow some nursery stock in potsrather than in the ground and since they truck in plant materiaLfor resale off-site. The City Attorney has stateal that thedefinition does not reguire that plants be grown in the groundrather than pots since it does not specifically state the plants
have to be grown in the ground (Attachnent *14). Enforcement ofthe ordinance shoulal be construed in the property ownerrs favor
and tha! Northwest Nursery qualifies as a wholesale nursery.During the review of the conditional use permit and zoning ordi-nance amendment for the Northwest Nursery to allow wholesale nur-series as a conditional use, the applicant provided information
on what would be occurring on the site. The type of growing andstorage of plants on site did not seem a concern to the planning
Commission and City Council when the conditional use permit andzoning ordinance amendment were approvecl.
Therefore, staff feels that the Northwest Nursery does meet thedefinition of a wholesale nursery as defined by the ChanhassenCity Code and feels that this is not an issue r,rith whether or notthe nursery should continue to be allowed as a conditional use.
Northirest Wholesale Nursery
May 2, 1990
Page 7
by eliminating the culvert and excavating a ditch that woulil run
north along the west side of Hwy. 101 outletting into the setland(Alternative *2). This proposal would prevent the runoff from
the nursery and from other properties draining into the culverts
from entering the Finger property. If the Highrray Department
does not alloi, the culvert to be removed and to instead use the
ditch along IIwy. 101 for drainage, the applicant is proposing to
provide a berm along the southeast corner of the site which would
collect the runoff from the nursery site. The runoff t ould then
be piped along the east side of the nursery site aaljacent to ltwy.
I01 and would enter a poniling area adjacent to the Class B
wetland on the north side of the property. The runoff will then
continue to flow into the Class A wetlanil as it does naturally(Alternative *1). This proposal Prevents runoff from the nursery
site from entering the Finger property but ilrainage from other
parcels that flows through the culvert onto the Finger property
woulcl continue to do so. (Sheet 4 of the plans illustrates the
berming, ponding areas and piping to redirect runoff from the
Finger property and to keep it on the nursery site.) The appli-
cant is also proposing to pave a portion of the driveway where
runoff will be collected from the site and directed to the
drainage swale or pipe. The driveway will be paved with either
alternative.
The applicant proceeded with Alternative *2 since they received
DlnDoTr s approval . The applicant has constructed the ditch along
Ewy. 101 and has instal,led a culvert under their driveway. The
applicant will also be removing the ditch under Hwy. 101
outletting onto the Finger property. The grading of the ditchwill be completed in the near future and the applicant will then
be seeding and landscaping the slope. The applicant hasinstalled Type III erosion control as required by the City
Council's october 9th action. Staff is recommenaling that it be
extended to the north a1on9 Hwy. I01 to the culvert under Hwy.
101 and that the slope along the ditch be less steep.
The area south of the driveway is proposed for plantings which
require daily watering. It is recommenaled to reiluce seiliments
from reaching the new ditch along T.H. 10I that a sealiment pond
be constructed as proposed on their drawing (Alternative *2.1
The outlet pipe will have to be modified to drain into the newditch along T. H. 101.
In addition, the applicant will be paving a portion of the drive-
r,ray to further direct drainage to the new di.tch. Staff is
recommending adilitional catch basins at the base of the driveiray.
As required by the City Council, the applicant submitted a letterof credit to cover the cost of improvements. The plans proposed
silt screen fence around the remaining areas adjacent to thewetlands. Type III erosion control is recommendetl due to thepotential impact on adjacent wetlands.
Northirest WholesaIe Nursery
May 2, 1990
Page 8
The applicant has shown staff photographs taken in early spring,prior to any irrigation taking place on the nursery site, which
shows that there is a large amount of runoff crossing Hwy. 101
and entering the Finger property. The applicant has providedstaff with the photographs to show that it is not necessarily theirrigation of the site that is causing the drainage problems onthe Finger property. It appears thae natural runoff from adja-cent properties adds to the drainage problems that the Fingersare experiencing and not directly a result of the activities ofthe nursery. The corrections to the drainage problems on thenursery site that the applicant is proposing wil,t remove any off-site drainage from the nursery site from entering the Finger pro-perty and should resolve the issue and concerns that the Fingers
had with the seasonal flooding of their property.
3. EXPANSION BEYOND THE APPROVED SITE PLAN FOR THE ORIGINAL
CONDITIONAL USE PERMIT
Sheet I of the attached plans provide a copy of the approved siteplan dated January 21, 1985. The second sheet provides detailson existing conditions as of fal1 of L989. The thirtl sheet showsthe ultimate expansion of the site. The fourth sheet is a detailof the easterly portion of the nursery site. The original plan
was very basic showing just existing buildings and activitiesthat would be occurring at the wholesale nursery in the immediatefuture. The applicant had been given direction by staff thatproviding an expansion plan was not necessary at that time. The
1985 plan approved as palt of the conditional use permit for thewholesale nursery allowed and required the following:
Proposed planting screen in the southeast corner of the siteto screen the holding area from Hwy. 101.
The plan included one holding area adjacent to Ewy. 10I, agrowing area along the southerly portion of the property, afuture storage area behind the barn, an existing house, twostorage bui lclings, and barn.
Sheet 2 of the plans (existing conditions) show that the house,two sheds and barn as located on the approved site plan are sti11in existence and being used as part of the rholesale nursery.
The planting area as approved on Che original site plan is st.i11in existence and does not appear to have been expandeil beyondwhat nas approved. The following is a list of areas that have
been added or expantled over what was originally approved.
1. The holding area located in the southeast corner of the site
has been expanded beyond what was originally approved.
2. A shade structure has been aclded sith the storage of pottealplants located north of the existing house, adjacent to Itwy.
101.
1
2.
Northr.rest hlholesale Nursery
Uay 2, 1990
Page 9
3 Eolding areas for shrubs have beenof the new shade structure. Theseoriginal site plan.
to the east and west
are not shown on the
added
areas
4 Teo larger holding areas for shrubs have
west of the barn ailjacent to the Class B
An area has been filIed as shown on Sheet
adjacent to the proposeil shade structure.
been aclded to the
wetlands.
4 of the plans5
In sunmary, the applicant has increased the holding areas with
potted plants over what was originally approved with the 1985
site pIan. The planting areas have remained the same and the
applicant has included an additional structure on site.
As far as meeting the conditions of the original site p1an, the
applicant has met the condition of providing planting screen in
the southeast corner of the site. The zoning ordinance requires
the following specific conditions for a wholesale nursery!
1. The site must be on a collector street or a minor arterial as
identified in the Comprehensive P1an.
The nursery meets this condition.
2
3
The minimum lot size is five acres.
The nursery meets this condition.
A11 storage and yard areas, as well as buildings, must be
setback I00 feet from public or private road right-of-vrays
and 500 feet from an ailjacent single family residence.
The existing shade structure does not meet this requirement,
but the applicant is proposing to renove the existing shade
structure and replace it with a Larger shade structure that
would meet the L00 foot setback from a public or private roadright-of-ray. It appears that the structure would also be
500 feet fron adjaceDt single fanily resialences but the
applicant should provide a plan verifying that the setback is
being met.
All outdoor storage areas must be completely screenecl by I00t
opaque fencing or berming.
The applicant is proposing additional heavy screening along
Ewy. 101 to further screen the holding areas (see sheet 4 ofthe plans). A condition of approving the shade structurewould that it would have to be screened by 100t opaque
fencing to Beet the condition for a wholesale nursery.
4.
Northwest Wholesale Nursery
ltay 2, 1990
Page 10
5 Ilours of operation shall
Monday through Saturday
is not permitted.
be from 7:00on1y. Work on
a.m. to 6:00
anclSundays
p.m.
holidays
4. PROPOSED EXPANSION OF THE SITE.
The applicant has stated that their hours of operation are
from 7:00 a.D. to 5:00 p.n. Uonday through Saturday only.
6. Light sources sha1l be shielded.
Northrest Nursery meets this reguirement.
7. No outside speaker systems are al1owed.
Northwest Nursery meets this requirement.
In summary, the Northwest Nursery has expanded beyond what irasoriginally approved in 1985. Specifically, the holding areas
have been increased in size and number, a shade structure has
been added and partial filling of the site has occurred. As faras conditions of site plan approval , it appears that the appli-cant has met the screening condition of the southeast corner ofthe site. The screening is proposed to be increased. The nur-sery meets the specific conditions for a wholesale nursery exceptfor the existing shade structure which is proposed to be moved to
meet the setbacks.
Staff has directed the applicant to provide a plan showing theultimate expansion to the nursery which could be part of the
application for amendment to the conditional use permit and would
alloh, the applicant the ability to expanil if approveil by the City
r,{ithout having to go through the conClitional use permit again.
Sheet 3 of the plans shorrs the proposed ultimate expansion of thesite. The proposetl expansion of the nursery site does notinclude any great expansion over what is existing today. Theonly further expansion will be the future planting areas onthe south side of the Class A wetland and proposed alterations tothe Class B wetland adjacent to the Class A wetland.
5. LOCATION OF STRUCTURES WITHIN THE REOUIRED SETBACKS.
The applicant constructed a shade structure which is locatedwithin the 100 foot setback requirenent for any structures. fhe
zoning ordinance requires any storage areas to be setback 100
feet from public right-of-ways and to be screened with 100t opa-que fence. On Sheet 3 of the plans, the applieant is proposing
to remove the exist,ing shade structure anil replace it with alarger one which is located 100 feet from the public ROW from
Hwy. 101. The applicant has also locateil plantings within theshelter and closer to Hwy. 101. We would recom.mend that June 1,
1990, be set as the deadline for removal of the non-conformingstructure and plantings.
Northwest Wholesale Nursery
May 2, 1990
Page J.l
6. THE FILLING OF PORTIONS OF THE PROPERTY ADJACENT TO WETLANDS
AND PROPOSED ALTERATIONS TO THE CLASS A AND B WETLANDS.
The applicant has filted in a portion of the ravine located north
of the barn. Staff placed a istop work orderr on the site to
prevent any continued filling of the property and required the
applicant to install erosion control to protect the adjacent
vretlands from the fi1l. Sheet 4 of the plans illustrates the
area that was filled and shorrs areas that the applicant is pro-
posing to fill to level out a area which will be usecl for future
storage areas. The Cl,ass B wetland adjacent to the proposed fill
will not be disturbed. The applicant has placed erosion control
between the existing fiLl area and the wetlands. Staff is pro-
posing that the erosion control must be maintained until improve-
ments to the site are complete. The applicant has been storing
wootl chips and mulch north of the barn. The wood chips/mulch is
being pushed down the slope and into a treeil area adjacent to teh
Class B wetland. The wood chips/mulch must b eremoved from this
area and stored in an area away from the wetlands and in an area
contained anil screened by a fence.
Miscel laneous
Mr. Finger has also stated t.hat the location of trucks and truck
activity on site should be moved from directly behind the house
to behinil the barn and hi11. By moving the truck activityfurther into the site, noise and other disturbances would be
reduced. Should the applicant be permitted to proceed with an
exDansion of the conditional use permit a condition of approval
could be to move the truck activity on site. Currently, where
the trucking activity is taking place is not in violation of the
existing conditional use permit.
RECOMIT1ENDAT I ON
The applicant has provicled plans which staff feels will addressthe drainage issues raised by Mr. Finger. Staff feels that the
question of whether or not the Northrrest Nursery is a wholesale
nursery has also been addressed. There is no guestion that the
nursery has expanded beyonil what was originally approved in I985but staff does not feel that the expansion that has taken placeis that out of character with the use of the property as a
wholesale nursery and does not feel it is a negative impact to
adjacent properties. The applicant has stated that the hours ofoperation does not exceed those that wouLd be typically allowedwith any wholesale nursery (7:00 a.m to 6:00 p.m. llonday throughSaturday). The number of enployees anal amount of eguipment used
on site has not greatly increased over what originally existed in
1985 and again, staff does not feel rrhat currently exists is over
antl above what a typical nursery would include.
Northirest lilholesale Nursery
Itiay 2, 1990
Page 12
Therefore, staff feels that expansion of the conditional use pe!-
mit could be approved with certain conditions.
iThe Planning Commission recommends approval of Conditional Use
Permit 185-I as shown on plans dated April 2, 1990, with the
following conditions:
1. The applicant shall redirect runoff from the
Alternative *2 shown on the drainage plans as
Sheet 4 of the plans dated September 27, 1989
MnDOT and City Engineer by June l, 1990.
nursery by us ing
shown on
and approved by
2. The applicant shal1 remove
and plantings structure by
the existing non-conforning shade
June 1, 1990.
ail jacent
bya
The wood chips/mulch sha1l be removecl from the area
to the wetlands and shal1 be contained and screened
f ence .
3
4
5
The applicant shallplan reflecting the
ments.
for approvalsite grading
a revised grading
and proposed improve-
submi t
recent
The applicant shall construct a sediment ponil along the southsitle of the driveway per Alternative *2 and modify the outletpipe to drain into the T.H. 101 ditch.
6. Side slopes adjacent to T.H. 101 shall not exceed 3:I.
7. hlood fiber blanket shall be used on slopes 3:1 or greater.
the driveway to convey8. Catch basins shall be installetl onrunoff into the ditch.
9. The applicant sha1l obtain and comply with
required from the pertiment agencies, i.e.District, tttnDOT and Minnesota DNR.
all permits
Wate r s hed
10. The applicant shall provide a letter of credit as iletermineil
by the City Engineer and Planning Director to isnure the
drainage improvements, proposed landscaping and erosion
control measures are completed.
11. All erosion control shall be Type III, maintained and removed
at the request of the City Engineer.
12. The applicant shal1 receive and comply with all conditions of
the wetland alteration permit. '
Northwest l{ho}esale Nursery
Hay 2, 1990
Page 13
WETI,AND ALTERATION PERMIT
The applicant is proposing to construct one large and one small
pond within the Class B wetland. The large pond is located in theeasterly portion of the wetland and the snaller pond is located atthe southerly portion of the uetland. The ponds that are proposedin the Class B netlands are adjacent to a larger Class A wetland.
The Class A setland is a very large and valuable wetland. Theclass B wetland is located around the edge of the Class A wetland
and has experienced erosion fron the nursery site. The large Class
A wetland is protected by the DNR and any activity within this area
would also require a DNR peroit.
The proposed alterations to the Class B wetland are shown on thethird page of the pl.ans. The third page of the plans also provides
a cross section of the ponding areas. The plans do not show the
proposed elevations or contours of the ponding areas. Staff needsdetails on each of the ponding areas providing existing and
proposed elevations and contours and showing that the ponds are
neeting the conditions of the Fish and Wildlife service. The cityalso requires infornation on uhere the dredged naterials nill beplaced to ensure that they are not deposited within the wetland
areas .
The Class B wetland also runs along the northerly portion of thesite to H!ry. 101. The applicant is proposing to fiII a portion ofa ravine directly north of the house and existing barn. The areaproposed for grading is outside of the uetland area and theapplicant has provided TlT)e III erosion control along the edge ofthe wetland to protect it frou any erosion fron the proposedgrading. Additionally, to the vest of the proposed grading, theapplicant has been storing wood chips. These piles of wood chipsare being pushed down the hill where they are depositing near the
edge of the uetland. These wood chip piles nust be removed fronthe edge of the hill and nust be contained and screened within an
area on the site by fencing naterial to prevent any further erosioninto lretland or other sensitive areas.
There is a high arount of runoff and erosion of soils fron theplanting areas south of the C1ass A uetland. Currently, thiserosion is entering the Class B rretland edge. To reDove slltationfron entering the uetlands, staff is recornmending that the proposedlarge ponding area be shlfted to the aouth and west to collectrunoff fron the planting areas. Upon J,nspection of the site, thisarea seens more appropriate for a pond due to the topography.
RECOUIi{ENDATION
At this tine staff cannot make a final reconmendation on theproposed uetland alteration pernit until the applicant provides
Iorthwest lfholesale Nursery
Uay 2, 1990
Page 14
more detailed grading plans on the ponding areas showing existing
and proposed contours, slopes and eLevations of the ponding areas
and hou the proposed ponding areas shall be designed to the sixFish and Vlildlife standards. Therefore, staff is reconmending thePlanning Conmission table action on the setland alteration pernituntil the appropriate plans have been subnitted.
ATTACH}.{ENTS
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
L7.
18.
19.
21.
22.
City Council ninutes dated February 5, 1985, including staffreport.I€tter fron Jo Ann Olsen dated Decenber 10, 1986.L€tter fron Northuest Nursery dated Decenber 16, 198G.Letter fron Jo Ann oLsen dated Decenber 18, 1986.Letter from Jo Ann Olsen dated DeceDber 11, 1986.I€tter fron Jo Ann Olsen dated July 5, 1988.L€tter fron Northwest Nursery dated Aug,ust 15, 1988.Letter fron Jo Ann Olsen dated Aug'ust 18, 1988.
Pub1ic hearing notices.
Planning Connission ninutes dated January 4, L989, and staffreport.I€tter from t{orthuest Nursery dated Januaty 25, L9a9.Letter fron Jo Ann Olsen dated August 2, 1989.L€tter from Kevin Finger dated Septenber 11, 1989.L€tter fron City Attorney dated Augrust 29, 1989.
NeDo fron Dave Henpel dated October 5, 1989.I€tter fron Northrrest Nursery dated SepteEber 25, 1989.L€tter from EarI Holasek dated Septenber 9, 1989.Letter from David Blanski dated Septenber 3, 1989.City Council ninutes dated October 9, 1989.
lleno from Dave IleDpeI dated April 25, 1990.
Plans dated April 2, 1990.
1.
CITY OF
EHANHISSEN
l.tay 2, 1990
llay 30, 1990
/<90-6 SUB
86-3 Site Pl.an
STAFF REPORT
Fz
C)J(LL
E
LrJh
CN
To Conbine fyo Lots to Create a 3.65 Acre Site andConstruct a 48,130 Square Foot Addition to the PII!
Of f ice/l,lanuf acturing Building
I.ots 1 and 2, Block 1, Chanhassen Lakes Business Park 5thAddition
PROPOSAL:
LOCATION:
APPLICANT:PMT Corporation
1500 Park Road
Chanhassen, l.IN 55317
IOP, Industrial Office Park
vacant, oyned by PllTCity Public Works
vacant, approved for Rone Corp.
l,Icclynn Bakery
WATER AND SET{ER:Available
PEYSfCAL CHARAqIER.: The 3.65 acre site is comprised of 2underlying parcel.s. The eastern parcel has .been fully developed andis currently occupied by the existing PItfT Building. The restern parcel,located at the intersection of Park Road and Audubon Road, is currentlyvacant and is generally devoid of distinguishing natural features.There are no identified wetlands or uater storage areas on eitherproperty with the general drainage pattern towards the northeast. sitegrades drop from a high of 952t at the northw€Et corner of the site dor.rrlto 945r near Park Road. cradea are generally gentl.e except ln theextreDe northwest corner of the property.
2OOO IAND USE PIAN:Industrial
N - IOP,
S - IOP;
E - IOP;
W - IOP,
PC DATE:
CC DATE:
CASE *:
PRESENT ZONING:
AATACENT ZONING AND
IAND USE:
PlfT corporation
Uay 2, 1990
Page 2
PROPOSAL/SUUIITARY
The applicants are requesting approvals that would result in the
construction of a 48,130 square foot addition to the existing PUTBuilding. The existing 25,000 square foot officelmanufacturingfacility vas originally approved by the city in 1985. At thattine, plans indicating how the additional expansion irould take
place were not developed, however, it was clear that PI{T did intendto expand onto the property for which the building is currentlyproposed. The site was developed in accordance with approvedplans. During the approval process, there was an issue generated
fron the fact that the original plans would have exceeded the 70*
hard surface coverage that was allosed. A condition of approval
was that this Datter be resolved by negotiations with staff which
resulted in a revised plan showing the enlargenent of the site sothat Iot coverage was reduced below the maxinum nunber.
The current proposal is reasonably well designed and will result in
the developnent of an attractive conplex for PUT. Unlike the firstaddition, the new building is a 2 story structure that features
extensive glazing. It will utilize pre-cast concrete panels
natching the first phase construction uith the prorninent, western
corner of the building featuring a glass curtain waI1. The siteplan is also generally well designed. staff initially had great
concerns with the proposal to provide access directly to Audubon
Road from the site. we have investigated this natter further and
our concerns have been resolved by the reconfiguration of the curbcut shifting it to the south so that it aligns vith the entrance to
the Ucclynn site directly across Audubon Road. We believe that the
revised plan is an acceptab}e conpronise that balances traffic
safety and site access. Holrever, the entrance drive needs to benodified fron its current substandard 22r width. A 3or wide accessdrive is needed to facilitate turning Dovements of trucks. Underthe current plan trucks uould have a difficult tine naneuvering
around the entrance and would need to swing out into on-coningtraffic on Audubon Road to enter the site. The northlrestern cornerof the building may need to be nodified to resolve this natter.
Parking uas a concern due to the fact that there is an obviousparking shortfall.
In the opinion of the owner, the current alte plan wi).I providesufficient parking for their current employees and projectedgrowth. Houever, to neet ordinance requirements, a proof ofparking plan is illustrated shoving the potential construction of64 additional parking stalls on adjacent property to the north,also owred by the applicant. The proof of parking concept isalLoued under the recently revised ordinance for parkingrequirements. The right to develop these parkJ.ng stalls will beprotected by a pemanently recorded easement and the City wiU beallolred to require their inetallation if at some point they proveto be necessary. Utilities are available at the site. Staff hasproposed conditions that uould protect existing utilities whileproviding for satisfactory handling of on site drainage concerns.site landscaping is also reasonably well prepared. Total hard
PlfT Corporation
llay 2, 1990
Page 3
surface
aI Iowed.
coverage is 58.58 which conplies with the 70* maxirnun
Based upon the foregoing, staff is recoouending that the site plan
and subdivLsion, which J.s necessary to nerge the two underlyingparcels into one unified site, be approved subj ect to appropriateconditions.
GENERAL SITE PI,AN/ARCHITECTURE
Itluch of the design of the site plan sas essentially established
when the Phase I Building rras approved. Its orientation to Park
Road with truck parking at the rear and its positioning relative tothe vacant parcel serve to linit design freedom. working with thatlinitation, the plan, in our opinion, is quite reasonable.
Iirhereas, the original building is a one story structure, thecurrent addition is proposed to be 2 stories higb and rrill alnosttriple the amount of square footage Ln the PtrtT operation. Ehe twosections of the building are linked by a connon courtyard area rrithan outdoor plaza that will contain employee support functions.Staff would prefer that the parking area located in front of the
new addition not be a dead end one due to its length and we also
would prefer to avoid having a new intersection on Audubon Road.
However, upon further investigation ye believe that ue have beenable to safely acconmodate both features. Staff concluded that itis probably the most reasonable uay to develop the site. staffrs
concerns with access onto Audubon Road pertain largely to traffic
volunes nhich are discussed in a following section. However, these
concerns were in a large part resolved 5y the reconfiguradion ofthe site plan and building deslgn to per:nit the construction of the
Audubon curb cut directly across fron the existing trtccllrnn curb cut
which is at a point that rre believe is the nost safe.
Architecturally, the new addition is well designed. Unlike thesingle story first phase, the new addition is a 2 story building.The exterior materials are conpatible with the first phaseconstruction utilizing extensive glazing rrith tinted reflectiveglass and textured pre-cast concrete panels. The southwesterncorner of the building, which is at the most prominent location atthe intersection of Park Road and Audubon Road, features glasscurtain wall construction. As with the first phase, truck docksare located on the north side of the building vhere they siII beconcealed frou nost off site vieus by the structure. An unusualfeature of the nev addition iE that five of the parking stalls arelocated under a 2 Etory overhang in the northwest corner of thestructure. The connecting link between the two buildings wllloffer an exterior courtyard for use by enployees. The entirebuilding must be sprinklered to Deet current codes.
Pl,[I Corporation
Uay 2, 1990
Page 4
Detaits need to be provided for screening of HvAc equipnent. Roof
nounted EVAC equipDent uould be visible fron a relatively longdistance. Either parapet wall should be constructed to screen this
equipnent or a screen uaII constructed of Daterials that visually
natch the building exterior ahould be provided. In addition, thecurrent building at this tine has unscreened exterior trashdumpsters. screened trash enclosures constructed of naterialsidentical to those used for the building exterior need to beprovided and constructed on site.
ACCESS /PARXING
At the present tine the building is served by 2 curb cuts onto ParkRoad. P1ans call for provision of an additional curb cut on
Audubon Road. Staff initially had severe reservations vith the
curb cut proposed for Audubon Road. It was our belief was this
road would carry substantial volunes of traffic in the future as
developDent occurs and that it is nomally city policy to linit the
nunber of curb cuts in such situations since each turning moveuentis a potential traffic hazard. We believed that directing all
access to Park Road was a safer alternative. After discussing thematter rrith the applicants, we researched it further and ue sereable to incorporate more recent traffic projection data that has
recently been generated by the Eastern Carver County TransportationStudy. Data fron the study indicates that traffic projections for
Audubon Road and Park Road are relatively equal at approxinately
5,OOO trips per day projected for the Year 2ooo. we were initiallyintrigrued by this result, believing that a higher traffic volume
rvould exist on Audubon Road, houever, it appears that highertraffic volunes will exist on Audubon Road but these occur south of
Park Road wittr the reason being that the traffic will be oriented
south to access T.H. 212. tlhen the potential for a curb cut on
Audubon Road it becane viable, staff uorked with the applicants to
develop an acceptable design. The initial proposal had the curbcut located near the northuest corner of the site where it
encountered relatively 6teep grades and shere it was offset fromthe Uccllmn t s driveway by approxiuately 60 feet shich would inducea turning uoveuent problen. Ihe site plan yas then redesigmed tosving the Audubon Road curb cut to the south so that it aligms withthe Uccllmn curb cut and what staff believes to be an acceptablelocation. In so doing, the grade probleDs uere also resolved.Ilhile we find the neu access to be Ln an acceptable location itstill needs soue redesigm. The access ie only 22. vLde shere asthe ordinance requLres a mininum of 26r and the Engineering
Department requires 30t for truck access points shich is the casehere. Ttre sider drive is needed to facilitate truck naneuvering
and to insure that trucks turning into the site do not need tosuing wide into on-coning traffic on Audubon Road. I{e believe thesite plan can be revised to accorn'rodate this change while keeplngthe driveway aligned with the llcclynnr s entrance, houever, the
Pt(I Corporatlon
Uay 2, 1990
Page 5
northnestern corner of the building rrill be likely to need to benodified since it is set on the currently proposed curb line. An
appropriate condition is provided.
Internal circulation is acceptable, although not optinal . Staff
has a concern uith the ability to Daneuver larger trucks on thesite, horever, the firn appears to use relatively few large trucksfor deliveries. As currently deBigmed, the truck loading bays onthe north Eide of the buildlng are desigmed to require trucks toenter from Audubon Road, exiting out onto Park Road. This kind oftruck novement is acceptable so long as trucks do not attenpt to
enter the site fron Park Road. Sigms should be posted on Park Roadindicating that the eastern curb cut is a truck exit only and a
comparabLe sign be placed on Audubon that it is a truck entrance.
Parking lot circulation is also not ideal since there is a 160 footlong dead end parking aisle. Ilowever, given the linitations of thesite, there did not appear to be very nany viable alternatives. Webelieve that constructing a connecting loop in the driveway up tothe Audubon Road curb cut would inpact the site visually and aLsohas construction probleDs due to placement of utitities ln thearea. A turn area to facilitate backing and turning noveuents isbeing provided at the end of the parking aisle.
Parking on the Phase I site has proven to be a problen since thereis often an apparent shortage of available sta1ls resulting in theparking of cars in a rnanner that restricts access. The Phase Ibuilding was required to have 44 parking stalIs against arequirenent that uas established at 33 stalls. These parkingprovisions have obviously proven to be inadequate based upon sitevisits. Staff believes that the problen is largely found in the
ordinance which existed at that tine. fhe ordinance has since been
revised requiring nixed use facilities such as this to have parkingsufficient to acconmodate the square footage devoted to each use.
Based upon the current ordinance, a total of 141 parking stalLs arerequired to satisfy the denand generated by the new building.
These are in addition to the 44 statls that are currently used to
serve the existing building resulting in a gross parking demand of185 stalls for the entire site. In the current plans, 83 neustalls uilf be constructed to serve the nen addition, resulting ina totaL ot L27 constructed atall6. The current ordinance allowsfor a concept known as proof of parking. Ihe proof of parking
concept essentlally neans that if a property osner believes thatthe ordlnance requires a greater nunber of parking stalls thenuould in fact be required to accomrodate their operations, that theexcess nurber of stalls need not be developed at the tiDe ofinitial construction. These are placed in a proof of parklng
reserve conditioned on the fact that the city can require then tobe installed rhenever it feels that a parking shortfall isapparent. A proof of parking concept is being proposed in thisplan with an unusuaL tvist. It is not possible to accommodate the
PllT Corporation
I.{ay 2, 1990
Page 6
58 additional required stalls on this property due to linitationson the site. However, the ovner does aLso control Iot 4 locatedinnediately north of the site that he is reserving for future
growEh of his operations. Plans call for the satisfaction of theproof of parking requireroent on that lot. The plans illustrate thepotential to develop 64 additional parking spaces on that site
although our calculations would indicate that only 58 stalls are
required to Deet the denands of the ordinance. Staff is satisfiedthat these stalIs would be located in a close enough proxinity tobe useful to the proposed construction. Houever, while ye arewilling to accept the proof of parking concept, it is subject to 3irnportant conditions. The first is that there be a pernanently
recorded easenent for parking and access purposes over Lot 4running in favor of the neuly conbined parcel containing theexisting PUT building. The easenent should be structured in sucha lray that it could not be vacated without the approval of theCity. The second consideration is that a condition should beplaced in approval noting that construction of the proof of parkingstalls shall be conpleted upon the request of the City after it
concl.udes that a parking shortfall does exist. The third conditionpertains to the potential development of lot 4 to the north. I{hile
we acknowledge that this parcel does have significant developDentpotential , staff has found that there is a wetland on the propertythat is not illustrated on the proposed concept p1an. We note thatthis concept plan has no official standing and no approvals arebeing reguested for it at this tine, it was nerely subnitted toillustrate the rationale in support of the proof of parkingconcept. we are wll.ling to accept it but would like this conceptplan to be redrafted in light of the placement of the uetland sothat we nay be certain that the proof of parking area is acceptably
Located to prevent inpact upon the wetland.
Provide a ninimun of 3 handicapped parking stalls as required tosatisfy building codes. Staff notes that 13 of the new parkingstalls are designed for conpact cars. This provision is allorredunder the new ordinance. These stalls should be clearly r0arkedrith directional signage.
GRADING AND DRJAINAGE
llost of the site rril1 be graded to acconmodate the expansion. TheEngineerlng DepartDent is concerned that fill prbposed along
Audubon Road sould bury a city uaternain 18r deep and require a 1Otextension to the fire hydrant. They are reconmending tfrat fitl inthis are be ellnlnated or held to a naxiuuu depth o1 4 feet. Anerosion control plan is required.
The site naturally drains to the northeast. The building expansionwill interfere sith the nomal flou of storn eater tron 1ocal.streets. Current plans call for intercepting this flow in a storn
PltT corporation
I.lay 2, 1990
Page 7
selrer, directing it around the building to an off site location.This line should be conveyed to the city since it carries raterfron the cityrs ston seuer system. The applicant wiII be requiredto enter into a developnent contract for the improvenent. Otherareas of the site siII be served by catch basin and atorrl seserthat should be privately naintained. Project approvals by theI{atershed District is required.
UTTLITIES
Public utilities are available.
required in two locations.
Additional fire hydrants are
I,ANDSCAPING
Site landscaping is reasonably well devetoped. The bern systen
along Park Road will be continued in the front of the ner, buildingwith vegetation located outside of the bern but on the property.
Due to the location of public utilities along Audubon Road, it isnot possible to construct a berD in this area. However, additionatscreening in the forn of plant naterial is provided along AudubonRoad. Landscaping on the north side of the property is relativetysparse, horrever, this exposure is going to be an internal parkinglot boundary at sone point in the future. Staff's onlyrecomendatlon to inprove the landscaping at this point in tine
concerns the location of the toad5.ng docks and visibility frou
Audubon Road into the rear portion of the building. I{e are
reconnending that an additional 4 DougLas Firs be placed in thenorthwest corner of the property to help screen direct lines ofsight of the rear of the building from southbound Audubon Road. wefurther recoDDend that the size of these trees be 8r to 12r at tineof installation since they will be screening a truck loading area.
The applicant should be avare that under provisions of current
ordinance requirements that a landscape bond uiII be necessarybefore any building permits can be issued. P1ant nateriats along
Audubon Road should be relocated as necessary to avoid placenent
over the city iratemal.n.
COI.IPLIANCE WITH TIIE ORDINANCE - IOP DISTRICT
Ordinance Proposed
3.65 acres
308 |
2901
68. stI{-40f E-72.
1 acre
150 r
200 |
llininum Iot Area
l{ininun Frontage
llininun I6t Depth
llaxinum Iot CoverageBullding Setbacks
70t
30r exterior
PIIIT Corporation
Uay 2, 1990
Page 8
Parking setbacks
10i
30i
10 1
185
interior
exteriorinterior
s-77 ) l{-51!
N-10. E-20 |
s-30 r w-301
Parking Stal.ls 127 existing
64 proof of
parkingtotal of 191
Building Height 4 stories/so t
Variances Required - None
SUBDIVISION APPROVAL,/PRELIUINARY PI.,AT
The applicant has nade application for subdivision approval to
conbine I.ots 1 and 2. Block 1, Chanhassen Iakes Business Park sthAddition. The conbination is a single request although no plat
document has yet been subnitted.
Prior to final plat approval, a final plat should be preparedillustratin!, neu easenents and where underlying easeroents need to
be renoved along the conDon property line. The following easenents
should be provided:
1. Standard drainage and utility easerents overall exteriorproperty lines.
2 Reconfira the location of drainage and utility easeuents alongthe rrestern and northern sides of the site to cover J.n-place
and proposed utilities.
3 Concurrently, provide a pernanently recorded easement over Lot4, Block 1, Chanhassen Lakes Business park 5th Addition,running in favor of the City for access and parking of up to64 parking stalls. fhe eaEenent should be worded so that itcannot be vacated rithout the vritten approval of the City of
Chanhassen.
Staff iB further reconnending
Lssued until the plat and all
recorded.
that no building pemits bereguired easenents have been
STAFF RECOUUENDATION
staff reconmends that Site PIan 186-3 and Subdivision *90-GPrelininary pat for PltT Corporation be approved sithout variances
subj ect to the following conditions:
4.
2 stories
PlrfT Corporation
l,lay 2, 1990
Page 9
Site Plan Conditions
1. HVAC equipnent shall be screened by a parapet wall or by a
screen waII constructed of materials conpatible uith thebuilding exterior. A11 exterior trash dumpsters shalL be
screened by a masonry enclosure constructed out of materialsconpatible with the principaL structure. The entire buildingnust be provided with fire sprinklers.
2. f,Iodi fy the site plan to provide a 30 foot yide drive onto
Audubon Road uhile Daintaining aligmment with the Ucclynnr sdriveway. Post trtruck entrancetr signs on the Audubon Roadcurb cut and an rexittr sign on the eastern Park Road curb cut.
3. Provide revised plans to illustrate the feasibility ofconstructing the 54 proof of parking stalls as outlined in thestaff report. These stalls shalI be constructed by the owner
upon request by the City at such tine that the City deterninesthere to be a parking shortfall.
- Provide at least 3 handicapped stalIs.
- Compact car stalls should be clearly marked with directional
signage.
4. Revise the grading plan to linit filt over the waternain along
Audubon Road to a ltraxiDum depth of 4 feet. Provide an erosioncontrol plan for approval .
5. The storm sewer extensi.on along Audubon Road and the northside of the site shall be built to city standards and conveyedto the City for maintenance upon conpletion. A deveLopnentagreenent is required. Watershed District approval isrequired.
5. Revise plans to provide two additional fire hydrants asdirected by the City Fire llarshal.
7. Revise the landscaping plans to add four, 8t- L2t high,
Douglas Firs in the northwestern corner of the site to screenthe loading docks. Relocate landscape material to avoidplacement over the city waternain. A landscape bond isrequired prior to the issuance of any building pemits.
8. Site plan approval is contingent upon the filing of the finalplat.
Subdivision Conditions
1. Provide the following easenents:
PltT corporation
l,lay 2, 1990
Page 10
a.Standard drainage and utility easements overall exteriorproperty lines.
Reconfirn the location of drainage and utility easenents
along the uestern and northern sides of the site to coverin-place and proposed utilities.
Concurrently, provlde a perDanently recorded easeDent
over Iot 4, Block 1, Chanhassen Lakes Business Park 5thAddition, running in favor of the City for access andparking of up to 64 parking stalIs. The easement shouldbe rrorded so that it cannot be vacated sithout thewritten approval of the City of Chanhassen.
d Staff is further reconnending that no building pernits be
issued until the plat and aII required easements have
been recorded.
2.Provide an acceptable final pLat.
3.Enter into a developnent agreement with the city.
ATTACHI{ENTS
Reduced copy of site p1an.
Reduced copy of landscape plan.
Reduced copy of grading and utility plan.
Reduced copy of elevation and exterior.
Reduced copy of parking plan.
l{eDo fron Sr. Engineering Eechnician dated April 26, 1990.
UeDo from Bullding Officlal dated April 23, 1990.
I!{eno froD Fire l{arsha} dated April 19 , 1990.Plan showing the locations of additional hydrants.I€tter frorn City Planner dated October 7, 1985.Ietter fron City Planner dated August 19, 1986.Staff report dated JuLy 23, 1986.
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CITY OF
EH[NH[SSEN
UBMANH]U
1O: PauI Krauss, Planning Directo!
FROH: tave Halnl, Sr. Ergineering llectrnician M
DAtts: lpril 26, 1990
STJBI: Site Plan Revi* for PIrtr
File tio. 90-13 Iand Use lte\ris,
Site Plan
Tte plans prq)ose two ilriva.ray acEesses to the site; cre fron Aldubon R€d ad
the ottrer frqn Park R€d. lire accEss proposed frcn Park Rcd is 30 feet rride
and appears to be a ccmron dri',r*ay to be sbared by tbe oristing office bdldingto ttte east. lte driveray accEss cr Audtubdr R€d is prolnseil to be 22 feetwicle. It is recrxrrEnded ttEt ttris driva,ay be enlarged to 30 feet in width with25-fot radiuses to accorrbdate trudr traffic.
Grading and Dlainage
It alpears ttnt a majoriQt of the site will elq>eriellce gn:ading to Geate thehrilding pati and parking 1ots. lte plans propose extensive filling cn ttterestelly portion of t}te 1ot strich siIL ilpeoe the Datural drainage IEttern. A
stotIlt ssrer is proposed to be exterried frcm Park R€d to qtvey t]le drainage
through the site as well as the runoff generated frcm this develc6rerrt.
Fi1I is also being placecl or try of tle City's l2-indr trunk BteErain yithin
the €setrEnt adiaent to Ardubo hd. Itrie rurld h:ry ttre EterrBin W to 18feet deep and require a hydrait exteneio of 10 feet. It is resroended t.tntfilt be rpt .llogl ea limilqt q) to four feet anl lardscaping be strategically
plac-etl so that it is not cn top of ttle EtelrBir.
ltE plans prqDse exteldhg the Cityrs €ristirg storm strer frcn park badrDrtherly parallel to Adubdt R6d to tbe rDrthr€st orner of tJte site, thenoeesterly a]'org the rprth pr:operty line to ttre City's existing 2l-inc*r stormsesE!. tto slaller systos are aJ'so grcfosed to dtvey nrpff frcur the site.Ihe first system is proposeat in the frant parking lot *lictt will handle ttre
parking lot and a portion of ttre hri1ding. ltE seclrd systsl is prcposecl in therear parking 1ot wtrich witl handle the prking 1ot and tlle rslainiltg portidts of
the building.
690 COULTER ORIVE. P.O. BOX 147 ' CHANHASSEN, MINNESOTA 55317
(612) 937-1900. FAX (612) 937-5739
Paul Klauss
April 26, 1990
Page 2
Erosidl Cdttrol
!*e plans do not inchde any erosion dltrol.
that prcEEr protestion can be provided.
Eris needs to be eddressed so
I
Reocmended Conditions
ltre &iveoay acress off of Ardubo Rcti stla]-l be widened to 30 feet to
better accsfirrcdate truck traffic.
Gar'j warren, ciqr Eryineer
kt:n
To i.rtsure proper c,peration and Dairtenanoe pracEic€s, the prcposed minline
st rm s€rrer systan (within the City's dlrainage alri utility as@llts ) shoulil be
onvelred to the City. City inspecCion of ttp otstruction of said line wiIL be
reguired.
Utilities
lnr:icipa.I. sanitary serler and nater servie has beer stubbed to the prqertlr line
frcn lblk Road.
2. Ihe stotrn serder systern prcposed wittrin the Cityrs drainage and utility
easerEnt shall be converyed to ttre City.
3 . Storn &ainage systas strall be designed for a l0ryea! stolm e\rent.
Detaileal calculations shall be provided for the City Etgineer to revien.
4. Placerent of fill over the Citlr's ratel:Eain along Adubdl Roail stla].l be
limited to four feet of filI. lb benring or landscaping rrill be a1lcrreddirectly above the ratemain. the alplicant stral1 rcrk with staff in
plac€flEnt of landscaping within tlre drainage and utili.ty eassent.
5. An erosion cultrol plan stall be suhdtteal for revisr and appro\ral blr the
City Engineer.
5. the applicant shall obtain and cc(p1y wittr the watershed District pe-Enit.
7. Ite applicant sttalI provide a letter of sedit or oash escro, to be
detemined by the Cit!, Engineer for inqncticr fees and guarantee proper
installation of the "mainline" stolm s*r.
690 COULTER DRIVE. P.O. BOX 147 ' CHANHASSEN, MINNESOTA 55317
(612) 937-1900. FAX (612) 937-5739
EH[NH[ESE[I
[u*
UET{ORANDTJM
Jo Ann Oleen, Senior Plenner
Steve A. Kirchtan, Building Ollicial
r)
2)
3)
April 23, 1000
8G-3 Site Plan Bevier & 90-6 SUB (pXT Corporation)
Three handicap apaces required for the 10g parlting spacesshorn.
Curb cut for handicap speces should be ajacent to, but notencroaching on, the handicap spa.ces.Entire building rust be lire sprinklered.
CITY OF
?o:
FROT:
DATE:
SUBJ:
EH[[IH[SSE!I
ITIEMORANDl',M
To: JoAnn Olsen, Senior planner
FROM: llark Littlin, Fire llarshal
DATE: April 19, 1990
SUBJ: #86-3 Site plan Review and *90-6 SUB (pMT Addition)
1. Provide two on site fire hydrants:
In rear drive through area north ol proposed
60 leet south of the south/east corner of theproposed bui lding
a
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690 COULTER DRIVE. P.O. BOX 147. CHANHASSEN, MINNESOTA 55317
(612) 937-1900 . FAX (612) 937-5739
building
Have deve I oper
approva I .
subni t a new proposed utility plan for
2 Provide Fi re
add i t ion f or
Depertrent rith proposed waterroain into newapproval.
CITY OF
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EHINHISSEN
690 COULTER DRIVE. P.O. BOX 147 ' CHANHASSEN, MINNESOTA 553T7
(612) 937-1900
{;z)
LOctober 7, 19 85
Irtr. AI Iverson
PIrl? Corporation
Box 454
tsopkins, I{N 55343
v tru v
Bar ba ra cyCity Planner
BD: v
CITY OF
Dea! Ir{r. Iverson s
?his is to confilm the final resolution of the lot coverage issueregarding the construction of your facility in the ChanhassenLakes Business Park. The City is in receipt of the plans dated
September 19, 1986 showing a shifting of the site plan to thewest as previously discussed. It appears that the plans sub-mitted Deet the intent of the Council approval including the ?O$lot coverage requirement.
I am sorry to have missed the grounil breaking, however, I wish tothank you for your cooperation in this matter.
CITY OF Y,D _
690 COULTER DRIVE. P.O. BOX 147 ' CHANHASSEN, MINNESOTA 55317
(612) 937-1900
August 19, 1986
Ur. Alfred Iver8on, PreEident
PllT, Corporation
P.O. Box 45tl
Eopkins, l,lN 55343
and
Itr. David L. Kordonowy
Steiner Developnent, Inc.
18338 Minnetonka BIvd.
wayzata, I{N 55394
Gentlemen :
This letter is to notify18, 1986, neeting, approv
25,000 square foot officeplan stamped 'Received, Jfollowing conditions:
u that the City Council, at the Augustthe site plan review request for a
arehouse builcling based on the sitey 10, 1986r and subject to the
yo
etl
uI
1. The relocation of the fire hydlrant located on Park Roadcloser to the center of the proposecl buildling or the additionof another hydrant to be possibly located on Audubon Road.
2. The perineter of all parking areas shall be lined sithconcrete curb except those areas that are to be expanded.
3. Conpliance with all of the Watershed District.s regulationson nes construction.
Tbe City ltlanager shall pork with the applicant to determinethe least cos! alternative to achieve a 70$ lot coveragefor Lot 2, Block I, ChanhasEen Lakeg Business park 5thAadit.ion.
5. Deletion of the open drains along the north curb line andreplacement with catch basins ehose outlets will be connectedto the existing storn sewer on the north property line.
5. Ihe applicant shall subnit a revised landscaping planshowing additional berning ancl landscaping along the eastand west 1ot 1ine.
I
{.
August 19, 1986
Page 2
The City Uanager silL be contacting you to arrange an appointmentto review the alternatives cited in condlition No: 4. p-uither, weshould meet or discuss by phone, what is necessary to include inthe revisetl landscaping plan.
Ve tr
Baibara DacyCity Planner
gf$ yours,
(a^^-.-
BD: k
CITY OF
THINHISSEN
STAFF REPORT
9.C. DATE: iluly. 23, 1985 . -
C.C. DA?B: August 18, 1986
CASE IIO:5-3 Site bla n
Prepared by: Gerhardt,/v
Fz
()
=(LL
Site Plan Review for a 25,000 sguare foot
Of f icelwarehouse Building.
Lot 2, Bl.ock l, Cbanhassen BuEineEs Park sth Addition
PROPOSAL:
I,OCATION:
APPLICATT:
PRESENI ZONING:
ACRE}GE:
DENSITY:
ADJACBNT ZONING
AND I,AND USE:
HATER AIfD SEIIER:
PEYSICAI, CEARAC.:
1990 LAISD OSE PLAIf:
P-{, Planned Industrial Developnent
I.66 acres or 72t309.6 square feet
P-ai vacant indugtrial
P-l; Public florka Bullding,/Fluororare, Inc.
P-ai Yrcatrt induatrlal
P-ai vacant iaduetrlal
llunicipal gervices avallable
Property has level topography
InduBtr ial
E
UJt
@
Alfred A. Iversen, President
PI{T, Corporation
Box 164
Eopkins, UN 55313
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Pl,tT Site PIanJuly 23, 1985
Page 2
APPLICABLE REGULATIONS
Ihe applicant ia propoaing
northeast perineter of the
Section 17.05 of the zon
Ordinance requires that
construction for a princ
building Dust be reviese
Plannlng Conmission and
Council.
cons truc-
ing
all
iple
at byCity the
Landlscaping
fo
1,
p1
r PI{T,of theatted on
Access to the site will be provided by tro dirverays propoaed on
Park Road. There is adequate aeparation fron the interaection to
the proposed driveray cuts.
The site plan is proposing tlrl parking spaces to the reguired 33.This is based on the Zoning Ordinance requirement of one parking
space for every three hundred square feet of office apace and one
space for each enployee on the najor shift. The number of
enployees for the Dajor shift totalB 25.
Site coverage for the propoaedt buildling is 3rtt and the site
coverage of the inpervious gurface is 79.42t. The Zoning
Ordinance does Dot atate a certain percentage for inpervioua sur-faces, but it has been the intent of the City to reguire ao Dorethan 70t of total lot coverage.
PItlT, Corporationra reaponse to the 9.{2t lncrease in lot coverageis due to the neeal for additional parking and sarehouse apace forthe business to operate effectively.
PHT has agreed, lf they do expand their operation on the proposedlsite, they soulil make up the difference lD lot coverlge riththeir expanEion (see Attachnent 16).
a tuo foot b
propoaed par
erD and Bod along theking area. Along the top
RBFERRAI. AGENCIES
City Bngineer
Public Safety Director
A}IAI,YSIS
See attached.
See attacheal.
The applicant is requesting siCe plan approval for thetion of a 25,000 square foot off icelrarehouse buildingCorporalion. The proposetl location is on Lot 2, Block
Chanhassen Lakes Business Park 5th Adldlition, shich ras
Octobe! 1{, 1985.
Site Desiqn
PMT Site PlanJuIy 23, 1986
Page 3
of the bern, the applicant is proposing a mixtur
Ash and Norrray Maple. This shoufd provide ailequ
parking activities. The front of the lot rill b
two sets of three foot berm antl sod. Betreen th
berns, the applicant is proposing a cluster of R
and Black HiIIs Spruce.
eo
ateeaet
edt
f Marshall r s
screening all
creenetl withro sets of
wig Dogwoodl
fhe sest 1ot line rill renain in its present state because of the
companyr s future expansion plan. The mature stand of trees at
the rear of the fot will also renain anil provide adequate
screening of activities taking place in the loading and unloadingareas. The applicant is also proposing the seetling of areas
disturbecl by construction.
RECOMI'{ENDATION
Planning staff reconmends the Planning Comrnission ailopt the
following motion:
'The Planning Commission reconmends approval of Site Plan f86-3tor a 25,000 square foot off icelwarebouse facility basedl on thesite pJ.an stampeal 'Received July 10, 1985" and subject to the
following conditions:
I. The relocation of t
closer Eo the centeof another hydrant
ire hytlrant located on Park Roadl
the proposedl building or the acldition
e possibly locatedl on Audubon Road.
hefroftob
4
the l{atershed Districtrs regulations
The site coverage of Lots I and 2, Block 1, Chanhassen
Business Park 5th Adilition should not exceed 70t of total
1ot coverage.
Deletion of the open drains along the north curb line andl
replacement with catch basins shose outlets rilI be connectealto the existing storm sewer on the north property line.
PLANNING CO!$IISSION ACTION
2. The perimeter of all parking areas shall be lined uith
concrete curb except those areas that are to be expaniled.
3. conpliance with aII of
on new construction.
5
On a motio
reconnendestaff I s fito conditialotbyl
Noziska and Eecondecl by Siegel, the Commissionproval of the office rarettouse facility with
ecommendations. Conradl and Bnnings wele opposedl4. and felt that the 703 aite coverage should be on
asis.
nbydapveronlotb
,
,
PUT SiJuIy 2
Page {
te PIan3, r986
STAFT'UPDATE
The Commission was concerned about the legal mechanism Eo be usedto require that both lots not exceed 70t in lot coverage. After
conferring with the City Attorney, staff reconEends that theapplicant record a deed restriction applicable to Lots 1 and 2.
Such is recommendeil as a condition of approval .
Since Planning Cornmission consideration, staff deternined that
there was a neeil for addlition1ine, especially in the rear
The Bestern elevation of the
Audubon Road. Therefore, itplantings, or combination the
loading area along the west 1
'existing vegetation to remai
andscaping along the rest lot
e the loading docks are located.tling will easily be seen from
econnended that berming and
, be installed to screen theine. The site plan notes
n the west line. Because none
aI 1
wherbuilis r
reofot1n" oexists, it is further recommended that landscape treatment be
considered along the remainder of the lot line.
Also, the applicant and the City Engineer have resolved concerns
raised at the Planning Comnission meeting regarding the engi-
neering recommendations.
The following is reconmended to be considered as conditions of
approval :
1. Amend Condition No. 4 to read:
4. The appJ-icant shall record a deed restriction reguiringthat total lot coverage fo! Lots 1 and 2, Block 1,
Chanhassen Lakes Business Park 5th Adlilition not exceed
70r.
2. Add Condition No. 6:
5. The applicant shall submit a revised landscaping plan
showing additional berning and landscaping along the
west lot line.
AITACHMENTS
Uemo from City Engineer dateil July 18, 1986.
l,lemo from Pub1ic Safety Director datedl July 15, 1985.Letter from !lr. Iversen, PI{T, dlatedl iluly 7r 1985.
Proposed expansion plan stamped 'Received JuIy 17, 1986'.
Planning Commission minutes dated July 23, 1986.Letter from A1 Iverson dated July 18' 1986.Site plan stanped 'Received JuIy 10, 1986'.
Landscaping plan stamped 'Received JuIy I01 1985'.
1
2
3
4
5
6
7I
t
Iilanaqerrs Comments ! Typically, I review reports prior to sub-nission to our respective commissions. Unfortunately, I was outof town dluring this reportis preparation.
I share the concerns of the Planning Conmission and staffregarding the 79t builcling coverage ratio and ninor eideyardlandscaping. In administering the Eousing and RedevelopnentAuthorityis incentive progr.rm, re have strictly helcl the 70tguideline and considered the effects of developnenta on adjoiningneighborhooals. This lot is highly visible fron Audubon and park
Road (the lot is flat uith no vegetation except for a acatteringof dying elms in the rear).
PI!iT Site PlanJuIy 23, 1985
Page 5
the entir
on both t
t reatmentfeet. I
approach .
The solution arrived at, restricting Lots 1 and 2 to 70t coverage,will sork. I am not sure as to ttte cost of recording this typeof restriction nor ehether the future owner of Lot 1 woulil bebefore the Council claining he dlitt not. realize the full inpact ofthe condition. The alternative still leaves the nass of thebuildling to the east and such may hinder the development of thelot to the east of PfrT.
Another solution is to create an admin istratively approved lotspIit. This is a simple procedure sith very ninor costs. The
new 1ot descriptions would be "tot 2 and the westerly 20 feet ofLot I'and'Lot 1, except the easterly 20 feet.. The two newlots coulil stay under a single ownership or sold to two different
ownels without any type of approvals. Tbe new resterly lot would
have a frontage of 300 feet versus its current 320 feet (such notappearing to harm its resale value). PUT would also reduce itsholding costs for Lot l as special assessment coEta are on anacreage basis and they currenty exceed the credit they couldreceive. Al.though the anount would be ninor (glr500 to 92,000)rsuch will probably offset some of the costs of City conditions.
fhe approach advocated above does have the benefit of alloring
Ilhichever alternative iE chogen by the Council, auch sbouldl
e plan to shift to the ee8t by 10 feet (20 foot sideyard
he east and uest sides) and allou for greater side yards, i.e. the easterly bern could be raised to 3 to 4
have spoken to Opua and they rould relcome the above
ously listed conditione as rell aa increaae thee eaaterly lot line, i.e. a stagger 60 foot
dle by PltT wouldl produce the one tree per {0 feetto other developneDta (aaauDea that any nere eaEt uould have a einilar 60 foot stag("w
includle the previ
landscaping on th
spacing on the eiguideline appliedl
developtnent to th
reguirement ) .
CITY OF
cH[NH[SSEr{
IIEITORAI{DI'I,T
TO:
FROU:
DATE:
suBr:
690 COULTER DRIVE. P.O. BOX 147 ' CHANHASSEN, MINNESOTA 55317
(612) 937-1900. FAX (612) 937-5739
Planning Cot'nnission
Paul trrauEs, Planning Director
April 26, 1990
Proposed ordinance Anendrents Establishing a Requirenentfor Filing of Variances, Conditional Ute Permits, Site
Plan Approvals, I{etland Alteration Peraits and ltlining
Per:Dits Against the Title to the Property for lvhich the
Pernit is cranted and an ordlnance lmendment Dealing uiththe Establishnent of a Zoning tot
PROPoSAL/St I{I,[ARY
At staffrs request, the City Attorney has provided ordinance
anendments resolving two Lssues that se have been periodicauy
confronted uith. The first pertains to the recording of approvalsgranted by the City against the title for the property for whichthe pelait is granted. llris has been prepared in response toconcerns raised by Etaff regarding inconsl.stencles sith therecording of city approvals against property title. In the past,city approvals have been recorded againat propertles on a hit andniss basis. One of the nain problene bas been the lack of
cooperation by the ffner and the difflcult of providing sufficientlegal docurtrentatlon to pernit recordlng. In addition, rhile ve
have atteupted to recoud tbe approvala tlrere ras nothing in the
ordinance that actually requires the practice. It ia also unclearas to uho bas responslblltty of recot{lng iEheee approvals.
Problens develop after property changee hands aeveral tines and thecity vlshes to enforc. . condition of approval.' It is our beliefthat the highest levels of ccpliano. ctn only be guaranteed lf allof ttrese approvals are recorded agalnat the property ln guestion eothat all future ounera are fully rsare of the requireuents of theapproval.. ConBequently, the Cit!, Attorney has drafted an ordlnance
aDendrent tlrat doeE reguire ttre recordLng of all perxit8. Staffvould like to propose 3 llnor alenduents to tlre City Attorney I slanguage. Time constraints did not allor ue to have the ordinanceredrafted prior to the PlannLng Cornniesion ueeting. The first isthat the ordinance be drafted in such a uay that it ie clear thatthe applicant for the approval has the responsibl.lity for recording
the permit and for providlng proof of recording to the City.
Second, no per.mits related to the actlvity nor the activity itselfshall Le initiatea until the approval indt conctitions hive beenrecorded. The last revision should be desigmed to include interln
u6e per its.
Itre second ordinance anendnent concerns problens that staffconfronts yhen a building elte is coaprJ.sed of tso or Doreunderlylng parcels. Thls norually onLy ocsurs in resl.dentlalsituationa and lost comonly applles in areas such as Carver Beach.carver Beach with the 20 foot side eubdivislon that underlLes thearea requireE that honesites be conprised of aeveral recordedparcels uhich are lerged for tax purposes. Houever, on the countyplat Dap property lines still ahou up as individual parcels. fhiapresents staff rith a Eoneulrat difficutt procedural probleu eLncethe ordinance requires that aetbacks be applied at aII propertyIines and this ls inappropriate in this instance. fo re-pond tothis concern, the City Attorney has developed the idea of a zoninglot rhich wouLd be approved by the City Planner if it conplles rithIot requirenents of the district for shich it is located and has asingLe tax identification nurber. Lts that are Joined into aaingle tax parcel. cannot be split nlthout City Councll approval.
For al.L intensive purposes, a zoning lot ylth function as any otherlot.
STAFF RECOI{I,IENDATTON
Staff recornnends the Planning Counission approves the zoningordinance amendment aroending Section 20-30, Recording pemits,
conditioned upon revising the ordinance as follows:
1. The ordinance be drafted in such a way that it is clear thatthe applicant for the approval has the responsibility forrecording tbe pernit and for providing proof of recording tothe city.
2.lfo petoits related to the activity nor tbe activity ltse1fBhall be lnitiated untll the approval and conditions have beenrecorded.
3.the ordinance aleopernits.be designed to apply to interiu use
Staff reconnends that the Plannlng Conniseion approve Section 20-903, Zoning Lts, as yritten on the attached anenanent.
ATTACHI{ENIS
1. Ordinance aDendnent.
Variances, conditional use perrnits, site plan approvals,rretland alteration per:nits, and rnining pemits Ehall- Le recordedagainst the title to the property for-shich the pernit isgranted. Such perDits Ehall be invalid unless thEy are recordedwithin 120 days after they are approved by the city. rhe cityCouncil Day approve an extension of tirne iitfrin which to recordthe pernits.
CITY OF CEANHASSEN
GARVER AND ItENlIEprl{ CorrNTIEs, rlxt{EsoTA
lx onDlxltrcB I!iEIiTDII{C CEIP,IEB 20 or ttr! cElIrElaSEUeITY OODE, TEE CII[I,8 tOIItlC OnDTINICE
The City Council of the Clty of Chanhasaen ordains:
EcctloD 1.Chapter 20 of the Cbanhaaaen City code is
anended by adding Section 20-30 to read as follows:
8ec. 20-30. RccordiaE petrllts.
gactioD 2.Chapter 20 of the Chanhasaen City Code is
anended by adding Section 20-903 to read as follows:
8oc. 20-903. lonl Lots.
SectloD 3.Thie ordLnance shall be affectlve Lmediately
upon ite passage and publicatlon.
PASSED AND ADOPTED by the Chanhassen City Councll this
1l The designatlon.of a-zoning lot ehall be approved by theCity PLanner if it conplles with the lot requirenenti of thedistrict ln which it is located and has a aingle tax identifi-cation nuDber.
- B) Interior lot ll.nes within a zoning lot ehall bedisregalded in applylng eetbacks and other-zoning ordinancestandards .
-.c) - lfter desigmation of a zonLng 1ot the lot lay not besubdivided without conplylng vith the-Cltyra eubdlvisionregulations.
day of , 1990.
oRDr[ANCE lto. _
ATTEST:
Don Ashworth, Clerk/l,tanager Donald J. Chriel, l{ayor
(Publisbed in the Chanhassen Vl.llager on , 1990. )
CITY OF
EH[NH[SSE[I
I{EI{ORANDT'II
TO:
FROU:
DATE:
SUR':
0p
Planning Conmission
PauI Krauss, Planning Dlrector
April 26, 1990
Business Fringe DistrictStatus - Background Paper, Revised
BACI(GROI'ND
on numerous occasions, staff has been requested to re-examine thestatus of the BF District. Both the Planning Conmission and CityCouncil have expressed concern over the type and quality of useithat have been attracted to the district. This concern has beenheightened by recent Lssues surrounding the proposed expansion ofSorensonrs cold storage sarehouse, Xoon VaIIey, the recentlycondenned and removed burned out drive-in restaurant and the planto erect a cellular telephone tower in the district that has sincebeen dropped in lieu of a locatlon in Shakopee.
Staff has been asked to investigate the posslbility of rezoning thearea back to an agricultural designation or sone other alternitivedesigned to relieve bllghting influencee.
Historv
The BF District ua6 created in Deceuber, 1996. Its stated purposeis to ttacconmodate linited soaoercial uses pithout urban servicLsr.There are no pernitted uses in the district save for parking lots(presunably park and ride) and slgns. Conditional uaes are lirnitedto autonotive service stations, truck/trailer rental, utilityservices, outdoor display of Derchandl.ee for sale and cold storagewarehousing.
The conmercial strip along Hsy. L69/ZL2 predates modern Chanhassen.At one point in tine, connercial uses along the highway appear tohave had a major J.mportance to the city, nearly on pir witn tUepresent CBD. Today, uses Ln the BF District lnctude the following:
- Sorenson cold storage rarehouse- Riverside Auto used car sates lot
690 COULTER DRTVE . p.O. BOX 147 0 6g111g15SEN, MTNNESOTA 5531 7
(612) 937-1900. FAX (612) 937-5739
BF District BackgroundApril 11, 1990
Page 2
- Several single fanily hones
- Vacant land- Progresa Valley nini-storage
- Brookside l,lotel
- superlDerica
- Vacant site of a drive-in restaurant ( fornerly Tri-Y)
It is perhaps of egual inportance to note shat is not in the BFDistrict but is in the general vicinity including:
- Stateuide Auto Salvage J unk yard
- Uoon Valley Gravel quarry
- Assunption Seninary- Forner Sunny Acres garden center- Radio transmission tower- UnDOT Park and Ride 1ot- tgeatern Uotel- cedney Pickle Plant (zoned IOP)
fssues
To clarify the purpose of this exercise, it is useful to outlinethe issues that confront the City with the BF District. This listis staffrs and the Planning Conmission should feeL free to alterand add to it.
1. Quality of Developnent - tltost if not all parcels in thedistrict are perceived to have a very 1os quality ofdevelopnent. The sites are generally poorty developed. Theyhave setback problens, poor quality architecture, lack oilandscaping and even lack such basic features as paved parkinglots. In short, the quality is considerably below that vhicht!r" city requires for current comnerCial developDents
el sershere in the connunity.
2.
3.
llpes of Uses - The t)rpes of uses occurring in the districtare perceived to be less than optinal. This is sornerhatintertrined rith the quality issug and possibly with the factthat several of the least desirabLe uses are located outsideof the BF District.
Environmental Protection - The uooded bluffline and llinneaotaRiver Valley are significant environmental features uorthy ofEpecial protective Deasures. concerns are raised vhen ioonVa1ley proposes to remove a large area of the bluff, when Ur.Sorenson clear cuts and grades in a manner that undernines thebluff and creates serious probleDs due to subsurface geology
and hydrology and uhen there is an auto junk yard encroachinginto the river floodplain.
BF District BackgroundApril 11, 1990
Page 3
4
ALTERNATIVES
we believe you have at least 3 alternatives to consider for dealingwith these issues. A fourth option, existing use zoning isexplored at the end of this report. If the Planning Coumission cansuggest Dore approaches re would be happy to research theE. Thealternatives include:
Alternative 1 - Rezoning the BF Dietrict into anothercategory, nost 1ikely the A2 District. Thus the BF District rrouldbe elininated. fn an attached neno, the City Attorney hasindicated that such a rezoning could be upheld. Houever, thecritical finding is that the new designation nust provide anopportunity for the reasonabl.e use of property or trtakingr couldresult. Arg,uably, not all the BF District parcels are convertiblefor agricultural uses due to the topography, location of uetlandand tree cover. other perritted uses in the A2 District lnclude:
- Public and private parks
- Single fanily dwellings- Day care for 12 or feuer chlldren- Utility eervicee- Group homes for less then 6 persons- Tenporary real estate offices- Arboretums
Conditional and Interin Uses include:
- Bed and breakfast establishnents- Tenporary mobile hones
- Itlineral extraction
- cenetery- CoDmercial kennels- Ylholesale nurseries- colf driving ranges- Churches
Traffic - Hvy. L69/2L2 ls an oId, general).y poor quality roadthat carries high volunes of traffic. llost of the traffic isthrough Dovements but turning DoveDents froD sites in
Ctranhassen could present traffic aafety problems. The trafficsituation will be altered significantly by the construction ofHwy. 212 uhich ahould reDove Dany of the long distance,through trips.
Staff is unsure how a court nay declde on individual parcets.nay have no valid non-connercial use.
Uany
1
BF District BackgroundApril 11, 1990
Page 4
Advantaqes of A2 Conversion
Would make existing conmercial uses in the BF District non-conforning, which at some point in the future, uitt lead totheir removal.
2 Is probably historically accurate since soue portion of thedistrict uas fornerly occupied by hones and fams.
3.Could resolve sone environuental and traffic issues indirecttyby prohibiting developnent.
Disadvantaqes
1
2.
3.
Possible takings issue
orrners who have nadecurrent ordinance.
and equity concerns uith propertyfinancial decisions based upon the
It would only effect those uses currently located in the BFDistrict. Reliance on non-conformities to bring about
cornpliance is a long range process at best. You could expectstatus quo to exist into the foreseeable future with no realprospect of any site inprovements.
wouLd expandactivity.area eli.gible for exlransion of gravel nining
Alternative 2 - I€ave the Bf District intact with possibleinprovements. The City could consider different developmentstandards. The City may even sant to consider expanding thedistrict to cover the entire corridor and add new uses to encourageredevelopment. The City should supplenent this uith a blufflineprotection ordinance of sone type. A copy of Eden prairiers slopeordinance is attached but there are other models to choose from.Conceivably, re could also explore dealing with the junk yard withan approach sirnilar to that which is being utilized for lloonVa1ley, i.e. naking it a conditional use uith standards and givingthen a deadline to request and obtain a per:rnit subject to newconditions. The ability to undertake these efforts relative to thej unkyard would need to be explored uith the City Attorney sincethere is a record of City interaction on this site.
Upon further investigation, staff believes that this alternativehas ciome nerit. It takes more of a pro-active role in inducingchange in the district. The City could corobine tighter ordinanceswith new ones that have been developed such as the new site planreview procedure which uould be useful in inplenenting
Lmprovements.
Bf District BackgroundApril 11, 1990
Page 5
There is a factor that varrants some discussion concerning the BFDistrict. flLttt 2O/2O hindsight, it is possible to say that some ofthe Cityrs land use decLsions in this district have added to theblight problem. Ife note that the neu developDents, such as thenini-storage and Sorenson t s cold storage varehouse, could have been
used to luprove developnent in the area but instead they wereessentially held to a loyer Etandard of development then has beenapplied elsewhere. Illth the Sorenson Eite there were alsoadninistrative problens ln insuring conpliance sith approvedconditions. We believe these have since been rectified by newprocedures and ordinances. If the City uere to adopt a slrongpolicy of encouraging inprovements, in the Conprehensl-ve PIan andin new ordinances as necessary, nev developnent could be used as atool to improve the areats iuage.
Advantaqes of Retaininq the BF District and creatino New ordinances
1. Taking issue is avoided.
Pro-active, new developnent could be used to generate
inprovenents.
2
3 New ordinances couldexisting uses.
be used to require inproveuents vith
1
2
DevelopDent remains linited by lack of sewer availability.
Risk that past policies that encouraged substandarddevelopnent could be continued.
Alternative 3 - The last alternative is to do nothing. The BFordinance uould renaln in place. A separate bluff plotection
ordinance could be considered.
Advantaqes of the Do [othing Alternative
1. Avoid taking issue.
Disadvantaoes
2.Keeps existing non-confornities in this status so thatultinately they will be reuoved.
Disadvantaoes
1. Does not deal comprehensively vith all issues.
Does not resolve problens ofdistrict.2.uses located outside the
ST'I,TMARY
Three alternatives for dealing vith the BF District have beenpresented for your review. Staff is seeking your direction on thenost appropriate course of action.
BF District BackgroundApril lL, 1990
Page 6
3. ltinimizes the effectiveness of using ordinance standards toresult in inproved developroent quality.
Alternative 4 - Several nonths ago, Conmissioner Emnings gavestaff a copy of an article (Law and New Land Ethic by John Humback,attached) from the llinnesota Law Review that explores the tegal andphilosophical potential of establishing iexisting use zoningrr. Theconcept essentially freezes an area in whatever state it iscurrently in with the public purpose generally being found in thepreservation of open anLd/ or environmentally sensitive areas for thegeneral public rrelfare. We believe it is usefut to explore this
concept relative to the BF District.
we found the article to be extrenel,y interesting, particularly forthe legal insights into the takings issue. We believe the findingsare related to not only existing use zoning but also to the BF downzoning that is being considered and to its findings that concludethat government has a responsibiLity to aIIo!, a reasonable use fora parcel but absolutely no responsibility to support uses and landprices based upon specu}ative values. The author concluded thatexisting use may be a rrconstitutionally sufficient uset'.
Hoirever, rrhile ue found the existing use premise to be interestingand holding prornise for addressing some issues, we question itsdirect application in the BF District issue. The author statesthat it is nost useful in areas shere intensive development has notyet occurred and r,rhere the status quo is worthy of preservation inthe public interest. We do not believe these findings would applyin the 169/2L2 corri.dor. Ilowever, the concept Day be applicable topreservation of the Minnesota River bluffline. Existing bluffLineprotection ordinances that we are aware of generally restrictdevelopnent by establishing criteria to ninimize environnental
damage but they do it with the prenise that sone developnent willoccur. rxisting use zoning may offer a higher degree ofpreservation. We believe, however, that there should be sonequestioning of the concept. While the author nakes what appears tobe a strong case for the concept, it is as yet unproven. No suchordinances were quoted in the article nor rere any court cases thatindicated directly how such an ordinance would be viewed. ShouLdthe Planning Commission wish to explore this further, we wouldreconrend consulting the city Attorney and potentially the CityCouncil in a vork session.
CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A.
Attmrrys at Law
Thomas .]. Campbell
Roger N. Knutson
Thomas lvl. Scotr
Gary G- Fuchs
James R. Valsttrr
Eliort B. Krrtsch
Dennis J. Unger
(612) 456-9519
Facsimile (612) 456-9542
Mr. PauI Krauss
Chanhassen City HaII
690 Coulter Drive, Box 147
Chanhassen, Minnesota 55317
RE: Rezoninq to A gricultural Desi 9na tion
Dear Paul:
You asked me if rezoning property from commercial to1e taking. A land useves a Property owner of. Penn. Cert. Transp.Co. v. City of New York , 438 U.S. 104 (1978); NoIIan v.California Coastal Commission , 107 s. ct. 31ar-ll-9E7t. ihe Dakota
agricultural could constitute a compensablegulation effects a taking when it depri
"economically viable use. of the property
County District Court overturned Inver Grove Heights' decisionnot to rezone a 21 acre parcel from agricultural to industrial.The court found the property was not suitable for agriculturalpurposes, but was suitable for industrial use. Rich ValleyPartnership v. City of fnver Grove Heiqhts , (1980).
Agricultural zoning wiIl r
reasonabl,e use of the property
anything, for the property with
BY
RNK: srn
t in a takinq if it is
no one rrould pay much,t zoning designation.
Very truly yours,
ELL,
CH
TSON, SCOTT
A.
esul
and
tha
not aif
Roge u o
Yankee square office III ' Suirc 202 . 3460 v/astrington Drir,r . Eagan, MN 55122
February 5, 1990
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FEB 07 1993
ctE[oEqrAt{HrssFrl
50 cubic:rrrds
ProcurcDanE of
Ci ty.
€&n Grq..te
5 11.50-
SEC. 11.60. St plD CnOUr{D OEyftDprlErr" AtlD ErcUrA?IONs.
Subd. l. Findings .ad purpo3.. ?hc City finds :h.._dcveJ,opnent, ercrvrtion,- cr constiucti,o[ on cGrtain sloaesurthin rhe city rey rcsrrl:- in 3::a burlding or Jiit-.Ji ";--"::turcs, _ incrcase dlngcrs of crosion and ticra:v llrdance. :t.n!rur!1. ci!r!cras oi r!rc land, rnti jcogariiic i;i ';l'.:iil-
sa!.ty, tnd yclfarc of rhr citizrns ot-tn; Ciry.
Subd. 2.. D.tjnitions. ?hc fol,loying trrls, .s usedin this S.crion, rh.ll i.vc thc rcenrngJitatcd,
1. .Staep Slopcr. - Slopcr of over llt and of.lavltion diffcrencc of iO. o; rcrc ln i givcn p.rcrl.
2. _ 'Davtt,oplGnt. - Any crcavation in arcess ofof. lg+ os .ctiviry yhicn firrt ,cqu.r.i'r:.,.! builaling or llnd .ltcr.tion pcrai: fson r::e_
Subd. 3. R.vier by pllnning Colairsion lnd Counci]oi DevclopDcnt on stGGp Slopds.
A. Dcveloplant on Strcp Slopas. No davGIoD_acnr shalt b! conducrcd on r rrccp rropi rittiout ririt-iii.ii__ing . pcr&it rh.rcfor froa thc Cguacit.- ilprovet o, iciiciior-9!_!!! proposcd dcvctopacnt th.ll bc ootetiio-ii-d; ;;ii;;i;;Lnncr:
l. tppllcation. prior to .ny d?vcloooenton ._rrccp llopc, .n rppliirtioa Cor . pGrrit rtiir-o.-iii.-'iithc city ehtch .h.:,1 66nrein I acteifcE-ltin i6i-ir,c-d;;;id:_lcnr yhich aaBt tos th:
proporcd dcvcroprrnt r. .jtl.lTir:hc Pcriod during uhich thc
on the .rrc of ttrc rtcvrroflln.lot toil tyP't rhlch rrc found -
thc .r.t to br d.e.loprd.
(c' A "P thoring ch' toPogrrphy of
thc - topoer.phy rh.t j?rtl ?tjr"t*'.l!.:"'.;:*;::'r'J. jl -
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J'J-.,. ioJ.' i.n:i ?ot f "r.?l..i1i,.i' iglrC roil, turc.ptlbiltty or uro'rorf iJiioiron. criiiiii othc toil, dtrrrncc ot ti: roll froi-uadeilyiag LoOrocr.-.lurcrpribil-tcy -of rh. rotl. to ch.ng.. fn ptriliiiii;fi; fi;Di.tcn.d . lllos during pcrtodr of troit.- '
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to v.eerrrion .nd orh.! n.t3,l,.i i:;$l3i':L.*,iII :.':,tilTl5;
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the C.vclopn.nt ?lus thc ntnncr in yhich th. applic.l:it ?ro-poses to proEcct vcgatation lnd othcr natural tcltures :rarvi lt not bc di3turbcd.(hl A copy of .i,l spccific!tions,5l,ucpr:nts and ot:rcr dct.iled plrns for thc dcvclogn.nr.(il InforaaBion r.lrtive !o rle !de-guacy for the slcgc condiiigns rnd soil typc of !,h! founca::on
anci :rndcr!1;in9 aatcrial of any structurG, including so.ds.(j) fnforEar,ion scletivc to :::e aCr-qu!c! o! controls lnd protection cristing uphill !:o$ t::.proposed dcuclopnent uhich rsc dcsigncd to guarri atrucE,uras orso.is froo bc j,ng aftect:d by rud, uprootcd trces or orher
Er t?r i.1s.(kl Infortlrtion rct!tive to theedcguacy of constsuctioa of rny rct.ining ralls in cxccss of30 !!e s.(1) Such othrr infor!!tion rs ihePl.anning CoDnis!ion 5h!11 rGqucsr froD thG .ppliclnt Grtherprior or subscquant to thc initi!l raviau of th. psoposad
devel.oparcnt by thc Planning Co[Dission.
2. ?hc pl.nniag CoEDission .nd th. ?rsks,Rac!c.tion and Natural nGsourcas Co!!ission :hall rcvicn tndakr ! rcconnandrrion to thc Council rs to uhathrr thc prlnrtshould bc issucd or denicd.3. ?hc Council E.y than .uthorizc or dcnyissulnce ol thc parai t.
a. ?hc rGvi.r. by th. planning Conrnissionrnd th. final dccirion by thc Council rhlll bG bircd on con-rid.rrtion ol thr follouing frctors:
pl.r., rccusrte .nd in .li) t.lE:l"'.:l?.;3'"",",tTt1..T i"3ithi3 Subprr.grtph A.(b) fh.ther, .nd thc dcarce torhich, th. proporcd d.vcloptent yit.l crutc .ad/ot bc iffcc:caby crorion problcar.
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pr-r r . o ! rhG a.,. rop..,l E
), fi l' ;*j !,I&.'j.T'rt 1'^i'. ;';" :i:undcslying t tar irl.
ehich, .'r. d-.v_clopDGnr ,[il .iilit]&'.i.it10", tl;J::Jr:r:
:?othcr n.currl treturcr ol th. land.
yh.thcr rhc psopor.d a.r.(rtJr.*tv ,"rilt:..I|." T"? .t*t :1"3.;:to .ny Pcrtoot. Propcrty or .ni..13.
5. tt thG Councll d:cldcr to .urhorizGllruencc-of r P.rrit, lt-try do to aub1Gct to co.plirncc ,iitrrr.!on.bl. coaditiont lhich rhrll uc tpccilfctlty ict torrh inthr pcr.it.. Such conditionr l.y, etong othcr r].ttcrr, liaitthe tirr, liad os ch.r.clGr of ihe prog6rcd rort, rcgu'irc ttr-constructioa of othor rtructurct, rlguirc rcpltciacnt oi
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5 Ii.50-7.9ct!tion or otha! n.-tural felturec, Gttabli3h raquiredaoni:osing prrrcdurcs and aaintrnenti l"ii"r.y, ir.9. iic .dor(over rirne, rCguirG rhc .ttlration oi-tic-Ii:..i.-iti-ri' ;r;;;._5uf!erin9, or rcguirc a pcr f orreica-;il. --
5. _ An -tppllcln: rhall bcg!,n t:,:e rJor(.uBhorrzed virhin 60 dlvs. er6i tnc aatc-lt aotiroii;;i";-;;-:l:_i:!r-.1"r o! rhG pei it unrr:i i-,:}f-.r.nt d.tG for tieco:inrncroent ol the rork ir OcrignttcO-Ly :hc Councii. il;applicant ah.ll coEDletG thr. yosk .ur!:oriicri stthin rhe rirne_:'inir - rgecif ild in itrc pcriit.- ah."ii'th. uorr nor 5G con-nenced rs rpccifi.d hcrcin, rh. F;;i;;r,iii s.c".i ,oia: ;;;_vidcd, hoyevGr. eh!t if 'prlor-ii-ii;e;. esr.bJ.ishGd !orconnrnc.n.nr of the sorr, thc tpplicrnt iiics ,riit-ci i-c-g":;;_to the couacil tor an cricnsion -5i-ai;: ;" conrGnce thr uorKs.rting forrh rh. rGlaons tor tic-illu-i-rca .rtrn"i;;, -;;.
Council lty grant such Gacention.
7- .-Notic. of CoEplation. An .ppliclnrshltl notify rhc coun,.ri I in vr-itinf-ufi;1. h.s finirhrd lrero!t(. No uork ahlll bG dcclcd to'hevc'-bccn coaplctrd untiL_:ip:^or_.d in-rriring by thc city eig1ni-ci i;li;;;;; ;;;-sr I tt.n notilicltion.
B. G.ncrll prov i3 ion3._ l.-. nGtpon.ibiltty. f,.ithc! thc irsutnccor r pcrair nor coiDl-iucg rtrh t-ri'ioai-itioni tiir."-i--iiirith th. provi.ions'of rtrir sliiiii riiii' ,.rr.rc .ny pcrronf roa rny rGrpon.ibility otilr"irc -i-i-p"j'.Tiy ler ;6s d.Erg. to -
i i i i!ii. :' .t :?'..'.'.'',i3I, :' il : r',!', . i.'.{i" *. " !.U i.. T I iofficera or crployccr io?-ii:urv oi-iii.i.'to pGrrons os p!op- _arty. An .pproerl or.rn epit t6et ioi- rliico purrurnr to !hisscctlon .h.lt not rrrf cvc.tdJ-e-9pi6* l.i lhG r.rpontibi:,irvor colplyine rirh rnv othGr qa's'rt;;il;s-irC.Lrlh,iC- by
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rcgul.rion or Clrti Coic provirt;:-- ---"-
Sourca: Ordlatncc lto. !2-lEItlcctlyc Drte: 9_l?_!2
- (S.crlonr 11.6I tbrough ll.aa,luturt erptnrion.;lnctstirc, rcrcrvcd lor
35I
(9-17-3 2l
Tlm A. Erhart
775 lest 96th Street
Chanhassen, lllnnesota 55317
(612) f71-u16
February 5, 1990
To: l{r. Paul Kraus, Dlrector of Plannlng
Chalman & llenbers of the Plennlng Connlssion
SubJect:Condltional Use Pennlt rnd Site PIan Review for cold
storage unit expansion located ln the current BF District
on Highway 212 & t69 in the llinnesota River Ualley.
It is with regret that I will be unable to attend llednesday's planning
Comission.meeting. lt is for this reason I aar rriting to yori on a matteiwhich is, in my opinion,-very urgent and must be consiiiered- and acted uponby the PI anning Commission.
Those of you who have been on the Conmisslon for some time have alreadvfaced a number of proceedings involving our BF District. I bel ieve thaimost, if not all, of us have concluded that the City has created aninvitation for a never ending series of problens for bot[ the Clty and thedevelopers who are encouraged by the orilinance to develop thelr-propertyin this location.
I have sorne empathy for llr..sorensen rho, like nany property and birsinessowners, has a dream for developing and profitinj oir tr ti investnent.
Development today, unlike 25 years-ago, ias beco-me a complicated indexpensive business. This has resul tLd from the number df oeoole ltaffects and by the sophistication which has evolved from planher!, andcitizens' .experiences rith developers and thelr efforts to avoid thenistakes rhich have been nade in the past. Like any buslness decislon,no investment should ever proceed rlthout a clear understandinq of th6expenses and a comitment requlred to see I proJect throulh to asuccessful compl eti on.
It. s_e-ems qulte clear that llr. Sorensen and his origlnal partner reretotally unprep^Ted_for the level of comitnent required t6 bring ittts
dream to a profitable conclusion, l{oreoyer, ln an attelrpt to recovei fromthe increased levels of investment, the developer has chbsen to lonore theCity's condltlons for this developarent and expind the use far bey6nd thoseori gi nal'ly approved,
I believe the Clty has contrlbuted sonnrhat to thls mss. Ie encouraoethis kind of development by creatlng a zonlng dlstrlct rhich islnconsistent rlth the soclal , geological and trensportation realiiles
IxPtRsr\xn t6 ozlosl9ol _r_
which exlst ln thls area. _ AddlilonalIy, deslgnafing thls dlstrlct as
commercial ls ln confllct rlth our orn cbnrprehenslve ilan for thls area,
After studylng tte naterlal recelved thls reek from Staff, lt becomesquite apparent that there really lsn,t any good resoluilon to the messrhich now exists. The renralnlng partner; ir. Sorensen lsn't rllllnq.and/or cannot aff-ord, to complett'the proJect rs rpproved. ilor he ii
somehow going to fix lt all by maklng lt'blgger. The?undainnta'l Droblemhere is that thls entire project doesn,t nl-ke rny buslness sense'unless'lt ls configured as sornethl ng nrore lntenslve thin slnply cold storaqe.llr. Sorensen has now secretly converted thls plan do-a contractoi;syard/office building - nelther of rhlch ls perntdted ln thls dlstrlct.
I believ.e that.a'lloring the proposed expanslon ls the rorst posslble thing
we can do at this tlme and suggest the follorlng:
l. llove the consideration of rezoning the BF Dlstrict to the top of
the P'lanning ComJs-slon's agenda. - It ls suggested that thls irea
nay not be suited for agrlculture or slnglCfamlly deve'loornent.Actually, both resldentlal and agricuitural e-xl st ln' thlsdistrict now rithout-problems. Certrlnly, lt ls not capable ofsupporting a higher lntenslty use such as comerclal.
2. That ye deny this application and tork rlth l{r. Sorensen to brinqthe.current proJect to a level of compl eil on conslstent rith th6conditions laid out in the condiilonai use pemit. Additionally,nor that the soll ls disturbed and the v-egetailon removed, iri
need to solve the-problems rhich-have been cieated e.g., erosion,
I nstabi I i ty, and the i ncornpail bl'l I ty rl th surroundl ns-r6sidenti aiareas, etc. Screenlng should conslst of r rixtuie of lloruayPine, Scotch Pine and spruce rlth rnlnlnal DlrnilnE slze of 5 ft.ln height. of burlapped trees. Ie should hot rll-or Just spruce
because they are a very slow grorlng tree. The heallno slstemand offices should be removed. - Furthernore, no -fuither
development of_thls property shou'ld be allored except foi theconstruction of prlvate homes.
I appreciate the Staff's and the Plannlng Comrlsslon's conslderation ofny thoughts in thls natter. I trust thal a sailsfrctorv recomnendaiionrill be rmde and am hopeful of considerrilon of the gF Oistiiiaon inearly Plannlng Cormi ss I on rgenda.
Best regards,
flm Erhart
TAE:J
I TPERST\Xutts e/05/90J -2-
775 lJest 96th Street
Chanhassen, l,li nnesota 55317
(612) 474-lll6
Enclosed is a copy of my letter to the Planning Comission dated 5/10/89. I
beljeve this still reflects my feelings on this. Since the time of this nemo
we've since made additional plans for intensifying use in our BF District. l{owI see that another proposal is at hand - that is the planned expansion of the
cold storage faci I i ty.
I believe the Planning Comnission has had opportunity to consider the merits of
rezoning the BF District and would rlelcome the opportunity to pass such a
recomnendation on to the Council.
If you wou1d, I ask that this subJect be added to our agenda as soon as possible.
January ?2, 1990
ilr. Paul Kraus
City Pl anner
City of Chanhassen
690 Coulter Dri ve
Chanhassen, l.lN 55317
Dear Paul ,
s cerely,
hart
TAE:j
cc: Ladd Conrad
T I
U {"1'"E)n
Tim A. Erhart
-. " ;rJ
JAil t d$gC
csorcHAN{AssElt
lity ol Edcn Prairie
:ity Ollices
'6O0 Executive Drive o Eden Prairie, MN 55344-3677 . Telephone (612) 937-2262
June 13, 19BB
- Earb Dacy
City P I anner
City of Chanhassen
690 Coulter Street
Chanhassen, I'lN 55317
RE: DEVEL0PI'IENT C0NTR0L ALONG U.S. HIGHIIAY #169
Dear Ms. Dacy:
ltith the exception of the Lion's Tap, all deveiopment along U'S. Highway #169 west
of the landfill is Low Density Residential. This is controlled by the Eden Prairie
Comprehensive Guide Plan and City Code ChaDter 11' Zoning Regulations.
JUI{ I ,! I]EB
The Comprehensive Guide PIan depicts all property north. of U- S. #169 for Low
Density Residential development (up to 2.5 units/acre), and -all property to the
south ior Public 0pen Space. It is the U.S. Fish and l,lildlife Service intention to
acquire all property south of U.S. #169 as shown on the Comprehensive Guide Plan.
They currentiy bwn ipproximately 200 acres and plan on acquiring an additional 1500
acres.
The majority of the property in southwest Eden Prairie is currently zoned Rural.
The purposes of the R-Rural District are to: (1) Prevent premature urban
development of certain lands which eventually will be appropriate for urban uses,until the installation of drainage works, streets, utilities and cormunity
facilities and the ability to objectively determine and project appropriate land use
patterns makes orderly development possible; (2) Permit the conduct of certain
agricuttural pursuits on land in the City; (3) Ensure adequate 1i9ht, air, and
privacy for each dwelling unit, and to provide adequate separation betlreen dwellings
and facilities for housing animals.
Permitted uses within Rural Districts are as follows:
A. Agriculture, accessory and related uses.B. Public facilities and servlces.C. !ingle fanrily detached dwellings and accessory structures without
platting on parcels of not less than l0 acres.D. 'single -family detached dwellings and accessory structures without
platting on parcels of five or more acres, but less than ten acres,
as of JulY 6' 1982.E. Conmercial stab l es.F. Golf courses. -i
Barb Dacy
June 13, 19BB
Page 2
Sincerely,
City of Eden Prairie
DRU:bs
G-,.oC,eQ, LLr-n
As you can see, the key to controlling development oJgng U.S..t169 is through the
use of the Comprehensive Guide Plan, ihich designates the property as Low Density
Residential, and the zoning regulations.
-.If you require any additional or more detailed information, please feel free to call
me.
Donald R. Uram, A.I.C.P.
Ass i stant P I anner
C
U.S. 1691212 (Flying Cloud Drive)
F-UNCTIONAL CIISSIEICATIO{: }linor Arterial (1987 Chanhassen Conprehensive
Plan ) .
AVER,ACE DArLY TnMTIc: 20,000 (1984) East of T'H' 101
19;600 - 35,100 (2005) Dependtng upon coosLructlon of
!,lew T.tl. 212.
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PROPOSED LAND USE: Southr.rn Chanhassen is not, served by sanitary se*er.
conseqgently, no neu ur'oan *-ale develqf nt has occurred lo recent years. A
seriei of igrandfathered" trusinesses lrlsts east o[ the lntersectim ot U.S.
tdgjZiZ ana ti.S. l69n.H. l6f . Of these uses, so6re are conformlng to th€
business frtnge (BP) zone uhile others .re ncr-corformirp.
Ttre land use ele ent. of the l9g7 Coafxehens i ve Plan acknorledges the exlsteoce
oi ttre cqteor.ing uses, lD.rever, land use policies discorrage_ their expanslm.
lbn-conforming uies t'i' crdinance are protribited frorn enlarginq or exteoding
their opera tions.
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Corridor Study
ITCATION AND LENGiIH: ttqn ch:nhassenis eastern bor&r (Eden Prairie) Lo the
vestern bor&r (Chrska). Approxirna tely 2.? miles.
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DESCRIPf,IoN: U.s. 169^.s. 212 is a condrined roadway traversigtg the ertreme
southern section of Chanhassen. The two laner undivided highray carries
iuUstrneial lrrffic since i! is a segment of a route connecLlng restern
|linnesoLa to the I\din Cities.
(
PROPOSED TRANSPORTIITIOT: Ill PROVEI'IENTS: CurrenEly, there are no major
transportat.ion improvements planned for existing 159/2L2. Topography and
floo,Jplain areas in eastern Chan;,assen and western Eden Prairie preclude
significanL futwe expansim. Ttre pending improvenrent mGE affecting existing
U.S. 169/212 is Lhe plannal constniction of nevr T.H. 212. 9,lhen the ne,, routels built, it will subetantially eliminate increased traffic a lorg the exist.irgroute. ExisLing 169/272 is not, adeguate to hardle exist.ing traffic flcers.
fmprovemenEs will be needed Lo reCuce accident rates ard enhance public
sa fe Ly.
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koposed lard uses along Lhe U.S. 169 e U.s. 212 Corridor have been ldentlfled
as a staLement of lorE term ciEy pollcy. In this case, long Lerm lE defined
as belng post 2000, possibly 2020 oc beyond. The City of Chanhassen does not
plan to expard the business fringe (BF) zone, hence, development will not.
occur prior to the availability of sanitary seuer service. tong term land
uses follow a theme of diversity ln order to ensure a future balance oE
functlon ard aesthetics.
l{hen urban sewices become avallable, the north side of the U.S. 169/212
corridcr ls expectoJ to develcp as medlurn &nsl ty ard high &nsi ty res idential
wlth the exception of the existing commercial area. Prcperly on the souLhsi& of 169/212 is within land designated as part of the lrinnesota Valley
Nat.ional wildlife Refuge. One small existirp area of cqrrErcial (buslness
fringe ) exists at the Chska hrorder.
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Proposed Land Use
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ffu A. Erhart
775 tlest 96th Street
Chanhassen, l{innesota 55317
To:
SubJect:
Date:
Planning Conmi ssl on
l{innesota Rlver Ualley Pl an
ilay I8, 1988
I
2
3
1
Hotel
Super Amerlca
Junk yard
Yacant restaurant bul I dlng
I
As a member of the Plannlng connlsslon .nd llvlng close to the t{innesotaRiver Y.alley a19a' I tave -cone to rppreclrte flie unlque resource rhichexists in our city. unfortunately, our-turrent approach do plannlnq in thisarea-guarantees both a nlssed opportunlty and ttid extenuation of iianqeroustraffic conditions by encouraglng comercial development rlthin this aiea.
The area in the valley from Flylng Cloud Alrport to Chaska north of TH 212consists of severe terraln rlth bluffs and'rash outs as you qo uo thevalley ra1l. The severe eroslon and numerous streams fldrinq- dorh thevalley uall give the area both a unique appe.rance and envlronmen[al quality
unique to our area. It 1l.s-o poses substantial danger any Hne deveiopmeni
occurs due to the unavoidable eroslon of the steep-terrain. The valliy inthis area south of TH 212 lles rlthln the llinnesoti ualley l{ationa'l ltildiife
Refuge.
In addition heavy traffic, much of it trucks, combined rith I three miledownhill grade, makes any. stops 9r turns ln the area extremely dangerous.since no service roads exlst on TH 212 buslnesses ln thls area must-accessdirectly onto TH 212.
The City of Eden Pralrle has already seen flt to preserve the valley bylaintaining much of the area north of TH 212 as Aorltultural . In addltionl
an- overlay Conservancy District llmlts developneni-ln-boiI the llinnesotiValley as rell as the Purgatory and Rlley Creek'rrtershed. Ihe Eden prairie
ordinance al.lows only Ag an! large lot resldenilrl uses. The only non-
conforming structure ln Eden Pralrie ls lyon,s Trp.
0ver th^e y€ars,_a few buslnesses have sprung up ln the valley ln Chrnhrssen.llany of -these have gone out of buslniss due msily to thL frct thrt thearea.really _doesn't .lend ltself to a buslness envl ronnent being Just rcrossthe brldge fron Shakopee. In _addltlon, the hervy trrfflc tnii [lgh speeds
discourage stops by trotorlsts rlong thls route.
The remainlng buslnesses on the south slde lnclude:
AII of these are non-conforfiing since this area is designated A-2 and alI of
the area south of IH 212 is included in the ilinnesota Valley Nationalllildlife Refuge.
lle have designated a portion of the valley in Chanhassen as BF (Business
Fringe) rhich is a cormerci al use. Existing businesses located within the
BF district in the TH l0l/21? intersection area lnclude:
I. Brookside Hotel2. Yacant gas stati on
The hotel is legal non-conforming since hotels are not allored in the BFdistrict. Jlo sewer and rater exists or is planned for this area, therefore
cormerci al use is limited to low Hater usage buslnesses.
tle have recently allowed three new business in this area: Cold storage,
garbage truck storage and cleaning, and outdoor display of merchandise
(Iandscape business). Fortunately the garbage truck business is not Iocated
directly on TH 212. The cold storage and landscape businesses however pose
a definite safety hazard for all customers of these businesses.
There are a number of issues rhich cause me to urge the members of the
Planning Comnission to recomend that the zoning ln this vicinity be changed
from BF to A-2 Agricultural Estate. (I an not suggesting we change the BF
area existing next to Chaska.)
t. l{e have an irmediate opportunity to provide a truly unique green
area within the metropolitan area for future generations. If we
delay, we rill probably miss this opportunity altogether. Huch of
the area (south of IH 212, all of Eden Prairie, and most of
Chanhassen) is already restricted from development.
2. The landscape is delicate and surely doesn't lend itself to
development due to severe erosion potential .
3. Te are encouraging business to develop along a highway xhere a
long downhill run causes traffic to travel at speeds ranging from
55-70 mph. The density of traffic in this area averages 20'000
vehicles per day. lluch of this is grain trucks rhich simply
cannot stop when coming dom the hill. To encourage aore dlrect
access onto TH 212 is simply golng to dlrectly cost lives. 0n the
one hand, the clty is taking the responslblllty to encouraging the
growth of a comnerci al area but re are not provlding the access
roads vhich are requi red for safe ingress and egress for these
businesses. I have voted against each of the tro proposals
because I cannot in good conscience agree to creating such a
dangerous s I tuati on.
2
5
A cormercial area requires sewer and water. Sewer and rrater is
not planned for this area for any time rithin the next 30 years.
Designating the area A-2 is totally appropriate in that a certain
amount of agriculture use occurs in the area today. The Valley in
Eden Prairie and most of Chanhassen is already designated
agricultural and Iou density residential . In addition, the area
includes two homes rhich rould confomr nicely to the allowable
uses in the A-2 area. Lastly, the one unlt on l0 acres and largelot requi rement of residential development in the A-2 district
rould conveniently Ilmit the growth of homes preventing lncreased
density, further eroslon and traffic problems,
Changing the zoning to A-2, Agricultural Estate a'llows reasonable
use of the property: Agricultural or residential lots. l{e've
seen that the area is not a viable cornerc i a l area, therefore itis arguable rhether the property is worth more or less zoned
comrercial . Zoned cormercial restricts the owners from selling
residenti aI Iots.
6
I believe the urgency of this matter should cause imediate
recorrnendati on to council before any additional plans are su
commercial use of this area.
passing
bmitted
on thl s
for the
'- v1
TAE:j
3
4.
/t
MEUORANDUM
TO: Planning Commission
FROM: Barbara Dacy, CitY
DATE: April 29, 1988
SUBJ: BF, Business Fringe
(
PL anne r
District Di scuss i on
r CITY OF
Elflfl}flIIfr$$EI[
690 COULTER DRIVE ' P.O. BOX 147 ' CHANHASSEN. MINNESOTA 55317
(612) 937-1900
This iLern was tabled from the April 20, 1984, meeting. AtLached
is a letter f rorn Commissioner Ertrart regarding his aguments to
rezone Ehe current land zoned as Business Fringe District from TH
101 on the west to the eastern property limits of Ehe former
t4obi1 SEation on the north side of TH 212. The following analy-
zes the uses currently existing and proposed in that area'
The subject are rras rezoned to the BF District aLong rdith the
ef f ect.iie rlaEe of the new Zoning ordinance on February 19' 1987'
Origina1Iy, this area and the area to the east was zoned C-3 by
the-formei L972 Zooing Ordinance (where Moon valley Excavation
and RifLe Range exist). Thereforer the city upon adopting- the
new Zoning Map reduced the originally considered comrnercial area
to its cuirenl size. There is only one other BF district area
farther to the west on rn 2L2 iriunediaLely adjacent Eo Chaska now
occupied by Gary Brownts mini-warehouse units. The existing uses
on tire soulh siae of, rH 2L2 are zoned A-2, Agricu!'tural Estate
and are considered non-conforming. The 1972 ordinance did not
include this area as commercial and had been zoned R-la,
Agricultural Residence. In the BF DisLrict area on the north
side of TH 2I2 east of TH 10I, there are currently eight property
ownerships: I) Brookside HoEelr 2) the former Lydia feich prop-
erty now approved for Admiral !{aste flanagement contractort s
yard, 3) Biambillars ProPerty now authorized for outdoor display
of landscape products, 4) the Sorenson/Jed I i ck i ProPertyauthorized foi cold storage warehouse units, 5) the Vernon Teich
property which is cufrently in srnall agricultural usage, 6) the
iorroer Mobil Station site, 7) and 8) two single family homes.
BACKGROU ND
AN.\LYS I S
The City ALtorney cautioned that uPon rezoning f rorn Business
Frtnge to the A-2. Agricultural EstaEe Distric!, the city would
(
Planning Cbmmiss ion
April 29, 1988
Page 2
have to show that rezoning would not be denying the individual
propert.y ovrner reasonable use of the land. If the Property can-
not- be used for a3ricultural or residential PurPoses, the
property ovJner may have a cfaim for a taking.
The Brookside Motel is currently non-conforming. The contrac-
tor's yard and coltl storage siEes are consistenE with the current
uses permitted in the BF, Business Fringe DisCrict as-well as
Brambilla's outdoor display of landscape products. of these
four parcels, only the contractor's yard property could be con-
siderid for an agricultural use because approximately 8 acres of
the total 13 acres could be farmed. The rear of the Brambilla
property is les:; than an acre in size. It is dubious as to
wtretner or noE a reasonable agricultural use exists on that pro-
perty. The former lfobiI Station and the Brookside Motel property
have no potential for agricultural use.
(
Except for the Brookside Motelr the existin
require little demands as to septic system
of the low number of employees needed to ru
However, in the case of the concractori s ya
a substantial building the property owner i
ments for sprinklering, installation of adequaE
holding tan.ks for purnping, and access improveme
gan
andnth
rd,s fa
il approved useswell use because
e businesses.in order to build
ced with requi re-
e well reservoirs,
nts.
9lhile iL is true Llrat iton-conforming uses should be discontinued,
iL should also be ensured that the proPerty can be used for some
other lyge of use. Given that the city established commercial
zoning ior the properties on the north side of TH 212 and has
authoiized a minimal amounl of use in that ir€dr r€rloving the
Business Fringe District, if pursued by the Commission or
Council, shouid be analyzed thororrghly by the AEtorneyt s Office
before final action. The properties on the south side of TH 212
have not had any type of cornmercial zoning placed on the proPerty
and have existed as non-conformi ties . The city is in a better
position in this manner in that it is noE removing any develoP-
nent rights previously established.
As is pointed out by Commissioner Erhartr there are advantages to
removing any cornmercial activity along this corridor given the
safety issu-es involved $ith TH 212 and 169. It rras estimated by
ltnDoT that in order to construct a bypass lane in front of the
subject area, it could cost up to S500r000. Further, as Pointed
out by Commissioner Erhart, there are visual -impacts.that-doarise- from commercial enterprises in this major corridor into the
community. Eden Prairie so far has been successful in prevenEing
commercill developmenc along its. corridor excePt for the Lionis
Tap which was previously established. Horrever, as one enters
Chlnhassen, because of the existence of these buildings and uses
for several years, a conrnercial pattern was created.
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PlanaingApril 29
Page 3
Commi ss ion
,I988
R ECOI'II.IENDAT I ON
These issues shouLd be discussed by the Planning Commission for
further staff direcEion. This oftice firmly believes in the
intent of Mr. Erhartrs cornments and concurs wittr the general
principles of limiting access onl-o a major arterial such as TH
ZfZ an-a preservirtg a pj.easing landscape through this-area of
chanhassen. Ito;ever, tlrere are potential legal implicaEions f rotn
chis action thaE upon Planning Cornmission direcuion should be
pursued in more detail.
A TTACIIMENTS
I
')
3
Loca t i on rnap .
Proposed co;ridor study and proposed transportation elemenc
of the Cotnprel:ens ive Pfan.
Letter from Titn Erhart dated April 26, L9ts8.
I have a larger scafe land use and proPerty ownership map
will be preseoted at the meeting.
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CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A.
Attorneys at Law
Thomas J. Campbell
Roger N. Knutson
(612)456-9539
Thomas M. Scott Facsimile (612) 456-9542
Gare G. Fuchs
James R. Walston
Elliott B. Knetsch
Dennis J. Unger
February 5, 1990
Mr. Paul Krauss
Chanhassen City Hall
690 Coulter Drive, Box 147
Chanhassen, Minnesota 55317
RE: Rezoning to Agricultural Designation
Dear Paul:
You asked me if rezoning property from commercial to
agricultural could constitute a compensable taking. A land use
regulation effects a taking when it deprives a property owner of
"economically viable use" of the property. Penn. Cert. Transp.
Co. v. City of New York, 438 U.S. 104 ( 1978) ; Nollan v.
California Coastal Commission, 107 S. Ct. 3141 ( 1987 ) . The Dakota
County District Court overturned Inver Grove Heights ' decision
not to rezone a 21 acre parcel from agricultural to industrial .
The court found the property was not suitable for agricultural
purposes, but was suitable for industrial use. Rich Valley
Partnership v. City of Inver Grove Heights, (1980) .
Agricultural zoning will result in a taking if it is not a
reasonable use of the property and no one would pay much, if
anything, for the property with that zoning designation.
Very truly yours,
CAMP ELL, K TSON, SCOTT
& FUCH .A.
BY:
Roger—I-: nuf son '�-
RNK:srn
. . .�
FEB 0 7 199J
urt OF CHANHASSEN
Yankee Square Office III • Suite 202 • 3460 Washington Drive • Eagan, MN 55122
erctre
5 11 . 60
SEC. 11.60. SLOPED GROUND DEVELOPMENT AND REGULATIONS.
Subd. 1. Findings and Purpose. The City finds that
development, excavation, or construction on certain slopes
within the City may result in the building of unstable struc-
tures, increase dangers of erosion and thereto endancer the
natural character of the land , and jeopardize the neap.. ,
safety, and welfare of the citizens of the City.
Subd. 2. Definitions. The following terms, as used
in this Section, shall have the meanings stated : _
1. "Steep Slopes" - Slopes of over 12% and of
elevation difference of 30 ' or more in a given parcel.
2. "Development" - Any excavation in excess of
50 cubic yards of soil or activity which first requires the
procurement of a building or land alteration permit from the
4 City.
Subd. 3. Review by Planning Commission and Council
of Development on Steep Slopes.
A. Development on Steep Slopes. No develop-
ment shall be conducted on a steep slope without first receiv-
ing a permit therefor from the Council. Approval or rejection -
of the proposed development shall be obtained in the following
manner :
1. Application. Prior to any development
on a steep slope, an application for a permit shall be made to
the City which shall contain a detailed plan for the develop-
ment which sets forth:
(a) The time period during which the
proposed development is to take place.
1111111 (b) The soil types which are found
on the site of the development.
(c) A map showing the topography of
the area to be developed.
(d) A map showing any alteration in _
the topography that would result from the proposed
IL 0 development.
(e) A description of the soil
quality in the area to be developed including permeability of -
OR the soil, susceptibility of the soil to erosion, drainage of
the soil, distance of the soil from underlying bedrock, sus-
ceptibility of the soil to changes in physical volume when
moistened and/or during periods of frost.
(f) Information relative to whether
the proposed development will cause and/or be affected by any
erosion problems.
(g) A description of any disturbance
to vegetation and other natural features that will result from
(9-17-d2) -
359
5 11 . 60
the development plus the manner in which the applicant pro-
poses to protect vegetation and other natural features tnat
will not be disturbed.
(h) A copy of all specifications,
blueprints and other detailed plans for the development .
(i) Information relative to the ade-
cuacv for the slope conditions and soil type of the foundation
and underlying material of any structure , including roads .
(j) Information relative to t^e ade-
quacy of controls and protection existing uphill from t`:e
proposed development which are designed to guard structures or
roads from being affected by mud , uprooted trees or other
materials.
(k) Information relative to the
adequacy of construction of any retaining walls in excess of
30 feet.
(1) Such other information as the
Planning Commission shall request from the applicant either
prior or subsequent to the initial review of the proposed
development by the Planning Commission.
2. The Planning Commission and the Parks,
Recreation and Natural Resources Commission shall review and
make a recommendation to the Council as to whether the permit
should be issued or denied.
3. The Council may then authorize or deny
issuance of the permit.
1111111 4. The review by the Planning Commission
and the final decision by the Council shall be based on con-
sideration of the following factors :
(a) Whether the application is com-
plete, accurate and in all respects conforms with Item 1 of
this Subparagraph A.
(b) Whether , and the degree to
which, the proposed development will cause and/or be affected
111111 by erosion problems.
(c) Whether any structures erected
as part of the development will have adequate foundation and
underlying material.
(d) Whether , and the degree to
111111 which, the development will alter vegetation, topography, or
other natural features of the land.
(e) Any other factors relating to
whether the proposed development will cause any risk of harm
to any persons, property or animals.
5. If the Council decides to authorize
issuance of a permit, it may do so subject to compliance with
reasonable conditions which shall be specifically set forth in
11111 the permit. Such conditions may, among other matters, limit
the size, kind or character of the proposed work, require the
construction of other structures , require replacement of
(9-17-82)
360
N
1 11 .60
1111/1 vegetation or other natural features, establish required
monitoring procedures and maintenance activity, stage the :+orR
over time, require the alteration of the site design to ensure
buffering, or require a performance bond.
1111116. An applicant shall begin the wor <
authorized within 60 days from the date of authorization of
the issuance of the permit unless a different date fcr the
commencement of the work is designated by the Council. The
applicant shall complete the work authorized within the time
limit specified in the permit. Should the work not be com-
menced as specified herein, the permit shall become void; pro-
vided, however , that if prior to the date established for
commencement of the work, the applicant makes written request
to the Council for an extension of time to commence the wore
setting forth the reasons for the required extension, the
Council may grant such extension.
7. Notice of Completion. An applicant
shall notify the Council in writing when he has finished the
work. No work shall be deemed to have been completed until
approved in writing by the City Engineer following such
111011 written notification.
B. General Provisions.
1. Responsibility. Neither the issuance -
of a permit nor compliance with the conditions thereof, nor
with the provisions of this Section shall relieve any person
;, from any responsibility otherwise imposed by law for damage to _
persons or property; nor shall the issuance of any permit
hereunder serve to impose liability on the City or its
officers or employees for injury or damage to persons or prop-
erty. An approval of an application issued pursuant to this
Section shall not relieve the applicant of the responsibility
of complying with any other requirement established by law,
regulation or City Code provision.
Source: Ordinance No. 82-18
Effective Date: 9-17-82
11 (Sections 11.61 through 11.64 , inclusive, reserved for
future expansion. )
(9-17-32)
361
Tim A. Erhart
775 West 96th Street
Chanhassen, Minnesota 55317
(612) 474-1116
February 5, 1990
To: Mr. Paul Kraus, Director of Planning
Chairman & Members of the Planning Commission
Subject: Conditional Use Permit and Site Plan Review for cold
storage unit expansion located in the current BF District
on Highway 212 & 169 in the Minnesota River Valley.
It is with regret that I will be unable to attend Wednesday's Planning
Commission meeting. It is for this reason I am writing to you on a matter
which is, in my opinion, very urgent and must be considered and acted upon
by the Planning Commission.
Those of you who have been on the Commission for some time have already
faced a number of proceedings involving our BF District. I believe that
most, if not all , of us have concluded that the City has created an
invitation for a never ending series of problems for both the City and the
developers who are encouraged by the ordinance to develop their property
in this location.
I have some empathy for Mr. Sorensen who, like many property and business
owners, has a dream for developing and profiting on his investment.
Development today, unlike 25 years ago, has become a complicated and
expensive business. This has resulted from the number of people it
affects and by the sophistication which has evolved from planners' and
citizens' experiences with developers and their efforts to avoid the
mistakes which have been made in the past. Like any business decision,
no investment should ever proceed without a clear understanding of the
expenses and a commitment required to see a project through to a
successful completion.
It seems quite clear that Mr. Sorensen and his original partner were
totally unprepared for the level of commitment required to bring this
dream to a profitable conclusion. Moreover, in an attempt to recover from
the increased levels of investment, the developer has chosen to ignore the
City's conditions for this development and expand the use far beyond those
originally approved.
I believe the City has contributed somewhat to this mess. We encourage
this kind of development by creating a zoning district which is
inconsistent with the social , geological and transportation realities
TIMPERSN\KRAUS 02/05/90j - 1 -
which exist in this area. Additionally, designating this district as
commercial is in conflict with our own comprehensive plan for this area.
After studying the material received this week from Staff, it becomes
quite apparent that there really isn't any good resolution to the mess
which now exists. The remaining partner, Mr. Sorensen isn't willing,
and/or cannot afford, to complete the project as approved. Now he is
somehow going to fix it all by making it bigger. The fundamental problem
here is that this entire project doesn't make any business sense unless
it is configured as something more intensive than simply cold storage.
Mr. Sorensen has now secretly converted this plan to a contractor's
yard/office building - neither of which is permitted in this district.
I believe that allowing the proposed expansion is the worst possible thing
we can do at this time and suggest the following:
1 . Move the consideration of rezoning the BF District to the top of
the Planning Commission's agenda. It is suggested that this area
may not be suited for agriculture or single family development.
Actually, both residential and agricultural exist in this
district now without problems. Certainly, it is not capable of
supporting a higher intensity use such as commercial .
2. That we deny this application and work with Mr. Sorensen to bring
the current project to a level of completion consistent with the
conditions laid out in the conditional use permit. Additionally,
now that the soil is disturbed and the vegetation removed, we
need to solve the problems which have been created e.g. , erosion,
instability, and the incompatibility with surrounding residential
areas, etc. Screening should consist of a mixture of Norway
Pine, Scotch Pine and spruce with minimal planting size of 5 ft.
in height of burlapped trees. We should not allow just spruce
because they are a very slow growing tree. The heating system
and offices should be removed. Furthermore, no further
development of this property should be allowed except for the
construction of private homes.
I appreciate the Staff's and the Planning Commission's consideration of
my thoughts in this matter. I trust that a satisfactory recommendation
will be made and am hopeful of consideration of the BF District on an
early Planning Commission agenda.
Best regards,
Tim Erhart
TAE:j
TIMPERSN\KRAUS 02/05/90j - 2 -
Tim A. Erhart
775 West 96th Street
Chanhassen, Minnesota 55317
(612) 474-1116
January 22, 1990
Mr. Paul Kraus cc: Ladd Conrad
City Planner
City of Chanhassen
690 Coulter Drive
Chanhassen, MN 55317
Dear Paul ,
Enclosed is a copy of my letter to the Planning Commission dated 5/10/89. I
believe this still reflects my feelings on this. Since the time of this memo
we've since made additional plans for intensifying use in our BF District. Now
I see that another proposal is at hand - that is the planned expansion of the
cold storage facility.
I believe the Planning Commission has had opportunity to consider the merits of
rezoning the BF District and would welcome the opportunity to pass such a
recommendation on to the Council .
If you would, I ask that this subject be added to our agenda as soon as possible.
S. cerely,
Tim t. �E1�hart
TAE:j
j AN 2 41933
• O1 OF CHA
At Ott
• )J • •
'NA
:ity of Eden Prairie 1 A
:ity Offices F �� r��r
.600 Executive Drive • Eden Prairie, MN 55344-3677 • Telephone (612) 937-2262
June 13, 1988
Barb Dacy
City Planner
City of Chanhassen
690 Coulter Street
Chanhassen, MN 55317
RE: DEVELOPMENT CONTROL ALONG U.S. HIGHWAY #169
Dear Ms. Dacy:
With the exception of the Lion 's Tap, all development along U.S. Highway #169 west
of the landfill is Low Density Residential . This is controlled by the Eden Prairie
Comprehensive Guide Plan and City Code Chapter 11, Zoning Regulations.
The Comprehensive Guide Plan depicts all property north of U. S. #169 for Low
Density Residential development (up to 2.5 units/acre) , and all property to the
south for Public Open Space. It is the U.S. Fish and Wildlife Service intention to
acquire all property south of U.S. #169 as shown on the Comprehensive Guide Plan.
They currently own approximately 200 acres and plan on acquiring an additional 1500
acres.
The majority of the property in southwest Eden Prairie is currently zoned Rural . -
The purposes of the R-Rural District are to: (1) Prevent premature urban
development of certain lands which eventually will be appropriate for urban uses,
until the installation of drainage works, streets, utilities and cornnunity
facilities and the ability to objectively determine and project appropriate land use
patterns makes orderly development possible; (2) Permit the conduct of certain
agricultural pursuits on land in the City; (3) Ensure adequate light, air, and
privacy for each dwelling unit, and to provide adequate separation between dwellings
and facilities for housing animals.
Permitted uses within Rural Districts are as follows :
A. Agriculture, accessory and related uses.
B. Public facilities and services.
C. ringle family detached dwellings and accessory structures without
platting on parcels of not less than 10 acres.
D. Single family detached dwellings and accessory structures without
platting on parcels of five or more acres, but less than ten acres,
as of July 6, 1982.
E. Commercial stables.
F. Golf courses. _
JUN 1 ,1 1'JO8
Barb Dacy
June 13, 1988
Page 2
As you can see, the key to controlling development along U.S. #169 is through the
_ use of the Comprehensive Guide Plan, which designates the property as Low Density
Residential, and the zoning regulations.
_If you require any additional or more detailed information, please feel free to call
me.
Sincerely,
City of Eden Prairie
CaP Li '-
Donald R. Uram, A. I.C.P.
Assistant Planner
DRU:bs
C-
U.S. 169/212 (Flying Cloud Drive) -
Corridor Study _
LOCATION AND LENGTH: Ecom Chanhassen's eastern border (Eden Prairie) to the
western border (Chaska). Approximately 2.7 miles. —
FUNCTIONAL CLASSIFICATION: Minor Arterial (1987 Chanhassen Comprehensive -
- Plan).
AVERAGE DAILY TRAFFIC: 20,000 (1984) East of T.H. 101
19,600 - 35,400 (2005) Depending upon Construction of
New T.H. 212.
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DCRIPTION: U.S. 169/U.S. 212 is a combined roadway traversing the extreme
southern section of Chanhassen. The two lane, undivided highway carries
substantial traffic since it is a segment of a route connecting western —
Minnesota to the Twin Cities.
PROPOSED LAND USE: Southern Chanhassen is not served by sanitary sewer. —
Consequently, no new urban scale development has occurred in recent years. A
series of "grandfathered” businesses exists east of the intersection of U.S.
169/212 and U.S. 169/T.H. 101. Of these uses, some are conforming to the —
business fringe (BF) zone while others are non-conforming.
The land use element of the 1987 Comprehensive Plan acknowledges the existence
of the conforming uses, however, land use policies discourage their expansion. —
Non-conforming uses by ordinance are prohibited from enlarging or extending
their operations.
C I4T
Proposed land uses along the U.S. 169 & U.S. 212 Corridor have been identified
as a statement of long term city policy. In this case, long term is defined
as being post 2000, possibly 2020 or beyond. The City of Chanhassen does not
plan to expand the business fringe (BF) zone, hence, development will not
occur prior to the availability of sanitary sewer service. Long term land
uses follow a theme of diversity in order to ensure a future balance of
function and aesthetics.
When urban services become available, the north side of the U.S. 169/212
corridor is expected to develop as medium density and high density residential
with the exception of the existing commercial area. Property on the south
side of 169/212 is within land designated as part of the Minnesota Valley
National Wildlife Refuge. One small existing area of commercial (business
fringe) exists at the Chaska border.
PROPOSED TRANSPORTATION IMPROVEMENTS: Currently, there are no major
transportation improvements planned for existing 169/212. Topography and
floodplain areas in eastern Char;:,assen and western Eden Prairie preclude
significant future expansion. The pending improvement most affecting existing
U.S. 169/212 is the planned construction of new T.H. 212. When the new route
is built, it will substantially eliminate increased traffic along the existing
route. Existing 169/212 is not adequate to handle existing traffic flags.
Improvements will be needed to reduce accident rates and enhance public
safety.
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Tim A. Erhart
775 West 96th Street
Chanhassen, Minnesota 55317
To: Planning Commission
Subject: Minnesota River Valley Plan
Date: May 18, 1988
As a member of the Planning Commission and living close to the Minnesota
River Valley area, I have come to appreciate the unique resource which
exists in our city. Unfortunately, our current approach to planning in this
area guarantees both a missed opportunity and the extenuation of dangerous
traffic conditions by encouraging commercial development within this area.
The area in the valley from Flying Cloud Airport to Chaska north of TH 212
consists of severe terrain with bluffs and wash outs as you go up the
valley wall . The severe erosion and numerous streams flowing down the
valley wall give the area both a unique appearance and environmental quality
unique to our area. It also poses substantial danger any time development
occurs due to the unavoidable erosion of the steep terrain. The valley in
this area south of TH 212 lies within the Minnesota Valley National Wildlife
Refuge.
In addition heavy traffic, much of it trucks, combined with a three mile
downhill grade, makes any stops or turns in the area extremely dangerous.
Since no service roads exist on TH 212 businesses in this area must access
directly onto TH 212.
The City of Eden Prairie has already seen fit to preserve the valley by
maintaining much of the area north of TH 212 as Agricultural . In addition,
an overlay Conservancy District limits development in both the Minnesota
Valley as well as the Purgatory and Riley Creek watershed. The Eden Prairie
ordinance allows only Ag and large lot residential uses. The only non-
conforming structure in Eden Prairie is Lyon's Tap.
Over the years, a few businesses have sprung up in the Valley in Chanhassen.
Many of these have gone out of business due mostly to the fact that the
area really doesn't lend itself to a business environment being just across
the bridge from Shakopee. In addition, the heavy traffic and high speeds
discourage stops by motorists along this route.
The remaining businesses on the south side include:
1 . Hotel
2. Super America
3. Junk yard
4. Vacant restaurant building
1
All of these are non-conforming since this area is designated A-2 and all of
the area south of TH 212 is included in the Minnesota Valley National
Wildlife Refuge.
We have designated a portion of the valley in Chanhassen as BF (Business -
Fringe) which is a commercial use. Existing businesses located within the
BF district in the TH 101/212 intersection area include:
1 . Brookside Hotel
2. Vacant gas station
The hotel is legal non-conforming since hotels are not allowed in the BF
district. No sewer and water exists or is planned for this area, therefore
commercial use is limited to low water usage businesses.
We have recently allowed three new business in this area: Cold storage,
garbage truck storage and cleaning, and outdoor display of merchandise
(landscape business) . Fortunately the garbage truck business is not located
directly on TH 212. The cold storage and landscape businesses however pose
a definite safety hazard for all customers of these businesses.
There are a number of issues which cause me to urge the members of the
Planning Commission to recommend that the zoning in this vicinity be changed
from BF to A-2 Agricultural Estate. (I am not suggesting we change the BF
area existing next to Chaska. )
1 . We have an immediate opportunity to provide a truly unique green
area within the metropolitan area for future generations. If we
delay, we will probably miss this opportunity altogether. Much of
the area (south of TH 212, all of Eden Prairie, and most of
Chanhassen) is already restricted from development.
2. The landscape is delicate and surely doesn't lend itself to
development due to severe erosion potential .
3. We are encouraging business to develop along a highway where a
long downhill run causes traffic to travel at speeds ranging from
55-70 mph. The density of traffic in this area averages 20,000
vehicles per day. Much of this is grain trucks which simply
cannot stop when coming down the hill . To encourage more direct
access onto TH 212 is simply going to directly cost lives. On the
one hand, the city is taking the responsibility to encouraging the
growth of a commercial area but we are not providing the access
roads which are required for safe ingress and egress for these
businesses. I have voted against each of the two proposals
because I cannot in good conscience agree to creating such a
dangerous situation.
2
4. A commercial area requires sewer and water. Sewer and water is
not planned for this area for any time within the next 30 years.
5. Designating the area A-2 is totally appropriate in that a certain
amount of agriculture use occurs in the area today. The Valley in
Eden Prairie and most of Chanhassen is already designated
agricultural and low density residential . In addition, the area
includes two homes which would conform nicely to the allowable
uses in the A-2 area. Lastly, the one unit on 10 acres and large
lot requirement of residential development in the A-2 district
would conveniently limit the growth of homes preventing increased
density, further erosion and traffic problems.
6. Changing the zoning to A-2, Agricultural Estate allows reasonable
use of the property: Agricultural or residential lots. We've
seen that the area is not a viable commercial area, therefore it
is arguable whether the property is worth more or less zoned
commercial . Zoned commercial restricts the owners from selling
residential lots.
I believe the urgency of this matter should cause immediate passing on this
recommendation to council before any additional plans are submitted for the
commercial use of this area.
TAE:j
3
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CITY OF -
HANHASSEN
690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317
(612) 937-1900
MEMORANDUM
TO: Planning Commission 'jar -
FROM: Barbara Dacy, City Planner
DATE: April 29 , 1988
SUBJ: BF, Business Fringe District Discussion
This item was tabled from the April 20 , 1988 , meeting. Attached
is a letter from Commissioner Erhart regarding his aguments to -
rezone the current land zoned as Business Fringe District from TH
101 on the west to the eastern property limits of the former
Mobil Station on the north side of TH 212 . The following analy-
zes the uses currently existing and proposed in that area.
BACKGROUND -
The subject are was rezoned to the BF District along with the
effective date of the new Zoning Ordinance on February 19 , 1987 .
Originally, this area and the area to the east was zoned C-3 by
the former 1972 Zoning Ordinance ( where Moon Valley Excavation
and Rifle Range exist) . Therefore, the city upon adopting the
new Zoning Map reduced the originally considered commercial area
to its current size. There is only one other BF district area
farther to the west on TH 212 immediately adjacent to Chaska now
occupied by Gary Brown' s mini-warehouse units . The existing uses
on the south side of TH 212 are zoned A-2 , Agricultural Estate
and are considered non-conforming. The 1972 ordinance did not
include this area as commercial and had been zoned R-la,
Agricultural Residence. In the BF District area on the north -
side of TH 212 east of TH 101 , there are currently eight property
ownerships: 1 ) Brookside Motel , 2 ) the former Lydia Teich prop-
erty now approved for Admiral Waste Management contractor' s -
yard, 3 ) Brambilla' s property now authorized for outdoor display
of landscape products , 4 ) the Sorenson/Jedlicki property
authorized for cold storage warehouse units , 5 ) the Vernon Teich
property which is currently in small agricultural usage, 6 ) the
former Mobil Station site, 7 ) and 8 ) two single family homes.
ANALYSIS
The City Attorney cautioned that upon rezoning from Business
Fringe to the A-2, Agricultural Estate District, the city would
Planning Commission
April 29 , 1988
Page 2
have to show that rezoning would not be denying the individual
property owner reasonable use of the land . If the property can-
not be used for agricultural or residential purposes , the
- property owner may have a claim for a taking .
The Brookside Motel is currently non-conforming . The contrac-
-
tor' s yard and cold storage sites are consistent with the current
uses permitted in the BF, Business Fringe District as well as
Brambilla' s outdoor display of landscape products . Of these
four parcels , only the contractor' s yard property could be con-
sidered for an agricultural use because approximately 8 acres of
the total 13 acres could be farmed . The rear of the Brambilla
property is less than an acre in size . It is dubious as to
whether or not a reasonable agricultural use exists on that pro-
perty. The former Mobil Station and the Brookside Motel property
have no potential for agricultural use .
Except for the Brookside Motel , the existing and approved uses
require little demands as to septic system and well use because
of the low number of employees needed to run the businesses .
However , in the case of the contractor ' s yard, in order to build
a substantial building the property owner is faced with require-
_ ments for sprinklering , installation of adequate well reservoirs ,
holding tan:cs for pumping , and access improvements .
While it is true that :ion-conforming uses should be discontinued ,
it should also be ensured that the property can be used for some
other type of use . Given that the city established commercial
zoning for the properties on the north side of TH 212 and has
authorized a minimal amount of use in that area , removing the
Business Fringe District, if pursued by the Commission or
Council , should be analyzed thoroughly by the Attorney' s Office
before final action . The properties on the south side of TH 212
have not had any type of commercial zoning placed on the property
and have existed as non-conformities . The city is in a better
position in this manner in that it is not removing any develop-
ment rights previously established.
As is pointed out by Commissioner Erhart, there are advantages to
removing any commercial activity along this corridor given the
safety issues involved with TH 212 and 169 . It was estimated by
MnDOT that in order to construct a bypass lane in front of the
subject area , it could cost up to $500 , 000 . Further, as pointed
out by Commissioner Erhart , there are visual impacts that do
arise from commercial enterprises in this major corridor into the
community . Eden Prairie so far has been successful in preventing
commercial development along its . corridor except for the Lion ' s
Tap which was previously established . However , as one enters
Chanhassen , because of the existence of these buildings and uses
for several years , a commercial pattern was created.
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Planning Commission .
April 29 , 1988
Page 3
RECOMMENDATION
These issues should be discussed by the Planning Commission for _
further staff direction. This office firmly believes in the
intent of Mr. Erhart' s comments and concurs with the general
principles of limiting access onto a major arterial such as TH
212 and preserving a pleasing landscape through this area of-
Chanhassen . However, there are potential legal implications from
this action that upon Planning Commission direction should be
pursued in more detail .
ATTACHMENTS
1 . Location map.
2 . Proposed corridor study and proposed transportation element
of the Comprehensive Plan . —
3 . Letter from Tim Erhart dated April 26 , 1988 .
NOTE: I have a larger scale land use and property ownership map
which will be presented at the meeting .
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Law and a New Land Ethic '
John A. Humbach* {'
As open space comes under increasingdevelopmenti r 1 -7.:'....:_
pressure, ex- tO. _
isting-use zoning provides a direct and forthright way to preserve the io-
line between urban and non-urban land use. Ultimately it may be the
— only practical means for protecting high-demand or sensitive areas l
such as wetlands, coastlines, lakeshores, ' `'
floodplains, stream corridors, 1,
and pristine reservoir watersheds. This Article reviews the viability ;
of existing-use zoning under United States Supreme
Court interprets-
- tions of the Constitution's takings clause. It concludes that nothing in
those interpretations disallows this straightforward approach to pre-
serving our country's familiar patterns of land use and development i
When the settlers came to colonize America, they came for
land — for land to practice their faith, land to escape the heavy ....--•.:::-' .
hand of hierarchy, and land to call their own. Beyond a doubt t =_ _
they prized the land to call their own. When the thirteen colo-
nies organized the United States, their Bill of Rights included '' `
no fewer than four separate p provisions aimed specifically at
protecting private interests in property.)
One of the new nation's first imperatives was to populate ,
* Professor of Law and Associate Dean for Academic Affairs, Pace Uni-
versity School of Law.
1. The third amendment limits the federal government's power to quar-
ter soldiers "in any house, without the consent of the Owner." U.S. CONST.
amend. III. The fourth amendment protects "the right of the people to be se- -• _
cure in their persons, houses, papers and effects." U.S. CONST. amend. IV.—
The fifth amendment provides twogeneral property p q •. _ _ `""� _
pro rt protections: the re uire- [I 11{I '
ment of due process before government action deprives a person of property, it-iiti
and the requirement of just compensation when the government takes private - .
property for public use. U.S. CONST. amend. V.
i,1{ .
The Supreme Court also has applied the contract clause of the Constitu- -'i I • --
tion, art. I, § 10, to protect private property interests from government inter-
ference. See e.g., Keystone Bituminous Coal Assn v. DeBenedictis, 480 U.S. 1 i',':",.1
470, 502 (1987) (noting that "[p]rior to the ratification of the Fourteenth r 11''; _ _ `1r
Amendment, [the contract clause]was . - .the primary constitutional check on
state legislative power"); Appleby v. City of New York, 271 U.S. 364, 396-403 },` ! I. •
(1926) (holding that the city's attempt to promote navigation over tidal prop- is i.
erty previously conveyed by the city to individuals was unconstitutional im- f __
pairment of contract); cf. Wilson v. Iseminger, 185 U.S. 55, 60-65 (1902) t ; _
— (reasoning that state law changing statute of limitations for property owners' a;
ground rent claims did not unconstitutionally impair contracts reserving rent j: . ..i
as long as owners had an opportunity to preserve their rights). 1-1
-
339 I:, I' ''-• : `_ - -_
:!..:-.-->-:,c,2- _ tiz^
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.
340 MINNESOTA LAW REVIEW [Vol. 74:339
the vast western spaces, to harness the wilderness to the arts of
• humankind. Americans did not want their land to stay the way
•
it was. As pioneers pushed the frontier westward, their shared
vision of the future was progress through change. Decisions
about where and how to alter the land were, and still mostly
are, left to individual owners. The nation was built by private —
initiatives on privately held land.2 The American land ethic
grew as an ethic of owner autonomy and change.
The American landscape has been transformed. Instead of _
a great wilderness, America's land is now a groomed and clut-
tered place. The remnant wild lands lie in isolated bits in the
east and in larger fragments farther west.3 The natural
landbase that supported roughly one million native americans
is today a greatly modified resource that supports nearly 250
million. But we can no longer live from the natural land.4
2. See generally COUNCIL ON ENVTL. QUALITY, 1985 ENVTL. QUALITY:
THE SIXTEENTH ANNUAL REPORT OF THE COUNCIL ON ENVTL. QUALITY 33-54
(1985), noting that:
[T]he main policy thrust into the early 20th century was to transfer —
land from federal ownership to private individuals, developers and se-
lected industries such as railroads. . . . [The goals for the land trans-
fers were] largely left to the new owners and developers, and the
workings of the free marketplace. . . .
- - • Congress clearly believed the vast public domain would be
more valuable to the growing nation if it were transferred to the
hands of those who could develop it. There was no detailed plan for
development prepared by economists, scientists, or anyone else. .
The main guidelines appear to have been that the lands should be set-
tled rapidly,at little or no cost to settlers, and that the new ownership
should be predominantly private and widely distributed.
Id. at 35, 38. _
3. Wilderness lands designated within the National Wilderness Preserva-
tion System total about 90 million acres in 474 units ranging in size from 36
acres to over 7 million acres. A Twenty-fifth Anniversary Vision for the Fu-
ture of the Nation's Wilderness, 52 WILDERNESS No. 184 at 6 (Spring 1989) (in- _
cluding map insert showing locations). Many other wild and semi-wild lands
still remain. In contrast, the 48 contiguous states include 1.3 billion acres de-
voted to crops, grasslands, pastures, range, and "other" uses, including urban,
transportation, parks, defense, and industrial. COUNCIL ON ENVTL. QUALITY,
supra note 2, at 40. —
4. Were it not for enormous infusions of petroleum, for example, the
American landbase already might not be able to feed the people who populate
it. The finite petroleum resource plays several key roles in enhancing agricul-
tural productivity: It fuels farm machinery and fertilizer production, see —
•
WORLDWATCH INST., 1987 STATE OF THE WORLD 130-32 (1987), and is essential
•
•
for transporting food products from farms to population centers. Id. at 51.
After millenia of living off our "income" (the world's renewable re-
- • sources), human population has reached the point where survival requires an —
ever greater depletion of our planet's non-renewable "capital" — something
•� .-%i- - J .� •r':- `I�1i: .•rt4;_rt.�.,�i�'��`c,:.�-1:.
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1989] EXISTING-USE ZONING 341 , ' :/--....,. .,--
As the character of the land has evolved, so too has the vi- 7 1
sion of the future. Now, more and more, neighbors view devel- r.
opment with suspicion and even hostility. "Excessive" 1; •
rrl
development conjures up images of cities sprawling until their
- suburbs meet, swallowing up the countryside in between.5
Americans increasingly would like to keep our country looking `• ,. ---
much the way it is — to harness not the dwindling wild lands
but rather the bulldozers of land profiteers.6 To many, in
•
short, the old land ethic of autonomy and change no longer can
produce the best results. A new land ethic, an ethic of planning .i • •
and stability, has emerged.7
As the new land ethic has gained momentum, citizens have
pressed to share in the decisions about growth. The spread of
zoning and environmental regulations is proof that the Ameri-
can landbase is seen, more than ever, as a shared resource of i, -
all. The permanence and immobility of land make it a very ;
•
t.
— that cannot, presumably, go on forever. R. ORNSTEIN & P. EHRLICH, NEW
WORLD NEW MIND 45-48 (1989). j !!'
5. In the thirty-one county area around New York City,for example,the ;I
amount of developed land increased by more than 30%between 1964 and 1985,
— while the population grew only 5%. REGIONAL PLAN ASSN, WHERE THE PAVE- 1
MENT ENDS 4, 14 (1987). `
6. For a discussion of some of the origins of concern and variety of ° �•l
problems associated with inadequately controlled development, see R. HEALY,
_ LAND USE AND THE STATES 4-6, 15-34 (2d ed. 1976). The competing views on i ''i
land use reform also receive detailed description in F. POPPER, THE POLITICS '-.
OF LAND-USE REFORM 56-75 (1981). Popper notes, in one colorful example, +'Gi "
that horrified Oregonians even coined a new term, "Californication," to de- I;
scribe "the California-style destruction of the environment" that they see as—
threatening to creep up the coast from the south. Id. at 58. "`. 4 ti
7. According to Aldo Leopold "[a]n ethic is a differentiation of social + i; -
from anti-social conduct." A. LEOPOLD, A SAND COUNTY ALMANAC WITH i -
OTHER ESSAYS ON CONSERVATION FROM ROUND RIVER 217-18 ([Ballantine] . I; _ • ..
— 1966). Leopold's essay criticizes the traditional land-use ethic "still governed
wholly by economic self-interest."Id. at 224. He advocates instead a land ethic + .
under which all living "members of the land community . . . should continue 1' a ,i. -
as a matter of biotic right, regardless of the presence or absence of economic ',ral
advantage to us." Id. at 226.
The new land ethic referred to in the text, an ethic of planning and stabil- I
ity, is neither the old ethic criticized by Leopold nor, precisely, the new one 1'
•
proposed by him. It is,however,clearly more compatible with the latter: Peo-
ple no longer find it so easy to believe that "the parable of the talents teaches ' , - _.
us that undeveloped land is a sin." P. JAMIESON, ADIRONDACK CANOE WA •
-
TERS; NORTH FLOW 92 (2d ed. 1984) (quoting Kenneth Durant). I'
8. See D. RAGMAN & J. JUERGENSMEYER, URBAN PLANNING AND LAND ' •1
DEVELOPMENT CONTROL LAW 378-80 (2d ed. 1986);see also Kusler,Regulating ,i :.:.1.-..----_-:-...f.:.-`
Sensitive Lands:An Overview of Programs, in LAND USE ISSUES OF THE 1980s f I!
128-53 (1983) (describing some approaches in the reported 94 new development :
control statutes enacted between 1965 and 1977). ,` , _.I- ''_=
iti
'',J -_ -}sem;
�t - ` — :r Ts ,y .� –'7� {• Him s_ `- -
• �� a `it ,sy •n^s e- _ -s �.
y
.. - r .s§tsSS ' �ti{ - sn17,
- i
_ Z
342 MINNESOTA LAW REVIEW [Vol. 74:339
special kind of commodity. Decisions about land use effectively
determine for everyone what our communities and countryside
will look like and the quality of life that our land will sustain.
The use of private land is never an entirely private affair.
Although citizens may react negatively toward particular
projects, both the population and the demand for material con-
sumption grow. Development is inevitable because developers
are entrepreneurs whose products all enjoy. The real issue is
not whether to develop but where. The need is not to stymie
growth but to create comprehensive land-use plans that will
maintain a balance between open lands and areas of more ur-
banized use.
The development expectations of land entrepreneurs often
present a significant challenge to the aspirations of the new
land ethic.9 The conflict is rooted in our tradition that all pri-
vate land presumptively is fair game for some type of "improve-
ment" or another. At least partly because of this conflict, no
doubt, comprehensive planning in the United States usually has
not included planning for privately owned permanent open
space.10 Despite the general embrace of land use planning, re-
strictions on land use still are sometimes seen as contrary to
the fundamental premise of land ownership.11 Americans still
prize having a place to call their own, and we do not like to
share the decisions on how we should use our particular pieces
of the national landbase.12
9. See generally R. HEALY, ENVIRONMENTALISTS AND DEVELOPERS: CAN
THEY AGREE ON ANYTHING? 1-5 (1977) (discussing efforts of environmentalists
and developers to blame each other for national housing problems, and calling
for joint problem solving). —
10. See F. ANDERSON, D. MANDELKER & A. TARLOCK, ENVIRONMENTAL
PROTECTION 795-96 (1984) (discussing changing role of land use regulations
from the early 1900s, when society viewed increases in land use density as de-
sirable and inevitable, to the late 1900s, when society focused instead on pres-
ervation of natural qualities of the ecological environment). For an excellent
•
review of open-space zoning, see 5 N. WILLIAMS, AMERICAN PLANNING LAW
§§ 157.01-158.42, at 383-529 (rev. ed. 1985).
11. See, e.g., R. EPSTEIN, PRIVATE PROPERTY AND THE POWER OF EMINENT
DOMAIN 265 (1985) (emphasizing that "(zjoning stands in stark contrast to a
• system of private property, which allows a single owner . . . to decide how to
•• use his plot of land"); see also id. at 63-73, 263-73 (criticizing Supreme Court's
eminent domain cases for failing to recognize the essential incidents of owner- _
ship: possession and use); B. SIEGEN, PLANNING WITHOUT PRICES 29-38 (1977)
(arguing that land use regulations adversely affect individual property rights);
cases cited infra note 13.
•• 12. In a highly critical jurisprudential appraisal of American land-use
laws, Professor Lynton K. Caldwell observed that "no other society appears to
have gone so far in leaving the fate of the land to the discretion of the private
.z2
•
•
. �•,ti si � ;� -�'=-tiYltJi:�':�.it; of..r rr Wr;- - wx -_ •_= «-
�._ }:•
.1S
. , w
7 ter•-" �.
.. _
•
l' ,i1,1 -:.-----. ' :
1989] EXISTING-USE ZONING 343 �sI z' _
i
Strong claims are made for private rights to control private
land.13 Litigants and legal commentators seriously debate
whether governmental bodies, byregulation, 1.'I •
mere can constitu- {;l
tionally require owners to preserve longstanding patterns of ' i '' _
s land use and open space.14 The protection of property rights in 1 , -•-.-:-.--:.-
owner." Caldwell, Rights of Ownership or Rights of Use?— The Need for a -:I ,
New Conceptual Basis for Land Use Policy, 15 WM. & MARY L. REv. 759, 762 I •
(1974). Caldwell concludes, however, that the benefits of this system are
mixed,working mostly to the detriment of those whose preference is stability: f
p . . . is beneficial chiefly to developers 1
"The present status of land ownership 1, -•
.
and speculators . . . . Mo the individual home owner mere ownership offers r 13.
little more than the illusion of security." Id. at 767.
13. Id. at 767. Recent cases narrowly interpreting rpreting the government's power ', •'
to restrict land to open space use include:A.A. Profiles, Inc. v. City of Ft. Lau- i;;
derdale, 850 F.2d 1483, 1483 (11th Cir. 1988) (a civil rights action holding that
— city ordinance rezoning property to prohibit industrial use was unconstitu- S
tional taking where property owner waspreviously authorized to put such - -
property to individual use);Florida Rock Indus., Inc. v. United States, 791 F.2d
893, 904 (Fed. Cir. 1986) (suggesting that depriving owner of right to fill wet-
_. lands may be a taking because "the balancingofpublic and
private interests ;j
reveals a private interest much more deserving of compensation"). Loveladies 11:li i
Harbor, Inc. v. United States, 15 Cl. Ct.381, 396 (1988) (suggesting that depriv-
Iii
:ng owner of right to fill wetlands may be a taking unless owner has some re- -r �
—
mining use); Karches v. City of Cincinnati, 38 Ohio St. 3d 12, 21, 526 N.E.2d 1
1350, 1357 (1988) (reasoning that riverfront zoning ordinance that changed 3'
:lassification of property to prohibit commercial use was an unconstitutional
along because it denied the owner beneficial use and did not advance substan-
ially a legitimate state interest); Allingham v. City of Seattle, 109 Wash. 2d
— 47, 952, 749 P.2d 160, 163 (1988) (holding that ordinance requiring private II
)wners to retain or restore certain lots to their natural state effected a taking). -
'he Supreme Court has not yet directly addressed this issue. +• ' •
14. For authority supporting the government's power to restrict land use S
— o open space, see Graham v. Estuary Properties, Inc., 399 So. 2d 1374, 1381-82 i -
i.
Fla) (upholding ban on wetlands development where proposed use would ad- t•.• I !
ersely impact environment),cert. denied, 454 U.S. 1083 (1981); Sibson v.State, h I•
15 N.H. 124, 126-30, 336 A.2d 239, 240-43 (1975) (reasoning that denial of per- 14; !
nit to fill salt marshland was within state's police power and "did not depreci- •
to the value of the marshland");Just v.Marinette County, 56 Wis.2d 7,17-18, •j• •
01 N.W.2d 761, 768 (1972) (stating that "an owner of land has no absolute and "' i -
nlimited right to change the essential natural character of his land");see also a;; 1: .
—
'.BOSSELMAN, D. CALLIES&J.BANTA,THE TAKINGS ISSUE: AN ANALYSIS OF P.
HE CONSTITUTIONAL LIMITS OF LAND USE CONTROL 168-75 (1973) (the classic
:udy of land use regulation since colonial times, concluding that the "myth"
..,f
f the takings clause limits regulation far more than actual court decisions); ? 'I
'orres, Wetlands and Agriculture:Environmental Regulation and the Limits q 'I} -
_ (Private `]� :
Property, 34 U. KAN. L. REV. 539, 553-62 (1986) (setting forth con-
icting case law. For authority casting doubt on government's power to re- t _-
:rict land use to open space, see cases cited supra note 13; see also Wilkins, 14 t •
lie Takings Clause: A Modern Plot for an Old Constitutional Tale, 64 NOTRE
— )AME L. REV. 1, 3 (1989) (arguing that Supreme Court's "lax construction of
-he takings clause demands correction"); Klock & Cook, The Condemning of t, _,r--.-y_ ,_ .:-.•"<
imerica: Regulatory "Takings" and the Purchase ik' ` v"�t-1 =
by the United States of . , " :-.•"-;•.----
.'.merica's Wetlands, 18 SETON HALL L. REV, 330, 339-54 (1988) (discussingin-
i~'' 'tet'=
-J - uri-r c -
---
y c rfix L +. s 2! �f TM 3 k K
_ R �TfL�v -moi
--.,�Jl . .- sly _
.. .x wfl�
344 MINNESOTA LAW REVIEW [Vol. 74:339
•
the Constitution's takings clausels is seen as a barrier to regula-
tions that would preserve private land "as is."16 If these claims
are well-founded then American land use planning may have
reached its constitutional limit. The new land ethic may run
aground on fundamental law. —
These claims, however, are extravagant. No such private
sovereignty in the use of land was ever premised in law, cer-
tainly not in the common law with its sic utere tuo ut alienum
non laedes.17 The claims, moreover, are inconsistent with the
social obligation of property that is inherent in the structure of
American law.
PROPERTY LAWS AS PUBLIC INTEREST LAWS
It is a fundamental axiom of American constitutionalism
that government exists to serve the public good. It is empow-
creased governmental regulation protecting nation's wetlands, and Supreme
Court decisions holding that such regulations are takings when they deny
owners a viable economic use of their land).
15. U.S. CONST. amend. V reads, in pertinent part: "nor shall private
property be taken for public use without just compensation." Although widely _
regarded as a doctrinal patchwork, the Supreme Court's holdings under the so-
called takings clause are in fact an operationally coherent body of law, as I
have described previously in Humbach,A Unifying Theory for the Just-Com-
pensation Cases: Takings, Regulation and Public Use, 34 RUTGERS L. REV. 243, _
279-89 (1982).
16. See, e.g., cases cited supra note 13. A regulation limiting land use can
result in a compensable taking under the fifth amendment even if the regula-
tion does not take away ownership or title as such. In the last ten years, the
Supreme Court has fixed upon two oft-repeated tests that determine whether
particular actions of government effect a compensable taking.
One of these formulations states that a land-use regulation will result in a
compensable taking if it "does not substantially advance legitimate state inter-
ests, or denies an owner economically viable use of his land." Agins v. —
Tiburon, 447 U.S. 255, 260 (1980) (citation omitted). In its other formulation,
the Court attaches "particular significance"to three factors: "the economic im-
pact of the regulation, its interference with reasonable investment backed ex-
pectations, and the character of the governmental action." Kaiser Aetna v. —
United States, 444 U.S. 164, 175 (1979); see also Humbach,Economic Due Pro-
• cess and the Takings Clause,4 PACE ENVTL. L. REV. 311,317-23 (1987) (discuss-
ing relationship between the two takings tests).
17. "Use what is yours so that others are not injured" for centuries has
• been the fundamental maxim of the law regulating the relations of landown-
• ers who share the same physical environment. See generally R. POSNER, Eco-
NOMIC ANALYSIS OF LAW § 3.5,at 42-43 (1986) (stating that "property rights are
not really exclusive in the sense of giving the owner of a resource the absolute _
right to do with it what he will"). For a discussion of the modern law of nui-
- •- - sance, see D. MANDELKER, LAND USE LAW 94-106 (2d ed. 1988); W. PROSSER&
W. KEETON, TORTS 616-30 (stud. ed. 1984).
CeZ�b —
•
•
:-.J rte' -- -
III
1989] EXISTING-USE ZONING 345
ered to enact laws only in the public interest.'B Property rights E �
are the creations of laws,19 and the law of property must, like ; .• .
all other law, serve a public purpose. l' j; .
= Because property law exists to serve the
P P Y public good, the
legal contours of private ownership do not necessarily include
everything that yields a private economic advantage.20 On the
contrary, legal property rights are shaped and limited by the
many competing needs of the general welfare.21 The legislative •
18. "[T]o justify the state in thus interposing its authority on behalf of the
public,it must appear,first,that the interests of the public generally,as distin- p
guished from those of a particular class,require such interference." Lawton v. •
Steele, 152 U.S.133, 137 (1894);see also Eubank v. Richmond,226 U.S. 137,142- ' 7
44 (1912) (reasoning that a statute giving certain property owners the power to
- establish building lines at their discretion is outside the state's police power -[ _
because the statute permitted owners to act solely for their own interest); -
Northwest Paper Co. v. Federal Power Comm'n, 344 F.2d 47, 51 (8th Cir. 1965)
(citing Reicheldorfer v. Quinn,287 U.S.315,321 (1932), for the proposition that
— "[s]tatutes said to restrict the power of the government by the creation of pri-
vete rights are, like other public grants,to be strictly construed for the protec-
tion of the public interest").
Although a monarchy,for example,might exist to servepurely �{u
private in-
- terests, this discussion assumes that American governmental bodies, state and 1 I; ,
federal, may not. The so-called guarantee clause,which "guarantees"a repub- 'a
lican form of government, may provide textual support for this assumption.
U.S. CONST. art. IV, §4. Because the guarantee clause is non-justiciable, how- 4.
ever, we do not have the advantage of definitive judicial exposition of its con-
tent- See J. NOWAK, R. ROTUNDA & J. YOUNG, CONSTITUTIONAL LAW 108 (3d
ed- 1986). • ia.
19. "Before laws were made, there was no property; take away laws and -
property ceases." J. BENTHAM, THEORY OF LEGISLATION 113 (5th ed. 1887). ,1; , -_ - -*--7--7-.--:—.--.-:-.:.----.--"
The fact of possession existed before property laws, but this differs signifi-
'"i I
cantly from the legal right to property. Possession in fact—simple,deliberate ,,,
dominion and control —requires no legal imprimatur to exist, and considera- 4 t :
tions of public good or general welfare do not limit its existence. By the same ' .
token, however, the law does not protect absolutely the fact of possession. �' •-
Rather, possession is protected only conditionally, under those circumstances
provided by the law of property. • . '
Various other sources of property may be conceivable philosophically —
_ such as custom, sociobiology, or the divine — but law protects only the legal
rights of property.
20. The mere fact that an economic interest may be valuable does not t
make it a property right. "[N]ot all economic interests are 'property rights';
only those economic advantages are 'rights' which have the law back of them, •
and only when they are so recognized may courts compel others to forbear _
from interfering with them or to compensate for their invasion." United i'
States v. Willow River Power Co., 324 U.S. 499, 502-03 (1945). `
The Court in Willow River held that private riparian rights in navigable _i,,I;' _-..-:: :-.:---f'.-.:-...-:.-.:--
— streams are not co-extensive with the economic advantages of riparian owner- r
. -: 'i :
ship.Id. The owner's legally protected title is qualified by the paramount pub- �'..i�;: %:=f:_t:_.__-:; --• �-
lic interest, in this instance the public interest in navigation.Id- at 507. r =:
21. As Justice Holmes stated in Hudson County Water Co- v. McCarter, r { r` r _',•
— 209 U.S. 349 (1908): .:,," :._-= ;-_ _
.ri: I—
- h'
r
s y w.
. _
..
_._.•., . .. ... ....,,..„.„-,,
. . .• i
, ... ...
. .. . . . ...
• • . . . . ..
. . , . .. . ..
..,
........
.,_.
_, ,, :�'- - _:, sem",
346 MINNESOTA LAW REVIEW [Vol. 74"339
_ - and common law delimiters of private owners' autonomy, taken
•
••
- - together, are a social obligation of property that legally quali-
fies the private property right.22
To say that the law's protection of private property must
promote public ends certainly does not mean that property
• rights do not exist to serve private concerns. Sometimes — and
the domain of property is an archetypal instance — the public
interest can best be served only by advancing private interests.
•
This may occur because private economic pursuits tend to bene-
• fit the public secondarily,23 and it occurs whenever particular
kinds of private interest are so widely shared as to make them
prime objects of governmental protection.24 Indeed, to govern
All rights tend to declare themselves absolute to their logical ex-
treme. Yet all in fact are limited by the neighborhood of principles of
policy which are other than those on which the particular right is
- founded . . . .The limits set to property by other public interests pres-
ent themselves as a branch of what is called the police power of the
State. It sometimes is difficult to fix boundary stones between the
private right of property and the police power, . . . [b]ut it is recog-
nized that the State . . . has standing in the courts to protect the at-
mosphere, the water and the forests within its territory,irrespective of
the assent or dissent of the private owners of the land most immedi-
ately concerned.
Id at 355 (emphasis added).
22. "[Nil property in this country is held under the implied obligation
that the owner's use of it shall not be injurious to the community." Mugler v.
Kansas, 123 U.S. 623, 665 (1887) (citing Beer Co. v. Massachusetts, 97 U.S. 25,
32 (1877)).
"[I]n instances in which a state tribunal reasonably concluded that 'the
health, safety, morals, or general welfare would be promoted by prohibiting —
particular contemplated uses of land, this Court has upheld land-use regula-
tions that destroyed or adversely affect recognized real property interests."
Penn Central Transp. Co. v. New York City, 438 U.S. 104, 125 (1978).
The social obligation of property implicit in the United States Constitution —
is explicit in other constitutions, for example, the more recently written con-
stitution of the Federal Republic of Germany: "Property entails obligation.
Its use shall also serve the public good." GRUNDGESETZ [GG] (CONSTITU'T'ION)
(W.GER.),art. 14, § 2, translated and quoted in R.DOLZER, PROPERTY AND EN-
•
VIRONMENT, THE SOCIAL OBLIGATION INHERENT IN OWNERSHIP 17 (Interna-
tional Union for the Conservation of Nature Environmental Policy and Law
Paper No. 12, 1976).
For an excellent comprehensive review of the history and modern judicial _
recognition of the social obligation of property, see Anderson, Takings and Ex-
pectations: Toward a "Broader Vision"of Property Rights, 37 U. KAN.L. REQ•.
529, 531 (1989) (suggesting that "the expectations of all property owners must
include the element of public welfare")-
23. See Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 161 (1896) (ap- —
proving taxpayer subsidies to a private irrigation supply, reasoning that "to
bring into cultivation these large masses of otherwise worthless lands would
seem to be a public purpose . . . not confined to the landowners").
24. Cf. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922) (reason- —
^.sol- _
rl : } t -
- 1989] EXISTING-USE ZONING 347 ,. `• '----/.,:•-•`-•-:•-••!.n.-7..--::::'--*--..:-;._= _ '_ _ _ -
in the public interest — "adjustingthe benefits and burdens of i, _
economic life to promote the common good"25 — may precisely
mean to choose which private interests to favor.26 , 1
I
Judging from the near universality of private property ''
rights, it is safe to conclude that some extremely compelling
public interests are advanced by the creation and protection of ' { -
legal property. Foremost perhaps is the public interest in eco-
nomic efficiency. People more likely will sow when they are
-- assured that they can reap and enjoy the fruits of their efforts.
The alternative, true communal ownership, also has the disad-
vantage of providing an incentive to abuse resources.27 Finally,
= private property rights serve the important interest everyone
has in privacy itself, by providing an exclusive place of resort
for home and rest.
The public interests advanced by private property auton- �: ,
omy are not, however, the only legitimate public interests that -
should be served by government. The interests advanced by
owner autonomy are not even the only legitimate public inter-
- ests relating to privately held land. There is, for example, the lj i!interest shared by all in the appearance and character of our 'j
national landbase, in the quality of life that it can provide, and
- most importantly, in its abilityto sustain our
p".J population. The
social obligation of property promotes those public interests tl ..
that purely private rights cannot.28 `
Where the private autonomy of ownership would clash �`'
with the greater public good, that is where the private rights in [
ing that even though "[t]his is the case of a single private house . . . [n]o doubt -
- there is a public interest even in this"). {�t --
25. Penn Central, 438 U.S. at 124. `'
26. See, e.g., Miller v. Schoene, 276 U.S. 272, 279 (1929) (holding that "the rj .
state does not exceed its constitutional powers by deciding upon the destruc-
tion of one class of property in order to save another which,in the judgment of
i fit'
the legislature, is of greater value to the public"). (,I ,
27. Hardin's eloquent treatment of this problem probably is the most fa-
mous. Hardin, Tragedy of the Commons, 162 SCIENCE 1243 (1968). ,1; i28. Private allocations of property rights fail to addressproblems of eco- '' ;.
r
nomic externalities and "market failure" (due to high transactions costs) that
prevent many costs and benefits of economic choices from being accurately .k"
Property Rules, Liability Rules, and
weighed. See Calabresi & Melamud, F.
Ina-
lienability: One View of the Cathedral, 85 HARV. L. REV. 1089, 1106-15 (1972)
— (noting the need to qualify and supplement purely property entitlements with
liability rules and inalienabilityrules [non-tradeable 4 I!
government regulatory
protections] in order to achieve many societal goals); see also Hunter,An Eco- AI
logical Perspective on Property:A Call for Judicial Protection of the Public's ri f _
_ Interest in Environmentally Critical Resources, 12 HARV. ENVTL. L. REV. 311,
313 (1988) (arguing that the "external ecological effects private land-use deci- jh=--':-
sions can have" also must be considered in takings cases). ! ;;;;:
ii I+l�
Ili-.I 4 4r -
',1
-- .
I, �' Yom•�•ti.^: '.' _::
•
§.`.I • ' tt. •
< ur
Vis.•'-.�:r._ :-.` _ -- _�.;
348 MINNESOTA LAW REVIEW [Vol. 74:339
•
property come to an end and the social obligation of property
begins. Were it not for this public interest boundary on private
property rights, the laws created to protect property could be-
come powerful instruments to defeat public welfare. A govern-
ment empowered to act only in the public interest never could
have constitutionally conferred such an extensive measure of
property ownership.29
In the discussion that follows, the chief concern is the limi-
tations that the takings clause of the Constitution imposes on
the government's legislative power to contain and channel land
development. The interests that the takings clause protects are
legal rights in property.30 The axiom of discussion is that the
legal rights of property are bounded by the public interest.
EXISTING-USE ZONING AND LANDSCAPE
PRESERVATION
Even in regions of comparatively dense population, most
land could be used more intensively. Vestigial open space still
stretches between urban centers. True megalopolises, with sub-
urbs stretching end-to-end for hundreds of miles, may be
America's destiny, but that destiny is not here yet. If there is
29. It does not follow,of course, that the courts should perform reviews of -
property rights and strike down those found to be excessive. Ordinarily the
elected legislatures, or administrative bodies acting pursuant to legislative au-
thority, determine where and how to strike the balance between private and
public interests. Nevertheless, for constitutional purposes, the concept of -
property hardly can be deemed to include measures of private sovereignty that
should have been beyond the power of a public-interest government to confer
originally — even if judicial review is unavailable to attack the excesses af-
firmatively. -
In sum, legislative or judicial acts that curtail private advantages for the
public good should raise no questions under the takings clause if the law pur-
porting to confer the particular advantages would otherwise impermissibly
abridge the public interest. Laws beyond the scope of legislative power can
confer no private rights, so there is nothing to be taken.
30. For purposes of the fifth amendment, the definition of property "will
normally obtain its content by reference to local law." United States ex rel.
TVA v. Powelson, 319 U.S. 266, 279 (1943);see Oregon ex rel. State Land Bd. v.
Corvallis Sand & Gravel Co., 429 U.S. 363, 378 (1977) (applying local law rule -
to riparian lands); United States v. Fox, 94 U.S. 315, 320 (1876) (holding that
state law determines the validity of devise of real property); see also
PruneYard Shopping Center v.Robins,447 U.S. 74, 84 (1980) (stating that"nor
as a general proposition is the United States, as opposed to the several states, -
.r, possessed of residual authority that enables it to define 'property' in the first
• •- instance"). The Constitution itself neither creates nor defines the dimensions
of property interests. Board of Regents v. Roth, 408 U.S. 564, 577 (1972).
If the Constitution protects non-legal "rights" as property, the Supreme _
Court has been notably silent about it.
•
_ r5
_ --r.—. A60iEhVt#.i'ea✓'r. ili /
I.ii
111 -`:,:-:::--7-,.-:-.-'1-:.:-''.'''.-:-"..÷:.---
:iCtizTr• -
1989] EXISTING-USE ZONING 349
-
[
the will to do so, Americans still can preserve the essential
character of our communities, regions, and nation.31 i ,,1
Traditional zoning serves the goals of consolidating like r t
uses and separating incompatible uses, but zoning traditionally •, 'i
C'
has not been employed to channel development away from cer-
tain areas altogether. To save the familiar countryside and the ;
l
natural areas between developed centers, new building activity
must be directed away from the open terrain: It must be I
steered into, or next to, those places where development exists1., • '
•
already. Development never will be geographically contained, -
•
however, if we continue to rely on individual initiatives to de-
cide where our land is developed. If the trends to date are a i-
guide, random fragments of development eventually will crop
up almost everywhere unless something is done to keep our ,
_ larger open areas in their existing uses. :i
Zoning codes designed for cities and other developed cen- 1 --
ters are typically a complex of detailed use, minimum area, and j g
_ structural restrictions.32 Their complexity is necessary to ra- .- t'
tionalize development in locales that are accepted as being sub- '
N.
ject to dynamic land-use change. By contrast, existing-use
zoning can be as simple as a regulatory prescription that, /�
— within the existing-use zone, the lawful uses of each piece of - I,
•
land are the uses for which the parcel already is reasonably . ,
adapted. The place for existing-use zoning is not in cities but in
_ non-urbanized settings, where the planning objective is to avoid 1
dynamic changes in patterns of land use. Existing-use zoning is
suited, in other words, to those relatively undisturbed locales =-
31. The concern at hand is the mix between undeveloped and developed ,_.l
land, not other socio-economic characteristics of land use patterns such as the Mi
mix between rich and poor or the racial mix of land users. Traditional land {,.
use planning devices such as zoning have proven unfortunately effective in v~
— perpetuating racial, economic, or other invidious discrimination — for exam- .".,1
ple, by imposing large lot size requirements that allow some to enter while
creating prohibitive barriers to others. See Warth v. Seldin, 422 U.S. 490, 498- 4
501 (1974) (holding that non-residents lack standing to challenge such barn- J ;
— ers); F. POPPER, supra note 6, at 11 (noting that "many relatively wealthy
white suburban communities also used their zoning laws to keep out unwanted
minorities and the poor"). The problem of invidious discrimination ultimatelyiii
can be addressed only by appropriately prescribing what kinds of development _.
•
_ should occur in those areas selected for development (affordable housing, 1 �'
mixed income housing, or other options). This Article instead concerns the
means to enforce a governmental decision that any development at all is inap- �tii
propriate for some land areas, and accordingly development should be chan- .)
nelled to other areas better suited for growth. yI IIi
• — 32. See generally D. HAGMAN & J. JuERGENSMEYER, supra note 8, at 20, M _
39-88, 190-97 (discussing the history and future of zoning, sources of zoning
1 power, and the purposes and types of zoning). ) •.`.;
3
1;41;,
w
-,.:--::4:.•'-:-:-.:.-_-_. .:-_-,.. -
„ .t, 4�'.,,trE: . ., as t C� n Y Gr y -- ,,. �,^ v4
—
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350 MINNESOTA LAW REVIEW [Vol. 74:339
where the normal presumption runs against active modifica-
tions of land use anyway.
- Even admitting the possibilities for rezoning and variances,
existing-use zoning effectively shifts the burden of justification
when owners apply to modify the uses of their land. Existing-
use zoning places the burden on those who stand to profit by
imposing change rather than on those who wish to retain the
character and qualities of the land. This shift, in itself, is a ma-
jor advance over the traditional zoning approach that presup-
poses and, in effect, endorses development of all land in one
way or another. Existing-use zoning provides, in short, a mech-
anism to let communities keep what they have — both the pre-
vailing uses of private land and the character of its
surroundings.33 It promotes a new land ethic of stability in
land use patterns, except where changes in use would serve a
compelling public interest.34 –
33. Professor Lefcoe writes that even strict limitations on private develop-
ment rights do not: —
diminish the strength of private ownership. In removing the preroga-
tives from the land promoter and home builder, the law places new
rights in the hands of occupiers and homeowners. It favors the owner
who has made an investment in a building and, perhaps, a way of life,
—
over the real estate entrepreneur. By diminishing the right to de-
velop, the law enhances the right to present use and enjoyment.
Lefcoe, The Right to Develop Land: The German and Dutch Experience, 56 OR.
L. REV. 31, 32 (1977).
34. This comprehensive land use planning,necessary to preserve the over- —
all character of the country, is well known in Europe, which reached the stage
of dense population long before the United States. The Federal Republic of
Germany, for example, channels new construction and developments to ex-
isting intense-use areas or to lesser developed areas that are particularly suited —
for more intensive use. The state permits existing uses to continue indefi-
nitely on the remaining land, which constitutes the greater part of the coun-
try. Undeveloped land outside of designated Bauland (building-land) areas is
set aside to remain,more or less permanently,what it always has been—open _
space. Id. at 31-55; R. DOLZER,supra note 22, at 33-45.
Lefcoe noted while flying over Germany:
In corridors that could have been developed with thousands of one-
family houses, there is forest (almost invariably without the second
homes which mar Northern California) and farm land . . . . There are
no billboards even along the ribbons of the Autobahn. All of this has
been achieved with minimal public intervention because private land-
owners have no right to build in undeveloped areas.
Lefcoe,supra note 33, at 46.
In upholding the West German land use regulation program against con-
stitutional challenge, the German Constitutional Court wrote:
- We cannot agree with plaintiff's argument that the market for rural
land must be as free as the transfer of all other forms of'capital.' The _.
fact that the given soil is vital for society and cannot be enlarged does
. not allow entrusting its use to the incalculable market of free forces
:.:”•1�:<'�i
x f}
f
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t
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1989] EXISTING-USE ZONING 351 i:, �"-•", . :-,
Zoning for existing use supposes that such use generally is
suitable, and that, as a general matter, owners are not currently i. ' '
wastingthepotential of their land. In the open space areas that
existing-use zoning would preserve, existing legal uses might -
include agriculture, forestry, watershed, hunting, fishing, view- "'-:
shed, "buffer," and non-consumptive outdoor recreation. These
certainly are not economically wasteful uses: People have long i
sought to acquire and hold open lands precisely for these kinds
of beneficial use. Nevertheless, the potential that such uses
have for yielding a financial return can be far less than the fi-
nancial potential of uses that follow development. In exchange11
- for protecting the character of an owner's surroundings, ex- )
isting-use zoning takes away development rights.
TAKING DEVELOPMENT RIGHTS IS NOT
- IN ITSELF A "TAKING"
There may be "fundamental attributes of ownership"35
that government cannot take without paying just compensa- 11i,:
tion,38 but the right to develop land is not one of them.37 In i!'
il
and the complete discretion of the individual; a just legal and social t It
order leaves no choice but to assert the public interest in the land
more strongly than in other fields of property.
R. DOLZER,supra note 22, at 33 (translating and quoting the German Court). i.
35. Agins v. Tiburon, 447 U.S. 255, 262 (1980).
36. The right to exclude others is "universally held to be a fundamental �•
- element of the property right." Kaiser Aetna v. United States, 444 U.S. 164,
179-80 (1979) (describing the right to exclude others as "one of the most essen- r
tial sticks in the bundle of rights that are commonly characterized as prop-
erty");accord Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, J'.'i!
— 433-37 (1982). The state can cut down even the right to exclude others, how- �,
ever,to the extent that it is not"essential to the use or economic value"of the ;l,,;is
property. PruneYard Shopping Center v. Robins, 447 U.S. 74, 82-85 (1980);see 1
also Hodel v. Irving,481 U.S. 704,715 (1987) (holding that abolition of both the
— power to devise and possibility of descent is a "taking"). y,.ia
37. Indeed, at common law, the property owner had no absolute right to WPF;
develop land. Construction on non-fee interests was subject to the doctrine of 1. 1 ,
waste, including so-called ameliorative waste, which essentially prohibits life r"
and leasehold tenants from modifying the physical character of the reversion
or remainder. See 5 R. POWEL.L.,REAL PROPERTY§§56-3 to-8,-17 to-19 (1989).
Furthermore, all lands, fee and non-fee alike, were (and are) subject to the , Il ;
limitations of the common law of nuisance,which prohibits any otherwise law- i• i,
ful land use that substantially and unreasonably interferes with the reasonable �f
use of neighboring land. See 1 F. HARPER, F. JAs &O. GRAY, TORTS 76-119 3�`j.
(2d ed. 1986). Other lands, such as lands under boatable waters, were subject
to prohibitions on any improvement that impeded paccage of boats and vessels.
�l�
See Hargrave's Hale, De Jure Maris et Branchiorum E•usdem, ch. III, re- .�: - =-
gr .1 : ce_= '
.�.-.. _
— printed in S. MOORE, A HISTORY OF THE FORESHORE 374-75 (1888). _<<�_':
For a short history of Anglo-American land use regulation from the Nor- c •
man Conquest in 1066 until the early twentieth century, see Large, The -,A.,::!,...;:-:::'< ::'
•
i !-'•' L .:ice._2t J r f "7-7-7-44,740",,"1 rti
._.r. ;... • J, _ - a •
• �x.«
_�+4
352 MINNESOTA LAW REVIEW [Vol. 74:339
• Penn Central Transportation Co. v. New York City,38 the
Supreme Court made it clear that the Constitution permits tak-
ing development rights without compensation.39
•
• Penn Central posed the question whether New York City
Supreme Court and the Takings Clause: The Search for a Better Rule, 18
ENvri.. L. 3, 6-10 (1987) (noting that "despite occasional editorializing [to the
contrary] there has never been any absolute right of land ownership in any or-
ganized society"). For a comprehensive historical treatment of the same sub-
• ject, see F. BOSSELMAN, D. CALLIES & J. BANTA, supra note 14, at 51-138
(1973).
38. 438 U.S. 104 (1978).
39. The Court noted that, in any event, the owners exaggerated the im-
pact of the existing use regulation in Penn Central. Id. at 136 n.33. For one
thing, the owners might have succeeded in getting approval for some more
limited use than the one they had proposed. The landmarks statute in Penn
Central also provided that the development rights could be "transferred" to
other parcels, a sweetener that mitigated the financial burdens the law im-
posed. Neither of these points, however, appear to be essential to the Court's
decision. Id. at 136-37.
As a means of preserving open space, the transfer of development rights
(TDR) came under a major constitutional cloud in the subsequent case of Cali- _
fornia Coastal Comm'n v. Nollan, 483 U.S. 825 (1987). In Nollan the Supreme
Court considered whether applicants for a building permit could be constitu-
tionally required to convey a public easement over their land as a condition of
the permit. The Court held that a condition cannot be attached to the grant-
ing of a building permit "unless the permit condition serves the same govern-
mental purpose" as the ban on building without a permit. Id. at 837.
Prior to Nollan, it appeared possible to steer development from one area
to another by inducing landowners to "transfer" the development rights from
parcels to be kept "as is" to other parcels in "receiving" zones located else-
where. Under such a TDR program, government could, for example, give de-
velopers an incentive to buy up rural development rights by letting them build
more densely on their urban parcels than the zoning laws otherwise would al-
low. The question raised by Nollan is whether government can force develop- _
ers to transfer development rights before it will permit them to develop their
"receiving" land to the maximum possible legal density.
For TDR to work as a land preservation technique, the nominal zoning
density for the "receiving"parcels has to be substantially less than the govern-
ment really expects to permit. Otherwise, the government has nothing that it
can rationally "waive" as a bonus to developers who finance the purchase of
development rights on lands that the government wants to see preserved. In
Nollan, however,the Court specifically condemned such "leveraging of the po-
lice power [by] stringent land-use regulation which the State then waives to
accomplish other purposes. . . ." Id. at 837 n.5.
There must, in the words of Nollan, be an "essential nexus" between the
burden restrictions impose and the legitimate government purpose the restric-
tions are intended to advance. Id. at 837. That "essential nexus" is lacking in
TDR but is always present when existing-use zoning is employed to preserve
an area's traditional character. This is because existing-use zoning takes away
development rights from certain lands for the purpose of preserving the ex-
isting character of those same lands. By contrast, TDR takes away develop-
ment rights from certain lands for the purpose of preserving the existing
character of other lands.
•
r.^�
'-,, A. .,-tw▪ o ".'.
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1989] EXISTING-USE ZONING 353 ,1-11
- could validly apply its landmark preservation law to prohibit '
proposed further development of the site occupied by a desig- `.
rated "landmark" — Grand Central Terminal. In effect, the .
- Terminal site was zoned for existing use. The owner, however,
desired to construct a high-rise office tower in the airspace ?- i`.'- . •--_ -
above it. In upholding the city's power to prohibit the proposed -
development of the airspace, the Supreme Court noted that the
-
landmark preservation law "does not interfere in any way with (▪'
the present uses" of the land, even though it "restricted . . . the .
exploitation of property interests."40 The Court held that the .
landmark designation:
not only permits but contemplates that [the owners] may continue to
use the property precisely as it has been used for the past 65 years: as i
a railroad terminal containing office space and concessions. So the
— law does not interfere with what must be regarded as Penn CentraI''s -
primary expectation concerning the use of the parce1.41 E -
The Court deemed the longstanding use to be a reasonable use f _:
for constitutional purposes. . `;,
Recently, in Nollan v. California Coastal Commission,43
the Supreme Court again confirmed that government may take
development rights by regulation without paying compensation. Ill
- .
The Nollans, private owners, sought a permit to build on their a,,'
oceanfront land." The permitting authority was willing to 1,3!;!i .
grant the permit only on the condition that the Nollans grant `•:'i-' i
- an easement allowing the public to cross their land.45 The _; ,?
"
Court struck down the easement condition because the condi- I ',,-°,
tion did not advance the same governmental purpose as the
permit requirement. In its reasoning, however, the Court con-
firmed that, in pursuit of a legitimate public purpose,46 the =" -
i
40. Penn Central, 438 U.S. at 136 (emphasis added). i
— 41. Id (emphasis added) At another point, the Court similarly empha- -!I;;
sized that its holding was based on the owner's "present ability to use the Ter- III; .
minal for its intended purposes and in a gainful fashion." Id at 138 n.36. �
42. "[O]n this record," the Court stated, "we must regard the New York 1:' „s.
— City law as permitting Penn Central not only to profit from the Terminal but ii, .
also to obtain a `reasonable return'on its investment.”Id. at 136 (emphasis ad-
ded). Because the only "evidence" of the Terminal's profitability showed that `
the existing use was not profitable,id. at 119-20,the Supreme Court must have11 -
— deemed the landmarks law to allow a reasonable return based solely on the - -
fact that the law allowed the land to remain in its longstanding use.
43. 483 U.S. 825 (1987).
44. Id at 828. -
45. Id at 829. -
46. In Penn Central the owners did not deny that the city had a justifyingE,'�
public purpose for taking the development rights; namely that the "objective
of preserving structures and areas with special historic, architectural, or cul-
tural significance is an entirely permissible governmental goal." 438 U.S. at f;:
I iii'':: va:•;:_ --:-.1:-......v."1..-,..
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IJP , .•, _ 1T .-•'-�•Y_ :•_�'-
`:Sr:-..-Y',7-,.'F " -..se--::--; �: . - _-•
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RSV
354 MINNESOTA LAW REVIEW
_W% r ;z"� [Vol 74:339
•
state "unquestionably would be able to deny the Nollans their
[building] permit if their new house (alone or by reason of cu-
mulative impact produced in conjunction with other construc-
tion) would substantially impede these purposes."47 Despite
the economic importance of the right to develop land, the
Supreme Court in Nollan and Penn Central has left no doubt
• that a permanent restriction to existing uses is not per se a
compensable taking.
THE CONSTITUTIONAL RIGHT TO A PROFIT
Although Penn Central makes clear that there is no consti-
tutional right to develop land, the Supreme Court repeatedly
has asserted that a compensable taking would occur if land-use
regulations deny an owner "economically viable use."48 In a
129. The Court cited a number of cases in which it had recognized "that States
and cities may enact land-use restrictions or controls to enhance the quality of
life by preserving the character and desirable aesthetic features of a city." Id. -
47. Nollan, 483 U.S. at 837. The Court's one qualification was that the de-
nial could not "interfere so drastically with the Nol1ans' use of their property
as to constitute a taking" by virtue of its economic impact. Id. at 836. The eco-
nomic impact test to determine a taking is the topic of the remainder of this
Article.
48. A land-use regulation effects a taking if it "denies an owner economi-
cally viable use of his land." Agins v. City of Tiburon, 447 U.S. 255, 260 (1980).
In Penn Central, the Court said only that a use restriction on real property _
may "perhaps" constitute a taking "if it has an unduly harsh impact upon the
owner's use of the property." 438 U.S. at 127 (emphasis added). More re-
cently, however,the Court has referred to this "impact"factor in takings anal-
ysis by quoting the "denies . . . economically viable use" formulation of Agins.
See, e.g., Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 485
(1987) (rejecting claim that state statute requiring 50%of the coal beneath cer-
tain structures to remain underground effected a taking); Nollan, 483 U.S. at
834 (invalidating state's conditioning grant of building permit on property
owner's transferring beach access easement to the state, because the condition —
failed to further the same substantial government interest as the permit re-
quirement); Hodel v. Virginia Surface Mining and Reclamation Ass'n, 452 U.S.
264, 296 (1981) (reasoning that enactment of statute limiting surface coal min-
ing operations was not shown to "prevent beneficial use of coal-bearing
lands").
The Court in Agins presented a two-pronged test of regulatory takings.
See supra note 16. In addition to the "economically viable use" criterion, the
Court stated that a use-regulation results in a taking if it "does not substan-
tially advance legitimate state interests." Id. —
This Article focuses on the "economically viable use" prong of the Agins
two-pronged test. Only the value-diminishing aspect of use regulations has
• been problematic from a constitutional standpoint. No one seems to quarrel
with the proposition that "under our system of government, one of the state's —
primary ways of preserving the public weal is restricting the uses individuals
can make of their property." Keystone Bituminous, 480 U.S. at 491. See Sax,
Property Rights in the U.S. Supreme Court: A Status Report, 7 UCLA J.
-tr . • =
•• 1. ��-< r'Y� ..� �' ..moi \ !'" rt �-1 + r•. �•=>. �'x
• -?'ti 1 v .-.,r . • �: mo__�''=' •
r` rr�" c:- _^ f�!•z�c.� ±;�_y---.,� .a;:: �- ; rl:L .�� .:i - -4-._r _ _c•R•`!�.y:?' ��
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1989] EXISTING-USE ZONING 355 ��i c `
i •,....., til
parallel line of cases, the Court similarly has insisted that a reg- .�•; • :.; •-,:--------;-,-------:-:•:-.: •:- .-
ulation's "economic impact" and the extent of interference with
_ "investment-backed expectations" are factors having "particu- t:, 1 , K
lar significance" in takings analysis.49 Although the Court .
never has specified what it means by the concept of economi- t
cally viable use, it seems a fair surmise that it has something to ••
do with profit. Without at least a potential for profit, it is diffi- --':-:.--..-"•::_..---.--,
cult to imagine how a use can be considered "viable" in any -',------:-.:.:-•:-'''.:'.' :
y
normal economic sense. Thus, although owners do not have a
constitutional right to develop their land, the dicta suggest the
possibility of an even broader constitutional right — thet 1! .
to put property to profitable use.50it -
I
ENvm. L. & P0L'Y 139, 146 47 (1988) (stating that the Court "has in recent
years effectively approved a very broad range of permissible regulatory acts,as
long as they leave some economically viable use to the owner"). i',:, 'II
i
In Agins, for example, the unanimous Court commented approvingly on
local regulations designed to discourage the "premature and unnecessary con- ['r _ _
version of open-space land to urban uses." 447 U.S. at 261. "The specific zon- t! 1` - -
ing regulations at issue are exercises of the city's police power to protect [its] ,'
— residents . . . from the ill effects of urbanization. Such governmental purposes A I.
'
long have been recognized as legitimate." Id Among the public interest objec- 1.1
tives of the zoning provisions at issue were "protecting against . . air, noise
and water pollution, traffic congestion, destruction of scenic beauty, distur- ;'
bance of the ecology and environment, hazards to geology, fire and flood, and l
other demonstrated consequences of urban sprawl." Id at 261 n.8; see also I'
Penn Central, 438 U.S. at 129 (upholding "land-use restrictions or controls to I'
. i
'
enhance the quality of life by preserving the character and desirable aesthetic ; ., '
features of a city").
49. Penn Central, 438 U.S. at 124;see also Bowen v. Gilliard, 483 U.S. 587,
606 (1987) (upholding Aid to Families with Dependent Children requirement ;;4
that children's support payments be assigned to the state, as having, in reality,
no adverse economic impact on claimant's investment-backed expectations);
P
Hodel v. Irving, 481 U.S. 704, 713-14 (1987) (invalidating a provision of the In- 4 ';1 ---,-.7 -_ ..
dian Land Consolidation Act that abrogated an individual's rights to pass on
�;
property to heirs or devisees); Connolly v. Pension Benefit Guar. Corp., 475 i;'.I
U.S. 211, 224-25 (1986) (stating that statute requiring withdrawing employers
— to pay proportional share of plan's unfunded vested benefits was not a taking). I-III • -
50. The Court's dicta sometimes explicitly refer toprofit, suggesting, ,1�:
p ' y ggestin for �e;;
example, that a use regulation would effect a taking if the uses remaining to
the owner are not "gainful," Penn Central, 438 U.S. at 138 n.36, or "produc- I'
ll
— tive," United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 126 n.4 +
I 14i
(1985), or if they are "commercially impracticable . . . to continue." Keystone
Bituminous, 480 U.S. at 495-96. In Penn Central, the Court "regarded" the i i'
longstanding existing use as giving the owner the opportunity "not only to ` .-
profit from the Terminal but also to obtain a 'reasonable return' on its invest-
ment." 438 U.S. at 136; see also Loretto v. Teleprompter Manhattan CATV =
Corp.,458 U.S. 419,436(1982) (stating that"[a]lthough deprivation of the right
to use and obtain a profit from property is not, in every case, independently l Hi f,:_.-;• -• _
sufficient to establish a taking. . . it is clearly relevant" (noting Andrus v. Al- i
lard, 444 U.S. 51, 66 (1979)).
I • ��:_.i�.mss.:.
fLi * -.$3.•:r-`:----:-.._--.,,.---•--
1 :f,.- .
irr �
i --...i.'"-•_}...".="; -
•
-'
. 356 MINNESOTA LAW REVIEW [Vol. 74:339
�-;fit_
- • - The suggestion that there is a constitutional right to make
a profit from property traces back to Justice Holmes' famous
•
"advisory opinion"51 in Pennsylvania Coal Co. v. Mahon:
For practical purposes, the right to coal consists in the right to mine
it. What makes the right to mine coal valuable is that it can be exer-
cised with profit. To make it commercially impracticable to mine cer-
tain coal has very nearly the same effect for constitutional purposes
as appropriating or destroying it.52
Ever since Mahon the Supreme Court has nominally adhered to
its dictum that a use regulation can effect a taking if the cur-
tailment of use has an over-severe impact on the owner's eco-
nomic interest in the property. Rather than stress profits as
the sine qua non of "economically viable use," however, the
Court has said that the "interest in anticipated gains has tradi-
tionally been viewed as less compelling than other property-re-
lated interests."53 Rather than actually ever finding an
"economic impact" taking,54 moreover, the Court has hemmed
51. As the Court later called it in Keystone Bituminous, 480 U.S. at 484.
52. 260 U.S. 393, 414 (1922) (citation omitted) (emphasis added).
53. Andrus v. Allard, 444 U.S. 51, 66 (1979). The Court reversed the dis-
trict court's holding that a prohibition on commercial transactions in eagle
feathers was a taking because the prohibition wholly deprived the owners of
the opportunity to earn a profit from relics incorporating the feathers. The
Court suggested, highly conjecturally, that the owners "might exhibit the arti-
facts for an admissions charge." Id; accord Loretto, 458 U.S. at 436 (stating in
dicta that "deprivation of the right to use and obtain a profit from property is
not, in every case, independently sufficient to establish a taking").
In an analogous ratemaking context, the Court recently reiterated the —
rule allowing price control regulations to "limit stringently the return recov-
ered on investment,for investors' interests provide only one of the variables
in the constitutional calculus of reasonableness." FCC v. Florida Power Corp.,
480 U.S. 245,253 (1987) (emphasis added). Although imposing a "confiscatory" —
rate is a taking of property under the fifth amendment, the Court noted that
the affected owners "have not contended, nor could it be seriously argued, that
a rate providing for the recovery of fully allocated cost, including the actual
cost of capital,is confiscatory." Id. At least in the ratemaking context,owners
therefore clearly do not have any constitutional right to receive a profit over
and above their costs. Indeed, the Court has left open the question of whether
owners necessarily are entitled even to recover their costs.Id at 254 n.7.
54. Neither of the two "regulatory takings" found by the Supreme Court
to date were based on economic impact,both instead were based on the failure
of the governmental action to substantially further legitimate state interests.
Nollan v. California Coastal Comm'n, 438 U.S. 825, 837 (1987); Hodel v. Irving,
481 U.S. 704, 717-18 (1987);see supra note 46. Both of these cases probably are
• better understood as turning on an application of traditional "economic due —
process" analysis. See Humbach, supra note 16, at 341-47 (concluding that
"traditional economic due process review was at least part of what the
• Supreme Court was doing in several of its takings cases").
• ,v In Mahon, 260 U.S. at 414-16, the Supreme Court said that the use restric-
tion in question went so far as to constitute a"taking." The holding in Mahon,
•~�• %;!- �`-�r=' �4175;'�'
•
a• � �` y` Vic._ -.<: � ,...,.�;�•'ti .::'�=:_ 1 {: _
'a iL--„'.F.-?Far--'
liliti
' ;:i•-•''' : --,•'-'2:::.-::.-IZ..:.':-..-L-:..r--- . •:'.
- 1989] EXISTING-USE ZONING 357 T__% ;:-:.r
the economic impact test with a daunting arrayof limitations. 11. '
p g k. _.,..•.
One important limitation is the principle that a compensa- =rj _;
ble taking does not result merely because a use restriction "de-
prives a property owner of the most profitable use of his
property."55 Similarly, the fact that a regulation renders sub- ' ! _ : . i
stantial portions of a landholding useless will not establish a
taking as long as the property as a whole retains economically -
viable use.56 As the Court explained in Andrus v. Allard, "de-
— nial of one traditional property right does not always amount to ; 1'
a taking. At least where an owner possesses a full `bundle' of ; '
— however, was premised on economic due process analysis and not the takings '' ,
clause. Id at 413. The Court subsequently declared that the portion of the
Mahon opinion discussing the takings clause was merely an "advisory opin-
ion." Keystone Bituminous, 480 U.S. at 484. '
55. United States v. Central Eureka Mining Co., 357 U.S. 155, 168 (1958);
accord Andrus v. Allard, 444 U.S. 51, 66 (1979) (stating that denying property -.i 1
owners the most profitable use of their property is not "dispositive” in taking
cases); Penn Central Transp, Co. v. New York City, 438 U.S. 104, 136 (1978) 1
_ (reasoning that property owners still were able to obtain a"reasonable return" t
on their property); Goldblatt v. Town of Hempstead, 369 U.S. 590, 592 (1962) i , i-
(holding that "[i]f this ordinance is otherwise a valid exercise of the town's po-
lice powers, the fact that it deprives the property of its most beneficial use ` !i
does not render it unconstitutional");see also Pennell v. City of San Jose, 108 l!
— S. Ct.849,852-53 (1988) (refusing to rule a city rent control law facially invalid 11
on a takings clause claim). ;I l
Indeed, the quotation in the text severely understates the power of gov-
ernment to prohibit property uses without effecting a taking or raising a right
— to just compensation. The Court has used terms such as "complete destruc- , .i
tion," "wholly useless," and "nearly the same effect as the complete destruc-
tion of [the owner's] right" in describing the line between regulation and
taking. Penn Central, 438 U.S. at 127-28 (citing respectively Armstrong v. :;
— United States, 364 U.S. 40, 48 (1960), Hudson County Water Co. v. McCarter,
209 U.S. 349, 355 (1908), Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 414 '4 ` ,
(1922)). In a recent case upholding a right of compensation for temporary reg-
ulatory takings,Justice Rehnquist appeared to accept that, to constitute a tak-
_ ing, a regulation must deny the landowner "all use" of the property. First !,f
English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, ;'x'
321 (1987). 111,
56. Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 497-98 ,t';il4
•
•(1987) (holding that coal required by law to remain unmined did not "consti- .IL:
- tute a separate segment of property for takings law purposes");Penn Central, !;•,
438 U.S. at 130-31 (stating that "'[t]aking'jurisprudence does not divide a sin- ji`
gle parcel into discrete segments and attempt to determine whether rights in ani
particular segment have been entirely abrogated"); accord Gorieb v. Fox, 274 y;
U.S. 603, 608 (1927) (upholding set-back restrictions and stating that "zoning - . - -
laws prescribing . . . the height of buildings . . . and the extent of the area to be i; ij
left open for light and air . . . are, in their general scope, valid under the fed- I� : -
-
eral Constitution"); see also Deltona Corp. v. United States, 657 F.2d 1184, ��
1192-93 (Ct. Cl. 1981) (upholding use regulation prohibiting construction on : I .t
part of a parcel, even though the prohibition caused "some diminution in j
value" of owners' land),cert. denied, 455 U.S. 1017 (1982). I r - )'L--=.. �-.1=-- :.-
:-
litt r ., v -�•.
< „x^ t 1 rT 1 --'':...-----t-.- �.y,:
.•y y _
• • : feE1tYY- r- .
. 3t •
•
-'v.Imo?ti . -f:_--,--.:-.--__:-.-7,-......:----- _
--- _ :' T'� Tri+ :
i •
' •
1989] EXISTING.-USE 1 0...,63.:;.F::::•.:-...;:::••.::.::-.:••:•:••,-;•.......-'-:."'---1•::•:.••".•.--.••�•.._
EXIST ZONING 359 ;F :•,
_ ! art iy
burden F•
"61 to prove a negative that has evolved into a limitation '`
of practically insurmountable proportions.
In view of these limitations, the Supreme Court is not , -
likely to hold that a land use regulation is a taking on economic -
y'
impact grounds except, in its words, "under extreme circum_ ": =
stances."fi2 Laws to preserve open space and natural areas,
however, can present the "economic impact" issue in a new and
significantly more extreme regulatory context than most land
use regulations of the past.63 ••
•
property owners had failed to apply for zoning variance); Hodel v. Virginia f
Surface Mining & Reclamation Ass'n, 452 U.S. 26.4, 294-98 (1981) (reasoning ;i
that "constitutionality of statutes ought not be decided except in actual factual f e,
setting that makes such a decision necessary").
i"
61. Keystone Bituminous, 480 U.S. at 493. i,- -
62. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 126
(1985).
1-
63. Regulations prohibiting the filling of wetlands, for example, have met .
with a mixed reception. Compare Dooley v. Town Plan & Zoning Comm'n,
151 Conn. 304, 311, 197 A.2d 770, 773 (1964) (stating that "change of zone to �.
flood plain district froze the area into a practically unusable state"); State v. .
— Johnson, 265 A.2d 711, 716 (Me. 1970) (holding that restriction on filling wet- 7 •�.'
lands deprived landowners of"reasonable use of their property");Morris Land ,''
Improvement Co. v. Parsippany-Troy Hills, 40 N.J. 539, 557-58, 193 A.2d 232, It,
243 (1963) (noting that land use was "rendered practically impossible by the 11l
almost prohibitory filling and removal regulations") �'
with Graham v. Estuary
Properties, Inc., 399 So. 2d 1374, 1382 (Fla.) (upholding denial of development
permits on the ground that property owner's development "would result in an I
adverse impact on the surrounding area"), cert. denied, 454 U.S. 1083 (1981); -- _
Just v. Marinette County, 56 Wis. 2d 7, 17-18, 201 N.W.2d 761, 768 (1972) (stat- -'
ing that "an owner of land has no absolute and unlimited right to change the
essential natural character of his land"). ! _
Justice Brennan expressed considerable doubt about the constitutionality1
•
of preserving open space and scenic vistas by regulation, without compensa- .
tion, in his diccenting opinion in San Diego Gas & Elec. Co. v. San Diego, 450
U.S. 621 (1981) (Brennan, J., dissenting): 1..1 '
From the property owner's point of view, it may matter little whether � 1i :
his land is condemned or flooded,or whether it is restricted 1a ~, : -
i
tion to use in its natural state, if the effect in both cases is to deprive
him of all beneficial use of it. . _ . It is only logical, then, that govern-
ment action other than acquisition of title, occupancy, or physical in-
vasion can be a "taking," and therefore a de facto exercise of the
power of eminent domain, where the effects completely deprive the
owner of all or most of his interest in the property. ;;•,e:' :--
yt-
Id at 652-53 (emphasis added). - _
Notably, however, Justice Brennan used words suggesting ' J
that, to consti- '„t.
tute a taking, the impingement of the regulation must leave no use, or virtu-
] ally no use, whatsoever. Id (requiring that regulation ` i '-”`=�-�-'- =-'
1 9 g must "deprive [the ,..� • i :�:.'-: :,;-. . -:; ..
1 owner] of all beneficial use" and "completely deprive the owner of all or most a I .
i ::_s_
of his interest")_ Similarly, Justice Rehnquist recently described inverse con-
demnation of property by referring to government acts that "destroy its value
entirely." First English Evangelical Lutheran Church v. County of Los Ange ;-•:---:-..44.:•.:- .-:-:,:::::•••-•-.--:;-••••::.--,.-
,: we
t�.:
1 tea'. rYh; -N' ._ fir._.- ��- z ry .;
-'-_-_.'4.s..:
360 MINNESOTA LAW REVIEW [Vol. 74:339
Land use regulations prior to the 1970s primarily consisted
of zoning and subdivision controls that accepted the premise
that regulated land should be legally available for development
in some manner or another.64 In contrast, a comprehensive
plan designed to balance open space with more intensive uses,
and to steer new development exclusively to designated build-
ing areas, would do much more. The whole idea of balance is to
preserve a line between urban and non-urban, to keep develop-
ment from polka-dotting the entire landscape. A balance can
be achieved only if the natural, open space, or even wilderness
characteristics of the countryside can be retained. For a com-
prehensive plan to preserve appreciable blocks of open land, -
the property of many owners must remain "as is."
As Penn Central demonstrates, profit and preservation are
not per se incompatible. As long as the land can provide the
owner with a "gainful" economic return in its existing use,65
Supreme Court precedent permits regulations that prohibit
owners from enlarging the existing intensity of use. Regula-
tions that keep land in such traditionally gainful uses as farm-
ing, ranching, or forestry, therefore, should easily withstand
challenge under the takings clause. The fact that the owner
could make a greater profit in a more developed use is, in the -
words of the Court, "not dispositive."66
Although Penn Central held that the land's existing use
was a constitutionally sufficient use, the existing use in ques-
tion was, to be sure, the owner's "primary expectation concern-
ing the use of the parcel."67 The more difficult rase, not yet
squarely faced by the Court, would be posed by the owner who
buys with no desire whatever to maintain the existing uses of -
the land — whose interest in the land is solely as a develop-
ment site.
PERMISSIBLE LIMITATIONS ON LAND USE AND THE
MARKET "RATCHET"
The pattern is becoming familiar: A speculator buys a
les, 482 U.S. 304, 316-17 (1987) (quoting Pumpelly v. Green Bay Co., 80 U.S. (13
Wall.) 166, 177-78 (1871) (emphasis added)). —
64. See F. ANDERSON, D. MANDELKER &. A. TARLOCK, ENVIRONMENTAL
PROTECTION 795-96 (1984) (noting that increases in land use densities once
were seen as inevitable and desirable).
65. See supra note 50.
66. Andrus v. Allard, 444 U.S. 51, 66 (1979). —
67. Penn Central Transp. Co. v. New York City, 438 U.S. 104, 135-36
(1978) (emphasis added).
--.- Ula-747w�.t .1.
` ,L-, -7 4 .
S
1I1 51 '._r_ ,Rr:, -_ t e
1 tri` :�: -
1989] EXISTING-USE ZONING 361 �;'T.
piece of undeveloped land —for example, a legally protected
wetland. The purchase price far exceeds the value of the land ( I
in its current and historic use. Rather, it reflects the worth of •• •
_ the land as a potential development site.68 The buyer applies !; _--_ -
for the permits required in order to fill the wetland and build, = -
and perhaps for rezoning or a variance from current land-use 1. -_ - -
restrictions. Because the buyer paid an elevated price, the land
cannot possibly provide a reasonable financial return in its II'
natural wetland condition. Stressing this, the buyer argues 4�
that denying the permits would be a "taking."69 If the govern- '
— ment wants to preserve the wetland, the argument goes, it can
do so, but only if it is willing to purchase the land at the price €
the land can command as a development site.7° j;'.
_ Lands that owners have been content to hold as natural or
open space for decades now are being sold at prices several _
times their value in their existing or historic uses. Open s-i
71
- ;i
i 68. Although the selling price of such land presumably would be less than
the land's value as an already approved development site, market bidding for
prized development locations easily could cause the selling price to reflect at I
least part of the anticipated development site value.
— 69. See, e.g., Loveladies Harbor, Inc. v. United States, 15 Cl. Ct.381,383-84 ,
(1988) (involving plaintiff's taking claim based on denial of permit to develop
wetlands, thus substantially decreasing the value of the property). The plan-
ning board, zoning appeals board,or other governmental decision-making body !f•
— may be strongly disinclined to approve the development. The developer can f;I
sue for money damages, however, and even impose personal liability on the I`::
government officials who deny the permits if the court later holds such denial _
•
to be unlawful. See, e.g., A.A. Profiles, Inc. v. City of Ft. Lauderdale, 850 F.2d -
-
1483, 1488 (11th Cir. 1988) (awarding property owner damages when zoning '.,' ::-:.;- :__.____,,._:_ :_;_:.::...--_-:•:-
measures were deemed "confiscatory"). This puts the balance of power heav-
ily on the side of the developer. See Canan &Pring,Studying Strategic Law-
suits Against Public Participation: Mixing Quantitative and Qualitative -f - . .
Approaches,22 LAw&SoC'Y REV.385,385 (1988) (discussing"social,legal, and :
political impacts of multimillion dollar lawsuits filed against citizens or groups :;
for advocating a viewpoint on a public issue in a governmental decisional pro- .14
cess")- Canan & Pring, Strategic Lawsuits Against Public Participation, 35 i'V1 •
SOC. PROBS. 506, 506 (1988) (noting attempts to use civil tort action to stifle
— political expression and how such lawsuits affect political values and participa- f
tion in American society). - •
The balance of power can have a strong influence in outcomes. Because a i.;tI
recovery of damages by the developer could be a personal catastrophe for local --
- officials, the tilt presumably favors development in all cases falling in the ar-
guable or "borderline" category. j;t i ' -'
70. The root of this argument is the famous broad dictum of Pennsylvania I'I j -
Coal Co. v. Mahon, 260 U.S. 393 (1922). The Court stated: "[A] strong public i
desire to improve the public condition is not enough to warrant achieving the 1 `:-
desire by a shorter cut than the constitutional way of paying for the change." 1 { ..:132:-7.,,-:-',y
Idat416. aI7J :
71. See, e.g., GOVERNORS TASK FORCE ON NORTHERN FOREST LANDS AND . !t --
— USDA FOREST SERV., NORTHERN FOREST LANDS STUDY REPORT 9 (Draft of
I
0 Y _
11::31
_ •
-
•
•
362 MINNESOTA LAW REVIEW [Vol. 74:339
space or "raw" land can command high prices because buyers
are willing to pay not merely for the land's present adaptations
for use, but also for its development potential. The market
value of land can have, in other words, two distinct compo-
nents: the basic existing-use value and a development-site pre-
mium.72 As buyers speculate on development potential, the
market value of open land escalates.73
Regulations designed to preserve the existing character of
land will tend, if anything, to deflate land prices. These
regulations strip the land of its speculative value based on de-
velopment potential. For long-term owners, the effect of pres-
ervation regulations is to reduce the opportunity to make a
speculative profit. For more recent buyers, those who paid the
escalated prices, use regulations may even cause a substantial
capital loss. Either way, the economic impact can be
dramatic.74
Oct. 5, 1989), writing of the development threats to the 26 million acres of for-
est running across the northern tier of Maine, New Hampshire, New York, —
and Vermont:
[T]he market value of forest land for recreation and development con-
tinues to rise, in some places far exceeding the value of the land for
timber production. . . . Buyers are willing to pay prices many times —
higher than the value of the land for growing timber. Lakeshore,
river frontage, scenic ridges, and land with access to major highways
command the highest prices and are in greatest demand. . . . As
timberland owners respond to changing economic conditions, tracts of
land that are more valuable for uses other than timber production are
being sold to people with different interests.
• 72. Only the existing-use value represents the social opportunity cost of
developing land for a new and different use and,in a perfect market,no devel-
oper should have to pay more than this existing-use value. Nevertheless, be-
cause parcels of land are not fungible or movable, land markets probably
never can operate so "perfectly" as to prevent the occurrence of development
site premiums. In any case,it is a familiar phenomenon that lands that appear
to be good prospects for near-term development tend to be priced higher than _
the values they would have based solely on their existing uses. Development
site premiums thus probably are the norm for development site lands. See
generally A. SCHMID, CONVERTING LAND FROM RURAL TO URBAN USE §§II-III,
at 24-34 (1968) (discussing development site prices in rural development).
The NORTHERN FOREST LANDS STUDY REPORT, supra note 71, at 22, pro-
• vides a dramatic example:
[A large real estate corporation] bought forest land with no lakeshore
• • or water access for$100 per acre. [The corporation] then subdivided it
• and marketed it as vacation property for more than $300 per acre. . . . —
• The change in the market value was not accompanied by any change
other than subdivision.
73. NORTHERN FOREST LANDS STUDY REPORT,supra note 71, at 22.
74. The economic impact of existing-use zoning can be dramatic, but it —
also can be exaggerated. Exaggeration is particularly likely if prices from a
-i• few actual sales for development are simply extrapolated to all comparable un-
jam:"
v
i',...-.1 -
r . I11
-
1989] EXISTING USE ZONING 363 ' '%- ° Y1` -' -- ='- ` t-� = .
– Apart from their dampening effect on speculative prices,
however, preservation regulations effect no real change. In- -
deed, real change is precisely what such use regulations are in- : k
tended to prevent. They leave the land's existing-use value
intact because the land can continue to provide exactly the i =-
same benefits after the adoption of the regulations as before. _
Even so, the benefits from the existing uses may seem economi-
- cally inadequate if the owner paid — or could have exacted— aI .
development site price for the land. The critical question is I
whether, by eliminating speculative values, preservation regu •
-
_ lations constitute a compensable "taking." '�
As we have seen, a mere reduction of land value, specula-
tive or otherwise, does not constitute a taking;75 the regulation _
developed lands in the geographic market. Such a global extrapolation would . __
be valid only if, in the particular geographic market, there are buyers who are •
----, •--
ready
ready to purchase all the comparable undeveloped lands at development site
- prices at once—a most unlikely situation.
Where open country is being converted to developed uses at a rate of a �'
.:ill
few percent per year, it could take decades for all the open space to actually 1:j-
yield its potential development site value. For most parcels,the high improba- i:'.
- bility of immediate development means that the present development-site
value is far less than the potential development-site value. To obtain the true
present value, it is necessary to discount the potential development-site value
by a factor that takes full account of the probable delay in actually realizing
— on the potential. Cf Treas. Reg. § 1.170A-14(h)(3)(ii) (1989) (stating that a I'r
valuation of development rights "must take into account . . . an objective as- I !
sessment of how immediate or remote the likelihood is that the property . . . h
would in fact be developed").
Consider, for example, a relatively fast growing county at an urban edge -
in which farm acres are being subdivided and developed at a (fairly high) rate
of 2%per year. Even if some farms in the county are being sold to developers
at 500%of their agricultural values, any given farmer would have, on average, •:-.r1: ..
only a 2%probability of collecting that 500% "value" in any given year. Based
on these numbers, existing-use zoning would cause only an average 10% dirni- -
nution of the true present values of the developable farm lands in the market - .
area (2% x 500% = 10%). • Ii, is '
By taking proper account of the market's limited absorption capabilities, 1!'!0
io
- the real economic impact of existing-use zoning turns out on average to be ..
only a few percentage points of value. Isolated parcels may sustain demonstra-
bly greater losses in value —for example, parcels that are already under con- .I. '"h _
tract to sell at development site prices. The impacts on these parcels would be
offset, however, by even greater discounting on other parcels whose selection j. .
by the market lottery is even further deferred. See Akers v. Commissioner, E; - .
799 F.2d 243, 245 (6th Cir. 1986) (analogizing the comparison between potential -
development value and actual realized development value as "the difference !11
— between the worth of a gravid or potentially gravid sow and the postpartum
worth of a sow-cum-shoats"). ' i !
75. "The decisions," according to the Supreme Court, "uniformly reject f
the proposition that diminution in property value, standingalone, can estab == = ' :J''-
li . -1. '-'2;-...'14+:-.-:,.:--..-:,:-:---;,-!,..- ..-...---.--,"----
' ir_.
kid'I
1 ,
1.41 w:xy:
Yi s
{•�..“4.4 '�``_y' 3'~lam.
`-,'0.-..:••.!:":"‘:•::-:•.....":-:7'1`7-_:1_,.
- =▪ :' - % - 364 MINNESOTA LAW REVIEW [Vol. 74:339
must deny an owner "economically viable use” of the land.76
- _▪ • Although the concept of economically viable use frequently has
• been cited as a criterion of "taking,"77 the Supreme Court
never has equated it with financial profitability as such. There
is good reason for avoiding any such equation, and that reason
is plain enough: Whether a particular remunerative use of land
is financially profitable depends on how much the owner has
paid for the land.78
Even land in its natural state can provide a respectable fi-
lish a 'taking.'" Penn Central Tramp. Co. v. New York City, 438 U.S. 104, 131
(1978).
The Court reasoned:
[I]mpairment of the market value of real property incident to other-
wise legitimate government action ordinarily does not result in a tak-
ing. At least in the absence of an interference with an owner's legal
right to dispose of his land, even a substantial reduction of the attrac-
tiveness of the property to potential purchasers does not entitle the
owner to compensation under the Fifth Amendment.
Kirby Forest Indus., Inc. v. United States, 467 U.S. 1, 15 (1984) (citations omit-
ted);see also Pennsylvania Coal Co. v. Mahon,260 U.S. 393, 413 (1922) (stating
that"government could hardly go on if to some extent values incident to prop-
erty could not be diminished without paying for every such change in the gen-
eral law").
Even while vigorously urging (in a dissenting opinion) a comparatively
larger protection of private property rights, Justice Rehnquist accepted that
there would be no taking if the regulations merely made the property in ques- _
tion "'of little value' but did not completely extinguish the value." Keystone
Bituminous Coal Ass'n v. DeBenedictis, 480 U.S.470, 513-14 (1987) (Rehnquist,
J., dissenting).
76. See supra notes 48-49 and accompanying text. _
77. See supra note 48.
78. Profitability is, in other words, a relative concept, with profit depend-
ing on the relationship between the amount of return and the amount of in-
vestment. The Supreme Court has recognized that, for purposes of takings
clause analysis, it is hopelessly circular to establish the value of a regulated
asset by simply capitalizing the asset's projected returns when the very issue
at hand is determining a fair return. Duquesne Light Co.v. Barasch, 109 S. Ct.
609, 616 n.5 (1989) (reasoning that "capital assets [could not] be valued by the
stream of income they produced because setting that stream of income was the —
very object of the rate proceeding").
Even when owners receive more cash back than they put in, there still
may not be an economic "profit." The return must exceed the amount needed
for amortization of invested capital. This further return must equal at least
the amount the owner could have received from the next best alternative use
of the capital invested, or there still is no economic profit on the deal. An as-
set that does not depreciate in value, like land, presents a special case. There
is no amortization of the investment. In the case of non-depreciable land,
therefore, economic profitability wholly depends on there being a net return
in excess of the "opportunity cost," the amount that could have been received
from the next best alternative use of the capital. See generally R. POSNER,
:F supra note 17, § 1.1, at 9 (stating that economic rent is the"difference between
total revenues and total opportunity costs").
-▪ --- .rte '-4:-.., �•
•• 9 _
•
_ �• - = .:• ��' � �~ : "'' syef,-. .1 ,i-k-, '-'4:�. � _--cam ti' r r1.r!�. "'': "a ._-
-
_ v. '.-a4: f *' - ;4..:5_ Ln.4rJ‘ r- tt• :i.
Y . et - =
a'� •"
,s. ,, 3y „f.nyVi,-'
i '!
1989] EXISTING-USE ZONING 365 • ' [ _:-..,,......"!--•:,,-..,:.-.,.,--,amu=`.
nancial return, provided the owner has not paid too much for it.
Typical open space uses for which people often pay handsomely
include hunting, fishing, grazing, forestry, buffer, or aesthetic I;'
enjoyment. Only when woodlands or wetlands are sold at 4
building lot prices do these natural uses seem trivial. It could
not follow, however, that a buyer has a constitutional right to "
use raw land as a building site just because the buyer was will- ..:,::_-::::.:_-_:•-_-_:.;.."--.-",.- - " "
ing to pay "too much." If that were the rule then the mere bid-
- ding up of sales prices in the market would ratchet up the 0;
constitutionally guaranteed uses of land. The government's 'I "
power to regulate would be, in effect, at the mercy of private f
market transactions. •q
i
•
{,
EXISTING USE VS. POTENTIAL USE — "INVESTMENT-
= BACKED EXPECTATIONS" ! ''
In assessing the impact of a land use restriction there is a H --�!! .: _ -
fundamental difference between existing use and potential fu- I -
ture use.79 Existing uses of land provide definite, physical bases '. R
for specific expectations about the stream of future benefits a '' ,1-
parcel of land can produce. Potential use is an abstraction, an
11' :
image in the mind of the land entrepreneur. I :rs
Although conjectures about potential use exist only in peo-
ple's minds, such conjectures can have appreciable effects on
market prices. If land entrepreneurs guess that, by adding capi- ; III
– tal and labor a arcel's ro'ected stream of returns can be en- -.p p J . "
larged, the parcel's market price may include a development `;
site premium over and above the land's existing-use value. This _
_ speculative premium, however, is something very different
from the value attributable to the parcel's existing uses. It is, • " _
bluntly, the difference between an investment and a bet.
it'
There is solid ground for concluding that there is a.consti- l;
tutional difference between an investment and a bet. As the 1t
Court has said in Penn Central and repeatedly since, the prop- -
erty expectations that the takings clause protects from extreme Al
– economic impacts are "reasonable" or "distinct investment- r
backed expectations."80 The Court has been willing to give a
fairly wide scope to the concept of "investment,"81 but it never ; US "-
t
79. See Penn Central, 438 U.S. at 136, 138 n.36.
80. Id at 124;see supra note 58 and accompanying text. 1"
81. See, e.g., Hodel v. Irving, 481 U.S. 704, 715 (1987) (defining the concept ��l1: -
F,i, .
— of investment to possibly include the exchange made by the ancestors of the _ =
modern Sioux peoples in "ceding" large parts of the original Great Sioux = :"''
Reservation).
i1 k. ..z-- -41,-gi ....:67-::::".:...11:-:.:
—
i'll'
" +'V: ..
-- _-_ 14 - --
Sc^- - J}J;;r
. • - v. ... -• .:
•ti
•
is
-,�7� sWR ;�YZ •• jtiHn
' R ':�'�.__�,;nom'.rte'•
`" ' 366 MINNESOTA LAW REVIEW [Vol. 74:339
- has even hinted that the concept might include a speculator's
• j t4-
gamble that development could enlarge a currently projected
'• '-c stream of returns.82 In other words, it is one thing to say that a
;`t•= taking occurs when a regulation totally destroys existing land
• ''< uses. It is, however, something else again to conclude that com-
pensation is required when a regulation takes nothing except a
hope or expectancy about possible uses in the future.
•
The purpose of the takings clause, as the Court has often
said, is "to bar Government from forcing some people alone to
bear public burdens which, in all fairness and justice, should be
borne by the public as a whole."83 To apply this principle to
particular cases "necessarily requires a weighing of private and
public interests."84 A private owner's interest in keeping some-
thing that exists in physical reality presents a far more obvious
• case for constitutional protection as "property" than the private
interest in mere hopes.
Although speculators should not be treated arbitrarily,85 it
certainly does not follow that the takings clause should guaran-
tee their bets. A buyer may pay an elevated price with a view
to getting certain use restrictions relaxed, but it hardly can be
• harsh for the government to retain the restrictions in force.
•
That was precisely the risk the buyer took.86 The Constitution
82. The lower court cases since Penn Central generally support the view
that the "investment-backed expectations" factor excludes speculative aspira-
tions from takings clause protection. For a careful review and discussion, see
Mandelker, supra note 58, at 29-37. One exception is Loveladies Harbor, Inc.
v. United States, 15 Cl. Ct. 381 (1988), in which the court observed, without
discussion, that "plaintiffs' reasonable, investment-backed expectations have• _
• been frustrated. Plaintiffs intended to purchase the land for development or
at least for resale." Id. at 396.
83. Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 227 (1986)
(quoting Armstrong v. United States, 364 U.S. 40, 49 (1960)); see also Agins v.
Tiburon, 447 U.S. 255, 260-61 (1980) (stating that a taking requires a "determi-
• nation that the public at large rather than a single owner, must bear the bur-
den of an exercise of state power in the public interest").
84. Agins, 447 U.S. at 261.
85. If, for example, the government takes a piece of raw land by eminent —
domain, and the market value of the land reflects its potential for develop-
•
ment, the government must pay that market value. See Kirby Forest Indus.,
• Inc.v.United States,467 U.S. 1; 10 (1984) (stating that the measure of recovery
is the cash price a willing buyer would pay to a willing seller at the time of the —
taking). In other words, the law protects a speculator's interest in a property's
~' - potential just as fully as it protects a user's interest in what his property is—
: ' once it has been determined that the property itself has been taken.
• ` - 86. In Nollan, Justice Scalia suggested that if imposition of a particular
land use restriction would be invalid as against an existing owner, it likewise
would have to be invalid against a later buyer. 483 U.S. 825,833 n.2 (1987). He
,tr reasoned that "the prior owners must be understood to have transferred their
t r 1..t1 C
•
•
•
itis � — -.
.t r,:i:•-:;.7.;-4„,.-:=:-.-....•,-, :,. .,,...:,...-....r_ ....-
, a
- i. Mrs -v ,,•r
l
1 , . ,5
1989] EXISTING-USE ZONING 367 ;•t:' I ��
-
- should not guarantee that the speculator will win the bet. ''
The takings clause similarly does not prevent the gov- 1. � ^'
ernment from enacting new restrictions that apply to land al- li
_ ready purchased by a developer. Even though such after-the- ' rf{ -_= -
purchase restrictions may be onerous on the buyer whose in- _
tended use is foreclosed, the government's power to regulate
cannot be cut down by purely private transactions.87 If it were
otherwise, zoning codes never could have been constitutionally v
imposed in the first place, current zoning could never be tight- -
ened, and Euclid v. Ambler Realty Co.88 would no longer be ' I -
good law.89 !
Whenever a buyer pays a premium over and above the .
land's existing-use value, the buyer takes a calculated gamble i f
— a gamble that the planned change in use can be profitably
accomplished. Part of that gamble is the inherent risk that the
government may tighten the applicable regulations. As the I !
Supreme Court said: "Those whobusiness in t
has do he regu •-
lated field cannot object if the legislative scheme is buttressed ; '` I
by subsequent amendments to achieve the legislative end."90 I
The Court has found it particularly reasonable to expect reg-u- ''f,
latory change in a field of business that "has long been the ` �,, ,
source of public concern and the subject of government I':°' .
regulation."91 ? '
_ Land development is an increasingly regulated field, and
every competent developer knows that the trend is toward ever _ . - ::
greater refinement of land use controls. When land is acquired
,Ip
full property rights in conveying"the affected land. Id at 833. Justice Scalia's j:'; • - - -
assumption is perfectly reasonable if the restriction in question was invalid at
the time of transfer. The example in the text,however,concerns a buyer hop ,� 1 '
ing to obtain relaxation of a valid use-restriction.
— 87. Justice Holmes said it best: "One whose rights, such as they are, are I
subject to state restriction, cannot remove them from the power of the State 1it
by making a contract about them. The contract will carry with it the infirmity 0 I'
of the subject matter." Hudson County Water Co. v. McCarter, 209 U.S. 349, 11! /C,
— 357 (1908); accord Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S.
470, 502-06 (1987) (rejecting claim that statute impairs property owners' con- y
tract with surface owners to waive liability for surface damage). ; I '
11
88. 272 U.S. 365 (1926). This is the landmark case upholding the constitu- �a
- tionality of traditional zoning regulations.
89. As the Supreme Court expressed this point: "[Tihe submicsion that —
[owners] may establish a 'taking' simply by showing that they have been de- ' _ -- =
Hied the ability to exploit a property interest that they heretofore had believed
was available for development is quite simply untenable." Penn Central
Transp. Co.v. New York City, 438 U.S. 104, 130 (1978). `- : .
90. Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 227 (1986)
(quoting FHA v. The Darlington, Inc., 358 U.S. 84, 91 (1958)). ` .;.vx: ;:;•
91. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1007 (1984). .II - 1,-;-..,.-„:-;-:::::--....:::-.::::-..-- -
lit - � yT �st�--'�.C�':tr5,
1—
I -{ r11
; 'N -_ -- -
^_�ci.. .'t-c-`.• `•'moi.�«s�••-. '1
•
G :: :Ar.i
•
_`zµ7? _: :.�_: ;�- 368 MINNESOTA LAW REVIEW [Vol. 74:339
for development, the buyer takes a known risk92 —particularly
. r if the interval between purchase and actual development is
• = many months or even years.93 An expectation that there will
be no regulatory change in the interim simply is not a reason-
able expectation, "investment-backed" or otherwise.94 Until
• {"' land actually has been adapted to a potential use, any premium
paid by a buyer in anticipation of that use is not so much an
investment in "property" as an investment in hope — a "unilat-
-
eral expectation"95 that the land's stream of earnings can be
enhanced.
In summary, land use regulations can affect market values
•
• in two distinct ways: by limiting or prohibiting existing uses
and by cancelling hopes and conjectures about potential for
change. When a regulation bans the existing use of land, it sev-
ers an existing flow of benefits; it legally annihilates an ex-
- isting state of fact. Because the advantage of the asset is
• _ functionally destroyed, "property" is taken. A regulation that
merely prohibits development, by contrast, takes away at most
only a hope or expectancy. The benefit-producing asset is left
intact. Although a unilateral aspiration may no longer exist,
the "property" remains.
The distinction between existing-use and potential-use val-
ues is implicit in the "reasonable investment-backed expecta-
tions" factor of the Supreme Court's "takings" analysis. It
- - - ' - supports the owner's quite normal and reasonable expectation
92. A buyer of riparian lands similarly takes the risk that the government
will exercise the navigation servitude to his or her detriment. See, e.g., United
. • States v. Willow River Power Co.,324 U.S. 499,511 (1945) (recognising no corn-
•
pensable property interest in high-water level of river subject to federal gov-
ernment's power to make improvements for navigation); United States v.
Chandler-Dunbar Water Power Co., 229 U.S. 53, 73-74 (1913) (holding that
• . there is no compensable property interest in navigable waters). The Supreme
•
. Court also used this analogy in Penn Central, 438 U.S. at 124-26 (noting that
the Court upholds regulations that adversely affect property interests when
_ such regulations reasonably promote health, safety, and welfare).
93. See Andrus v.Allard,444 U.S. 51,64-65 n.21 (1979) (holding that"(tlhe
timing of acquisition . . . is relevant to a takings analysis of appellee's invest-
--
• ment-backed
nvest-
ment-backed expectations").•
94. See Connolly, 475 U.S. at 227; Penn Central, 438 U.S. at 125-26 (noting
that " 'taking'challenges have also been held to be without merit. . .when the
=` r challenged governmental actions prohibited a beneficial use to which individ-
ual parcels had previously been devoted and thus caused substantial individu-
• ali7ed harm").
•
- _ - 95. Ruckelshaus v.Monsanto Co.,467 U.S. 986,1005-06 (1983) (stating that
k "a 'reasonable investment-backed expectation'must be more than a 'unilateral
expectation or an abstract need'" (quoting Webb's Fabulous Pharmacies, Inc.
v. Beckwith, 449 U.S. 155, 161 (1980)))-
'
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+ ;c - -1 -rc - S' -'. y�`Ri' �{�-� '..-•r.tee-,.. -. -
�, r. i ,t7c t a r y a * 4". , • .•t ivf n�ufi. - _
,� _ACL'rs f'-.=`�'�."11'-•'.W...•.�..,• __+. .s`rir:•.b.• � �.�__s-_ � `_- _ ^� _ . --+
-- t - i-+'V -
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9 !
1989] EXISTING-USE ZONING 369 ., trt`' '=•-_:.•..-_'y-.
!!
that land can be beneficially used in the same condition as c ,
when the owner sees it and buys it.96 It does not, however, re- E •
quire that the public fisc reimburse a speculative investment or
assure a speculative profit as the price of regulation. The re-
•
suiting balance protects the core interest of every owner while
the police power to promote the public welfare remains _
unimpaired. -
CONCLUSION
As the country fills and people live closer and closer to- ,II
gether, it becomes increasingly apparent that we all have a ! ' .1
shared stake in the condition and future of our national t- -
landbase. The American landscape, though divided into many E'; ;
private plots, is seen more and more as the shared heritage of �`
all. The character of the land and of communities and regions, ( ','1
and the preservation of dwindling open spaces, are shared con- • ='j=-
cerns. A new land ethic of planning and stability has replaced
the pioneer land ethic of autonomy and change.
If we wish to preserve existing patterns of land use and de- ,i,�,, : .
velopment, we must employ some form of existing-use zoning "1;+,
in the relatively undeveloped, non-urbanized areas that remain. ill 1.L -.
There is no constitutional barrier to existing-use zoning. '`'. . - -
Supreme Court "takings" cases provide no basis to conclude ', f
that there is a constitutional right to develop land. On the con- :.1 I
•
trary, in Penn Central ' ` -
Transportation Co. v. New York City ; ';,� -
and Nollan v. California Coastal Commission, the Court em- ±: •
braced exactly the opposite view- There is, however, a constitu-
tional right to have an "economically viable use" of land- ', i : .l .
Although the Supreme Court has not defined the concept
of "economically viable use," it is clear that the term does not !1 1;
•
necessarily mean a profitable rate of return on any given !i'
amount of invested capital. There is nogeneral constitutional !
p
requirement that use-restrictions must leave every owner with , • •
rill
:ilt
a use that will yield a profitable rate of return based upon the ,
amount that the particular owner paid for the land. Specula- fy.,
96. This actually was the only issue decided by the Court in Pennsylvania I!j I'
Coal Co. v. Mahon, 260 U.S. 393, 415 (1922)- The property owner's expectation !i' __-- _
was the right to mine certain coal. Id. at 414. The onlypossible beneficial use _s
II '' •
of this right, at its creation and at the time of the case, was to mine the coal �I` ; ��ti�sf i•.-,_-.:.`---,-
for profit. The invalid legislative prohibition on extracting the coal eliminated I ! 1:i...- t'!';-:i:::;,.'%--L.•-•"
the only existing use that provided a basis for a reasonable investment-backed
_ expectation. Unlike the abstract potential for benefit that the speculative i 1__t::•_.=_s _:
owner hopes to reduce to a reality, the person who buys for an existing useI <- 4�=t= -: -
i
seeks onlythatprofitpotential that is founded on an existingstate of fact.
•
^. .�_ teom•;cY _'` .{ •
• • :v: _
r
-yet
_
S
�.M _ _
W-.,
' - • ' • - 370 MINNESOTA LAW REVIEW [Vol. 74:339
•
ie.,
;k. .,- ;.�--. fix.:,r tive transactions bidding up land prices do not ratchet up con-
stitutionally guaranteed uses that are immune from
��..:; . gu
�.,,.;.;' .:••;; �: ,` governmental land use regulation.
��-.. :.:. ;-::;=::, ;:11'•, Regulations limiting land to its existing uses meet the
_ � �•'�'f ';s Supreme Court's test of economically viable use as long as the
land retains some appreciable benefit in that existing use. The
government's power to regulate or prohibit modifications to en-
able new future uses, without compensation, has not been ques-
:. ~:- : ::-•:4S,.4.01,.- tioned by the Court.
It therefore is constitutionally permissible, according to the
{ Supreme Court cases, to preserve the overall character of our
-•- `i „ national landbase and to prevent pockets of development from
. _ • ".- scattering across the countryside. Existing-use zoning can
.~' �= i, ;,;:= channel new construction projects to already developed areas,
=" 'T• - ".- and the open lands in between can be retained as they are. The
"" 0.1: 4-' new land ethic of planning and stability need not founder on
�' ` the property protections of our fundamental law.
f
K
]'` ` .
f.
ti .,-.45,,,:f''.
• ,. *°:
�,,
•L y" �Y';
.�; _ E '-'-
CHANHASSEN PLANNING COMMISSION
REGULAR MEETING
APRIL 18 , 1990
Chairman Conrad called the meeting to order at 7: 40 p .m . .
MEMBERS PRESENT: Tim Erhart , Steve Emmings , Annette Ellson , Ladd Conrad ,
- Brian Batzli and Joan Ahrens
MEMBERS ABSENT: Jim Wildermuth
STAFF PRESENT: Paul Krauss , Planning Director and Jo Ann Olsen , Senior
Planner
PUBLIC HEARING:
CARL CARRICO , LOCATED ON PROPERTY ZONED RR , RURAL RESIDENTIAL AND LOCATED
- ON LAKE LUCY ROAD APPROXIMATELY 1/2 MILE WEST OF YOSEMITE:
A . LAND USE PLAN AMENDMENT TO INCLUDE 12 ACRES OF PROPERTY IN THE
METROPOLITAN URBAN SERVICE AREA;
B . PRELIMINARY PLAT TO SUBDIVIDE 12 ACRES INTO 16 SINGLE FAMILY LOTS; AND
- C . WETLAND ALTERATION PERMIT TO ALTER AN EXISTING WETLAND .
Public Present :
Name Address
Frank Carderell Representative for Carl Carrico
Laurie Williams 1760 Wood Duck Lane
Nancy Febry 1710 Teal Circle
Todd & Sherill Coumbe 1791 Ringneck Drive
- Roberte & Betty Slater 1820 Pheasant Drive
Scott Allen 1750 Wood Duck Circle
Jeff & Becky Jessen 1741 Wood Duck Lane
— Pat Johnson 3,730 Lake Lucy Lane
Mike Bomstad 1810 Ringneck Drive
Bob Spelts 1841 Wood Duck Lane
Dave DeZellar 1731 Wood Duck Lane
Riff Yeager 1830 Pheasant Drive
Carol Droegemueller 1740 Pheasant Circle
Ruben & Renae Perkins 1721 Wood Duck Lane
- Bob Gunderson 1690 Wood Duck Lane
Mike Filippi 1731 Wood Duck Lane
Eric Rivkin 1695 Steller Court
- Tom & Kari Struthers 1741 Wood Duck Circle
Mark & Donna Sims 6531 White Dove Circle
Mary Cordell 1730 Lake Lucy Lane
Jim Bergeson 1661 Wood Duck Lane ( 5/14/90 )
Mark Williams 1655 Lake Lucy
Don & Vernee Bierle 1820 Ringneck Drive
Jim Filippi North Star Engineering representing
Pheasant Hills Development
Planning Commission Meeting
April 18 , 1990 - Page 2
Jo Ann Olsen presented the staff report on this item .
Conrad: It seems to me we have a series of priorities here on this
particular issue . I think we 're going to deal with them on a , well we 're
going to open it up for public comments but if the Commission doesn 't
believe that we should be rezoning or incorporating this property into the
or petitioning the Metropolitan Council to put this into the MUSA area , the -
sewered area , then some of the other issues are not real relevant . So
that 's more of a global issue that the Planning Commission should deal with
and maybe some of the specific issues that you may have come here tonight
with will be addressed at some time and we may address them tonight ,
depending on where we go because I can 't speak for the rest of the
commissioners here but there are global issues that we have to deal with _
and then there are specific issues that we have to deal with . And I think
we 're going to , as a commission , try to figure out how to handle this
particular subject as we go along . What I 'd like to do right now is open
it up for public comments . I 'd like the applicant , if they have a
presentation for us or they have comments . They obviously know that the
staff has recommended tabling or turning it down based on the
recommendations that you heard . I think it 's useful for the applicant to _
tell us their perspective on it at this time and why it 's coming to the
commission at this point in time .
Frank Carderell : Yes , I 'm Frank Carderell , surveyor , representing Carl
Carrico . First of all , I just received the report . It was supposed to be
mailed to me but I didn 't get it until the meeting tonight so I haven 't had
time to read it . There are some questions we have and it 's kind of a
catch-22 . In meeting with the Metropolitan Sewer Board , we have to have
approval from the City first before they ' ll consider it and if the City has
to have approval before , if you have to have approval from the Metropolitan _
Sewer Board before you can approve it , we 're at a stalmate . There 's
nothing we can do so we have to start somewhere . Furthermore , I have a
question as to the wetlands alteration permit . We don 't plan to do that .
We just show a possibility if the City wanted to put a pond in there . We —
are not asking to do that because we have dropped that portion of it . We
have stated that we will donate that 4 1/2 acres to the park . In order to
do that , if you want to use the entire park for ballfields and totlots and —
we have designed tennis courts and we 're willing to give that land but
we 're not willing to grade it . We just showed what the DNR . We met , Jo
Ann Olsen met with us out there with the DNR . With the Watershed District . _
With the Corps of Engineers . This is what they said could be done in that
area . Now we don 't intend to do that . We don 't plan to build anything in
that 4 1/2 acres . We plan to give that to park because there was some
suggestion . We again have been working for 2 years on this particular
piece and the owner is getting very antsy to do something .
Conrad: Who is the owner by the way?
Frank Carderell : Carl Carrico .
Conrad: He owns the property?
Planning Commission Meeting
April 18 , 1990 - Page 3
Frank Carderell : Yes , I believe he does . That 's my understanding that he
- does . That 's why we 've been working on it . He had bought it at one time I
know and still owns it as far as I know . The concern I guess we have is
that the 4 1/2 acres that we have set aside for park would be a very
- generous portion of the property leaving 13 lots . Obviously the sewer and
water , the sewer is available to the north . The water does run along Lake
Lucy Lane on the south side so there is water available . However , why we 're
_ here is to try to get something going rather than just a stalmate . If
there is no way that the City can get together on the purchase of the
property , the total 11 .67 acres , then something has to be done with the
property . It 's been standing now , we 've had this in proposal for over 2
- years and we find that this is the second time I 've been before the
Planning Commission . However , we would be glad to have it delayed so that
we could work out the problems and again . . .
Conrad : Let me interject and normally I don 't do this but you don 't like
the timeframe that the City has in terms of redoing it 's Comprehensive
_ Plan? I have to assume that you don 't like that because we 're in the
process of looking at the plan . Looking at zoning . Looking at changing
maybe this particular site to single family but we 're in the process of
looking at all of Chanhassen and that must not agree with you . The timing
- of that , you 're saying I don 't want to be part of that action . I want to
go this alone .
Frank Carderell : No , that 's not what I 'm saying . I 'm saying we 've been
working on it for 2 years . We 'd like to get some action . The City is
still interested in buying the property . The owner would like to develop
it . Sell it or do something with it or try to get together . We feel , as
representing the owner , that he 's tried to bend over backwards . He 's
offered the 4 1/2 acres for a park . And I 'm showing on there that , like Jo
Ann just said , we don 't want it because we can 't use it . The Corps of
- Engineers , the DNR and everybody we have met with said if we put an
enhancement area of approximately 1 acre there for water , it 'd be no
problem . Also , we agree with the City but we want to try and get some
action going . We want to try , as I said before , we need some action . Is
it , the way it 's laid out , the 13 lots , will that fit in your plan? Now we
don 't expect action tonight and we 're not going to ask , if it 's going to be
denied or delayed , we would rather have it delayed to work with you but we
- also would like to get off dead center . Either if the City wants to buy
it , fine . If the City is not happy with the 4 1/2 acres . If we can lay it
out some other way , we 'd like to do that . We want some direction . That 's
- what we 're here for tonight is direction . Thank you .
Conrad: Okay , thank you . Anybody on the Planning Commission have a feel
_ for how we would like to handle the public hearing tonight? Again , getting
into details may be premature yet the applicant is saying that they 'd like
some direction and I think the applicant , he deserves that kind of
direction from us . Is it a feeling that we should open it up for public
- comments so we get their ideas at this point in time or is there a feeling
that we should react to maybe the MUSA issue and bring this back in later
on and deal with maybe some of the park issues? Anybody with a perspective
on the Planning Commission on that?
Planning Commission Meeting _
April 18 , 1990 - Page 4
Erhart : Ladd , I think you should point out that we really have nothing to
do with the park issue . This body . It sounds like the applicant is
willing to delay any real action until we get this MUSA line thing settled -
while at the same time looking for probably some comments from us about
what we think of his plan . If I 'm hearing right , that 's good because I
think that 's my recommendation is simply to deny it and wait until we work _
through the plan . Work through the MUSA line issue . If the applicant 's
looking for some constructive criticism of the plan in response to his
investment in this , I think that would be warranted .
Conrad: Any other comments? Okay . I think therefore , I think it 's
valuable to provide some direction and those of you who are here , make your
time worthwhile . If you 'd like to make comments about the plan , I know -
you 're all , I know you 're real interested in the park issue . I 'd
appreciate it , more than likely we 're going to table this or turn this down
tonight . Speaking for myself . I haven 't counted noses here but more than _
likely it 's not going to go through . But I 'm curious about your general
impressions with the plan that you see , if you 've looked at it and
therefore , without getting too detailed in some of the specifics . I don 't
want us to get bogged down in the real specifics but if you do have some
real concerns that we should be looking into that might provide the
applicant with some direction . Might provide the City with some direction .
The Mayor 's here tonight and I 'm sure he would not mind hearing some of
your comments too , if he hasn 't heard them already . But I ' ll open it up
for any comment with that kind of direction if that 's clear or foggy , I
don 't know . Are there any comments?
Jim Filippi : Mr . Chairman , my name is Jim Filippi . I 'm with North Star
Engineering , consultants . I represent 11 of the homeowners in and around
the Pheasant Hill area regarding this particular development . We understand -
that it will be continued tonight , tabled . We see that as a nice
opportunity to be able to sit down and work with the developer . The
concerns that the people that I represent have relate to the park area . _
The area of it . The location in particular . The suitability for
development . We think some of the points in the staff report regarding the
potential adjacent development of the Hughes property are well taken in
terms of viewing that as to how this development should tie in and where
that landlocked parcel would go . At this point we would like to , from the
viewpoint of the entire property , the first choice would be to have the
City purchase the whole thing as a park . That there be some sort of -
negotiation or purchase agreement arrived at where that could be . Barring
that , that the roadway alignments take into account the adjacent property
and that the park location be shifted to where there may be some more _
suitable property . Particularly when you look at it in view of a no net
loss policies that you 're getting with the wetland and whether the
enhancement really is a 3 : 1 or 2 .5 : 1 trade-off that you look at . We would
ask that the Planning Commission direct both staff and the developer to
provide an opportunity for you representative of the neighborhood to meet
with them and that a representative of the neighborhood be notified of
staff meetings , if the developer would so consent to that as alternatives _
are discussed in the intervening time so that hopefully come August or
whatever that anticipated timeframe is , we 've got an agreement of how the
property should be developed rather than what you 're looking at now .
Planning Commission Meeting
April 18 , 1990 - Page 5
•
Pat Johnson: Good evening . I 'm Pat Johnson . I 'm a homeowner . I 'm also an
attorney . My address is 1730 Lake Lucy Lane . We 're no in Pheasant Hill .
We 're in the area south of this proposed development . Lake Lucy Highlands .
We had a meeting at my house at which Mr . Filippi was there . Some of the
Pheasant Hill people were there . Some of the Lake Lucy Highlands people
were there . We 're concerned about the park issue . I did a little checking
though as far as title to the land here and based on my checking . We have
a lot of questions to ask the developer based on my checking that doesn 't
indicate he owns the land . So the first question is , who actually down own
the land . Title as far as I could tell was in the name of a bank . So we
do have some questions as with the developer and as Mr . Filippi said , we
would like to maybe coordinate with the City , particularly the parks
- department or whoever is going to , who 's in charge of acquisition of this
land , and see if we can 't get some input together and talk with Mr . Carrico
or with the owner . Who he represents . Whatever the case may be and see
- what we can do to work something out and I think that 's the consensus of
most people at my house this evening . As far as the plan goes , again we
have problems with seeing anywetlands go I guess is what we come down to .
There are some steep grades there . I think at the meeting last year
I objected to the way the road was coming in so close to the Lake Lucy .
There appears to be a change there that we 'd like to look at so thanks .
- Mary Cordell : Hi . I 'm Mary Cordell . I live at 1730 Lake Lucy Lane right
across from the parcel . I guess the comment that I would have that I feel
like I would need more information on is what type of developer is Carl
- Carrico . I don 't have any information on him . As far as what I 've heard
from the City , I don 't know that they have that much information on him .
What types of homes? What price range of homes? What? You know we don 't
_ have much information as far as what they 're really thinking of putting in
as far as the homes so I think as a neighborhood resident , we have a lack
of information and I think the suggestion that we have a neighborhood
representative be working maybe with the developer and with the Planning
- Commission , just so we have the information available to us would be
helpful .
Conrad: Excuse me . Paul , could you try to answer her question the best
way possible in terms of the City 's control over those types of things?
Krauss : Yes Mr . Chairman . We have direct control over the layout of the
subdivision . We have standards that they have to adhere to . Be it a good
developer , bad developer , be it indifferent , they have to adhere to the
same standard . We do not do background checks on the individual developer
- nor do we regulate exactly what they build there . It 's a single family
home . It has to meet standards .
Mary Cordell : I wasn 't aware of that .
Krauss: I can understand why the neighborhood would be interested in what
sort of home they build and what price range but by law that 's not
questions we 're permitted to ask .
Mary Cordell : Okay . And also just as a personal comment , I mean my
- preference is to see the City purchase the entire parcel for parkland for
Planning Commission Meeting _
April 18 , 1990 - Page 6
our area . I think a lot of the people that are here are coming in support
of the parkland . We have over 100 kids in the area and there 's no park .
Just a comment as far as the location of the parkland , just in meeting
with Park and Rec and talking to them , it doesn 't seem to be that feasible
for the needs of the area and we think we need something more and we think
we deserve something more .
Bob Spelts : My name is Bob Spelts . I live at 1841 Wood Duck Lane and I 'm
involved with a number of these people in trying to develop an association
for Pheasant Hills . The Homeowners Association . There 's a number of -
issues involved here . With all due respect to Paul and his folks , some of
us have not had a good relationship with the developers around here and
sometimes the things that they say , we take with a little bit of a grain of
salt but there are a number of issues , one of which is the fact that we
don 't have a park anywhere for our children to use . This area was pointed
out to us by the people that were selling us our homes and our lots that
this would be a park someday . Now I know that you can 't control that at
this point but still the promises were made and we had certain
expectations . Another issue is this roadway through here . Lake Lucy Lane
has become a thoroughfare for people who don 't want to go south over to -
Galpin Lake Road . They cut through and I see this other road as another
shortcut through the development . We have been concerned about the traffic
through there because it 's been impossible to get a stop sign put at the
intersection right around the curve so everybody guns their engine and
takes off as they come around that corner and if we create more hazards for
our children , it 's just going to make those of us in the neighborhood all
the more concerned about what 's happening . And then finally , if you look -
at the area that 's designated , the 4 1/2 acres there , if you actually go
out there and look , that doesn 't make a suitable park area . We would be
destroying natural wetland and I don 't think that that 's a reasonable thing _
to do at this point in time and the concerns that we have about ecology and
so we would recommend that the entire parcel be bought and used for park
for our neighborhood . Thank you .
Eric Rivkin: Eric Rivkin . I live at 1695 Steller Court and I live in Lake
Lucy Highlands which is right around the corner from this parcel . I 've
spoken before the Park Commission last Tuesday and a lot of the things
pointed , kind of the general feel of how things like this get developed and
call for the need for more parkland in this area . This is a park deficient
area . It 's seen in the staff report that this is , the Park Board agreed _
with that . I would like to see this whole parcel be bought by the City as
a park . One of the things that I have brought up as an issue is the fact
that the laws . The weak laws that are in the City about standards that
have to be met when parcels are subdivided . That a certain portion have to
be set aside per person for parkland . This kind of land that he 's proposed
to set aside here is not by any stretch of the imagination park . If you
visited the site , it is mostly wet in the spring of the year . There is -
standing water there now . They cannot be built any totlots around it
because it is either wetland or it is too steep . And the system does not
work because it does not set aside any quality land for park . We 're _
entitled to parkland that can be really used . I think that funds were
short , mentioned by the park board . I think in order to find other sources
of funds , we should encourage the park board to be creative about where to
Planning Commission Meeting
April 18 , 1990 - Page 7
find these funds . Maybe laws need to be changed perhaps about how parkland
is acquired before MUSA lines get expanded and land prices soar . That 's
not the time to buy parkland . The time to buy parkland is now when the
MUSA line in this area is not established because land values are fairly
reasonable now . I understand that the City had a couple of assessments
done for the land of what it is worth now as being less than $70 ,000 .00 . I
understand that Mr . Carrico had this appraised as if it were completed
sewered and watered and subdivided and developed at $350 ,000 .00 . I 'm sure
there 's a place inbetween that would fit within that would be reasonable .
So I encourage that the City should involve in negotiations with Mr .
Carrico . The other issue that I want to bring up is an ecological one .
It 's very important , we 've had the Lake Lucy Homeowners Association pulled
together $1 ,500 .00 and paid Dale Hogan , a biologist , to assess our lake and
our watershed area because we want to clean up our lake and this is in the
- Lake Lucy watershed . That wetland drains into Lake Lucy . It carries all
the nutrients that are draining into that wetland and if this is developed ,
will contain more pollutants , more nutrients than possibly this lake can
handle right now . He found evidence , very strong evidence , to support that
fact that our lake is a seepage lake . It is fed by ground water mostly ,
not by runoff . If you pave over and overdevelop land in this manner , he
said that if the area were fully developed , that you could lose 20% to 25%
- of the replenishment opportunity for Lake Lucy . That is a headwaters for a
chain of lakes . For that reason alone , Lori Sietsema commented that the
park board should deny to go ahead with this project . Also , in the Sailor
- which came out today , the Metropolitan Council has a lynologist who stated
in here that the water quality in metro area lakes will continue to
deteriorate unless there are lifestyle changes such as no fertilizing ,
_ reduce use of cars and modified building practices . He said that it 's not
hard to find examples of large scale residential and commercial
developments in areas soon after MUSA lines get extended and transportation
systems are extended . The point in this article is that this will
— contribute to a thing called non-point source pollution and our watershed
district and ourselves and other lake associations on the chain of lakes
have been trying desparately to try and get funds together to clean up the
chain of lakes from non-_point source pollution . The main source of that is
development . Laws have to be established to , better than what we 've got
now . This doesn 't do justice for that reason and we need to raise our
expectations about ecological impact on our watershed . We 've got our best
natural resources in this town are our lakes . We are going to continue to
degrade them further if we put in developments like this so close to the
watershed . We 've got to control and better planning to be able to have
- holding areas to trap the sediments . Take them away and give them to
farmers who want the nutrients . We 've got to have better practices .
Management practices in the watershed that should be legislated hand in
_ hand with practices that the watershed district cannot or are unable to
enforce through planning practices . Thank you .
Conrad : Thank you . . . . I think it 's real clear where your interests are
there . I 'm interested in other issues that we could be concerned with . I
don 't want you to stop if I 'm taking some of your comments away but we have
heard those and we 're sensitive to those . I 'm not sure the Planning
Commission is a , we 're not necessarily the best resource in terms of park
useage . I think we rely on the Park and Rec and the City Council primarily
Planning Commission Meeting
April 18 , 1990 - Page 8
for those decisions . But as to how it 's impacting a layout . How it 's
impacting a subdivision , we 're interested in that but again , the issue is ,
we 've heard the issue . I 'm real interested in other things .
Carol Droegemueller : My name is Carol Droegemueller . I live in Pheasant
Hills , 1740 Pheasant Circle and I guess I responded to this particular land
and the way it 's been proposed over the last year . Even through this —
entire process of coming to public hearings , I 'm still unsure about a
particular question so I 'm going to ask it and totally reveal my ignorance
here but , this is a Planning Commission here and you are responsible for
the comprehensive plan for our city . I am not sure how park needs are
designated here and I would like maybe for you to address that exactly .
If you don 't zone it specifically for a park , how does it happen? Do we
knee jerk response to every development that comes through and then decide
that a park is necessary because we have all come here and complained that
we need it? I would like to see our Planning Commission look toward the
future and the numbers that are growing and , I don 't know if there is a —
zoning for a park and I guess I would like to hear you address how that
works so we can better use it . Then my second comment is , I would just
like to reiterate something that was said at the meeting on April 11th .
Jim Mady who is from Park and Rec , summed up the response for us that the
Park and Rec Commission had , and I think it bears repeating . He said that
we have to look at this development in terms of what it can do for the City _
of Chanhassen . His feeling was that it would simply add 12 or 13 more
homes in need of a park . We would still be back to ground zero and we
would go through this process one more time looking for property that would
suit 12 more homes in need of a park . -
Conrad: Paul , maybe you can help integrate for everybody the role of Park
and Rec and Planning Commission . _
Krauss : The Park and Recreation Commission is charged with advising the
City Council on acquisition and development of park property . The Planning
Commission typically accepts their recommendation and then embodies that in
their recommendation to the City Council . Parks , specifically where they
should be , what they should look like are not typically addressed directly
by the Planning Commission because they 're looking at the development
relative to the surrounding area . The question as to whether or not parks
are zoned as parks , typically they 're not . Parks are a permitted use in
the residential and agricultural districts in the community and as such _
they can go presumabely anywhere . The City does have a comprehensive plan
that does locate major park facilities and acquisitions to those and those
are the facilities that have the ballfields or the major environmental
amenities that are being protected or whatever and we identify those
because they 're quite site specific and they 're quite large . The facility
that we 're talking about tonight is a neighborhood facility . Neighborhood
facilities are not specifically located but what they are is a designated —
search area on the map and then typically as development occurs , parcels
are reviewed to see where those opportunities may lie . The park board has
some ideas given the lay of the land where a park should be but I think
you 've got to recognize that the way in which we acquire parkland is only
one of two ways . We can either take it as a required dedication with a
subdivision in which case we 're limited to how much we can take by state
Planning Commission Meeting
April 18 , 1990 - Page 9
law and there 's a reasonableness and do we have to take , and no we don 't
- have to take wetland as active park area if we don 't want to but we can 't
take the whole site . If we want to take more parkland that we are entitled
to under the subdivision ordinance , we have to buy it . The park board
- continued this item and that 's really realistically a recommendation that
they ' ll have to make directly to the City Council . I 'm aware of the fact
that negotiations are continuing . I 'm not sure if they 're going to be
successful or not but we simply under the subdivision and zoning ordinances
do not have the right to stop a development because we prefer that most of
it be park . We can require a dedication and that would be done . The
comment that there aren 't a whole lot of opportunities for neighborhood
- park development in this area appear to be accurate . In talking to Lori
Sietsema , there 's not a whole lot of opportunities left . For one reason or
another these things have been deferred over the years and we 're looking at
- one of the few opportunities remaining and it will be for the park board to
recommend to the City Council a course of action on that .
Conrad : Okay . Good comment .
Jim Filippi : Paul , can I ask who 's doing the negotiations on behalf of the
City?
Krauss : Lori Sietsema .
Conrad: So really what you 're saying Paul , and I think it 's good for the
neighbors to hear that . In this particular case , there is not a zoning
that we 're doing and it is possible that in a deficient area , we could end
up with no park . That 's really possible based on the process .
Krauss: It 's not inconceivable . Given the fact that this is one of the
few remaining opportunities , there 's obviously a strong desire to work
- something out and work it out quickly . A lot of times we acquire park over
a period of time . As different parcels develop , you take a chunk of park
here . A chunk of park off of that subdivision and when you put the whole
together , you 've got a nice piece of park . We don 't have that flexibility
at this point . This is one of the few remaining sites .
Conrad : Okay , thanks . Any other comments?
Jim Bergeson: My name is Jim Bergeson . I 'm at 1661 Wood Duck Lane in
Pheasant Hills . After attending the meeting last week with the Parks
commission and then tonight , to me there 's some major issues that kind of
stand out . One is the road that 's proposed as far as thru traffic going in
and through Pheasant Hills . Another issue is the speed of getting
something done . The developer is concerned about getting something done .
The residents are concerned about getting a park developed and not waiting
for another year and having that drawn out . If the developer and the
community got together and did some compromising . The developer drew up a
- new plan . Came up with perhaps 8 lots instead of 13 lots . Had a
cul-de-sac instead of a thru street . The parks commission bought some
additional property . My question is , would the developer be able to
re-present that proposal to the Park Planning Commission and this Planning
Planning Commission Meeting
April 18 , 1990 - Page 10 —
Commission and get something done fairly quickly as far as getting the MUSA
line okay?
Conrad: Well I can 't react to the whole thing but the MUSA line , we 're
trying to deal with it not in reaction to this particular property . We 're
in the process of looking at all of Chanhassen and there 's a schedule set
up for doing that . We really don 't want to react . If we took this to Met —
Council right now , there 's a good chance , it might be harmful for us as a
city to approach the Met Council . So therefore , there 's probably a feeling
here that we don 't want to do this on a site specific issue like this one . —
Therefore , we are going to delay more than likely , we are going to delay
action on zoning it for residential use . That area is logically a
residential neighborhood so it 's not like we 're thinking commercial or _
something like that but it 's in conjunction with a lot of other activity
that we 're going to be going through . Paul , what 's the timeframe just so
people know?
Krauss: Well , we 're looking at submitting the comprehensive plan amendment
to the Metro Council this summer . It 's probably going to be July or
August . We need to hold public hearings on it first . Some of you may have_
seen articles about it in the newspaper . There 's going to be a continuing
number of those in the next few months . I guess one thing I should clarify
too is there seemed to be an implication that there 's a catch-22 situation
with MUSA line amendments . Individual property owners and developers don 't—
make requests to move the MUSA line , cities do and the Metropolitan Council
responds to a City Council 's request to do that . In fact they typically
dislike talking to individual developers because that puts them behind the —
8 ball . The City 's been going through a comprehensive plan process for the
last 2 years that 's basically considering the well being of future
development of the entire community . The City 's running out of land to —
develop in other areas . There are some needs for different types of things
in the community and there 's a guide plan amendment , the one we 're looking
at is looking at moving the MUSA line to include about 2 ,000 acres . Now
this particular site is well within the area we 're considering and we just —
have a concern and this has been related to us by the Metro Council staff
as well , that they don't want us to come to them in a piecemeal fashion .
We 're revamping our entire plan in the manner that they laid out and rather —
than take these things on a catch as catch can basis , we 're coming to them
with the whole package . We 're explaining why we need to do this . What we
propose to do. How we 're going to build the roads . How we 're going to —
build the sewers . Everything else and frankly as staff , we support that
approach . That 's why we recommended that this be continued or denied .
Conrad: So it 's not totally relevant to your issues . It 's a function of a —
process that we , in this particular case I believe we want to follow
because it makes sense for all of Chanhassen . Park and some other things
can happen but in terms of residential going in there , there 's a good —
chance we can 't move quickly on that .
Jim Bergeson: So it is possible that if the developer and the community
reached an agreement , the developer could sell property to the City , —
develop the park with the expectation of the MUSA line approval later and
then development of a limited number of homes?
Planning Commission Meeting
April 18 , 1990 - Page 11
- Krauss: I don 't want to imply that we will refuse to talk to the
neighborhood or developers . That 's anything but the case . We 'd be happy
to continue negotiations on acquisition or continuing possibly the park
board would make , I 'm not sure about this , but make a recommendation to the
City Council irregardless of what you do tonight on this development and
we ' ll be happy to continue working with everybody to get a plan in place
that we find that we can recommend approval of at such time as the MUSA
line moves but we don 't anticipate this going ahead until that 's done .
Conrad : Are there any other?
•
Frank Carderell : I guess I want to clarify some points . I think when we
started this there was no reaction from the City for the MUSA line . We
were alone at the time and we met with the Metropolitan Sewer Council and
that was over a year ago , year and a half ago and we are again willing to
try to work out the problems . What you 're hearing tonight is the beginning
process . We obviously realize that the roads that we proposed were what
- the engineering department asked for . Now that 's what we did . We are here
tonight for direction . If the landowners , adjacent landowners don 't want
that road to go through , we ' ll put a cul-de-sac on it but we have to have
- direction and that 's why we 're here . We are here for 3 things .
Negotiation on the park . Fine , if they want to buy it all , fine . We have
laid out for Lori , I 've laid out what she asked . A totlot , 2 half court
_ basketball courts and I believe 2 tennis courts and that 's what she said
she wants on the property . I laid them out for her . We designed them . We
put them in the property and that 's all she said they wanted . Well if they
want something else , we 'd like to know . That 's the direction we 're asking .
- We 're not asking for . . .
Resident : . . . is that on the wetland?
Frank Carderell : It 's not on the wetlands at all . It 's off .
Resident : It 's not on the 4 acres?
Frank Carderell : It 's on the 4 1/2 acres . Yes it is . All of it can be
designed on that 4 1/2 acres . We have done it and I 've given it to Lori .
- I didn 't know about the Park Board last week or I 'd have been there but we
do need direction and we are at this point beginning that direction and
that 's what we 're here for . As you can see , there 's going to be a lot of
work yet to go in it . It will probably be August before we get the plan
laid out .
Resident : Can I ask . . .plan submitted this summer , like what time line are
you looking at as far as approval or not of the MUSA line? Any idea? Like
when are you realistically looking to get sewer and water into this parcel
and neighboring parcels?
Krauss : Once we submit it to the Metro Council , honestly it 's somewhat out
of our hands . Metro Council has 90 days to review it . They can ask for
_ extensions if they feel we haven 't covered something adequately or the
public community has raised objections . It enters what frankly is a
Planning Commission Meeting
April 18 , 1990 - Page 12 —
political arena at that point and I would predict exactly when it would be
adopted . If things proceed smoothly by November , an amended Comprehensive
Plan could be in place . That 's the earliest .
Conrad: Anything else new . Any other new issues? Anything? Okay , is
there a motion to close the public hearing?
Batzli moved, Erhart seconded to close the public hearing. All voted in
favor and the motion carried. The public hearing was closed.
Erhart: Paul or Jo Ann , would you go through the proposed street design
and explain , if in fact that 's what we wanted and the pluses and minuses
and why it came that way .
Olsen: The City does . . .applicant and we do approve of this connection .
Again , the 50 foot right-of-way in the Pheasant Hills PUD was put in for
future connection . The access here has been located to give us separation —
from Lake Lucy Lane . It 's also , because of the slope of the property and
the wetland area , is one of the reasons it was kind of designed with the
curve in it and the half cul-de-sac . We are looking at , with the Hughes '
property potentially coming in with a cul-de-sac in this direction or we 've
also looked at possibly coming in in this direction . I think maybe what
some of the people in Pheasant Hills were getting at was whether or not we
could do a loop drive through here and not use this connection . Frankly —
that 's something that we haven't reviewed at the time . . . .there is a long
cul-de-sac here and I don 't know if you 're familiar with this area but
going to the east , there is an area there for future connection . . .so we do
need a secondary access out on that location .
Erhart: And access on Wood Duck Lane?
Olsen: Well it 's not Wood Duck , it goes out to Yosemite . . . But anyway ,
there are other options there .
Erhart: Well you state that the road design provides a 90 degree bend
which does not meet city standards . I assume you 're putting that in there
to try to eliminate thru traffic . Is there a potential for a lot of thru
traffic through there? —
Olsen: I know that there is a lot of thru traffic , because some of the
people were talking about with the location connection here to Lake Lucy —
Lane . If you remember , Lake Lucy Road used to go straight through to
Galpin and we cut that off and it loops down now so the people on Galpin do
tend to cut , who are going to go east , do cut through Pheasant Hills . They _
cut onto Lake Lucy Lane and through rather than going straight to Galpin ,
or to Lake Lucy Lane and curbing back up . I don 't know if they would still
be . . .in using this access or that same sort of thing but I 'm sure people in
this northern area would be cutting . We even have had some people —
recommend the City looking at vacating Lake Lucy Lane where it comes up
Wood Duck . They 've got a cul-de-sac and if this went through, then it
would just be moving . . . —
Erhart: Okay , it sounds like you 'd want to review that further .
Planning Commission Meeting
April 18 , 1990 - Page 13
Olsen : Well we are hoping with this time that we have now , to include
the Hughes property .
— Erhart : So you could have an all encompassing approach? Okay . Well that
makes good sense and I suppose with that respect then perhaps our comments
on the street design tonight would not have that much impact .
Olsen : They ' ll be changing .
Erhart : Yeah . I 'm a little curious . Why do we look at a plan that
- doesn 't have lot widths that meet the code?
Krauss : In this case it wouldn 't be a very difficult exercise to adjust
— the lot lines to meet code .
Erhart : Isn 't it clear to developers when they finally get to this point
— that they 're not going to get lot widths approved that .
Olsen: They 've not given the impression that they ' ll be approved . I think
things like this , they might just have been overlooked .
Erhart : Overlooked?
- Olsen : That 's making assumptions .
Erhart : The fact is it 's supposed to be a professional engineer is
_ providing , or professionals are drawing up the plans . It just seems odd to
me that you would get to this stage in the process and we 'd still have such
simple things as lot widths not meeting the standards . So from those
comments I think it 's clear that the developer would have to meet that if
- he 's going to proceed any farther than this point . Why do you suggest that
the developer would have to put speed advisory signs?
Olsen : That was coming from engineering where because of that 90 degree
curve is a more dangerous curve that they would just recommend us to . . .
Erhart : Would the developer put those up or is that a city responsibility?
Krauss : It would be in the development contract . If we installed a
street , we would install it and assess all the costs back .
Olsen : It would be in the right-of-way .
Erhart : Okay . My recommendation is to deny this tonight . Not that I
criticize at all the developer for trying to pursue his interest in this
property . In fact I appreciate the effort that the developer has made in
pointing out to the City that in fact there 's land here that would like to
- be developed and obviously he believes that there are potential homeowners
that would want to have access to these lots or perhaps there 's people who
want to have access for a park and I think everybody , one more stimulus to
- point out to us that we need to make some action on this whole thing . As
I 've stated many times here in the past , I dislike this whole concept of
Planning Commission Meeting
April 18 , 1990 - Page 14 —
the MUSA line and think there 's a far better way to limit urban sprawl than
draw MUSA lines . The fact is that we have to , I think we 've been forced
over the years to accept that approach to controlling growth and the fact
that we 've had to do that despite my , again empathy for the developer and
encouragement to continue to pressure us to , and the citizens to accomplish
some action here . I cannot help but do anything other than recommend a
denial at this time and would look forward to seeing the proposal at a time
when we 're ready to actually take some action on it .
Emmings: I 'm not going to make any specific comments . The matter ought to—
be either tabled or denied . I don 't see any real compelling reason to do
either one . It seems to me that if we deny it , does that mean he has to
pay another fee if he wants to bring it up again? Is that one difference
—
between tabling it and denying?
Krauss: Theoretically yeah . That frankly didn 't occur to us but that 's
true . The reason we would suggest denial or the only reason we would —
suggest denial is if the developer objected to the delay , we 're held under
statutory requirements to act on this .
Emmings : I understand . There 's plenty of good reason to deny it and
I guess in the spirit of trying to keep negotiations open with the
developer and so forth and trying to get something resolved on all these
issues , maybe that 'd be a good reason to table it but I don't have anything
else .
Ellson: I agree with the Park and Rec that it should be a park and —
I prefer not to comment on this what if type of plan . What if we get a
MUSA line and if we get the zoning and you saw a plan like this , would you
approve it? That 's the way I view what they 're coming forward with this on_
and I feel that it would put the City at a disadvantage during this
negotiation . The less apt I am to tell him that I would okay this plan in
the future , the less they probably have to show future land values and
things like that so I 'd rather not comment . Whenever it comes forward , it —
has to come forward like everything else with all the`approvals met . Quite
frankly , the City spent an awful lot of time looking it over . They 've got
a lot of comments from them and more work than I 'd probably recommend they —
do even but I think it would be a waste of our time and it wouldn 't really
help the City in their negotiating points so I would deny it . I wouldn 't
table it either . I think a tabling gives the impression that it 's still —
active and there 's still some hope and this thing doesn 't meet anything so
I think it should be denied .
Batzli : I was going to ask some site specific questions if you don 't mind . —
Jo Ann , there was discussion last time about the 90 degree curve and that
it wasn't up to some sort of standards . Is that still the case? I don 't
recall exactly what the problem with that was . Was it just a speed —
problem?
Olsen: I believe that 's all it was .
Batzli : There was nothing about the cul-de-sac being on the corner?
Planning Commission Meeting
April 18 , 1990 - Page 15
Olsen : The only reason there 's comments usually about that is from the
public works department . Whether or not they can get the snow out of there
and they had no comments against that .
- Batzli : Do we encourage that type of thing?
Olsen: We 've gone both ways in the past . Again , it was discussed at this
_ point and it wasn 't felt that it should be removed . And I know that we
have discussed where we curved it and just took out the cul-de-sac .
Batzli : We have discussed that?
Olsen: We have internally and it wasn't to that point where we had to , we
didn 't agree to require them to remove the cul-de-sac .
Batzli : Have you guys seen the plan at all that the developer 's drawn up
for the totlots and things like that at all?
- Olsen: I saw a copy where they showed where some of the facilities could
be developed but it is all , this doesn 't show it too well , but the actual
outline of the wetland is approximately in this location . What they 're
- proposing is to make this the wetland and have all this able to be filled .
Batzli : The smaller part that 's in yellow on ours would be the part?
Okay .
Olsen : But from our testing of this or research , these soils are still
really porous and there will be water . . .but that 's where the Park and Rec
— did not agree that this would be good facilities .
Batzli : Who mapped the wet , did the Fish and Wildlife map the outline?
Olsen: We did go out with Fish and Wildlife and the Corps .
_ Batzli : You haven 't gone out there since '88 or whenever you went out?
You haven 't been out there recently? This was 2 years ago when we drew . . .
Olsen : Not with the Fish and Wildlife or the Corps . I 've been out there .
Batzli : But that was kind of previous to this drought so , okay . Then we
moved the Carrico Lane over to the west creating Outlot B . That was our
recommendation to get it away from the intersection of Lake Lucy Road and
Lake Lucy Lane?
Olsen: Yeah . If I can recall , I think that there was some remnent piece
to begin with . I don 't know , was there?
Frank Carderell : Yes , that was moved over there at the engineer 's
- request . That 's why that outlot is in there . Otherwise he came straight
down .
Batzli : Would Outlot B be deeded to the City?
Planning Commission Meeting
April 18 , 1990 - Page 16 —
Frank Carderell : Yes . Also , to answer your question as to that 90 degree
curve , that was Lot , I think it was 1 , 2 , 3 , 4 , 5 was put a larger radius
on there at the engineer 's request . This has been worked through the _
engineers and the roads have been approved by the engineering staff when I
was there at the meeting . And by the way , that line on there , the part
there in green is the wetlands as staked out on the field with Jo Ann and
with the Corps and with the DNR and that is the wetlands that they claimed . —
They put the stakes in .
Batzli : Right . But she was indicating that the plans that she saw , you _
had the totlot in part of that .
Frank Carderell : They were all around . I 'll get those plans for the park
where we showed the tennis courts , the totlot , the half ball courts are all—
out of the wetlands completely .
Olsen: Not the existing wetland . —
Batzli : How much active parkland , just out of curiousity is there if you
take out the wetlands from this 4 . whatever?
Olsen: Well if you take out the existing wetland , there 's not much because
the rest of it is slope . There 's not much .
Frank Carderell : About half . About 2 1/2 acres are wetland and about 2
1/2 acres are high .
Batzli : Does that take into account the driveways meant at all then too?
Frank Carderell : The driveway isn 't going across that . . .
Batzli : Okay . I guess I agree that I think a portion of this property or
nearby needs to be a park . I think obviously this needs so many variances
at this point , well it needs several variances and it doesn 't meet the , —
it 's not zoned correctly and it can 't be rezoned until the MUSA line 's
moved so that I would also recommend denial on that basis . But I think
obviously the developer shouldn 't necessarily be totally frustrated and —
they should continue to negotiate and work with the staff because I think
the movement of the MUSA line is hopefully going to shortly be a reality .
Frank Carderell : I just had one thing. That 's $1 ,000 .00 the developer has—
to pay just to bring it back and that 's a hardship on the developer . We 're
willing to negotiate but if you deny it , that throws that out and he has to
do it over . —
Batzli : You 'd prefer that we table it?
Frank Carderell : Why certainly . —
Conrad: If we deny it , you get to talk to the City Council .
Frank Carderell : Well that true .
Planning Commission Meeting
April 18 , 1990 - Page 17
Conrad: That 's worth $1 ,000 .00 right there . You 'd rather not have it go
- that route?
Frank Carderell : . . .other than we have to come back with another
$1 ,000 .00 . . .
Conrad: Okay . Joan?
- Ahrens: I 'm not going to ask any site specific questions on this but I
think it should be parkland also . I think parkland is really necessary up
there and needed . I have a question about these speed advisory signs
- though . If you have any extras of those Paul I think they should be posted
all along Lake Lucy Road which is used as a raceway by I 'm sure a lot of
people in this room also . I happen to live on Lake Lucy Road . Anyway , and
if it 's a park , you may want to post those signs too because the kids
riding up and down that road are going to have to deal with the racing
cars . But that 's all I have .
- Conrad: Okay , thanks . I generally agree with the staff report tonight . I
think some good comments in the staff report . Some things that are real
important to me , I ' ll just hit them . I do need to know that there is , I do
- need to know proof of title or ownership or some kind of contractual
agreement by Mr . Carrico . I need to know that he has an interest or some
document that proves that . Parks , I think it certainly seems like a park
deficient area . We ' ll wait for input from the Park and Rec Department . I
think there 's enough of you interested in that you 're going to get some
kind of action on that particular issue . I 'm not interested in hurting the
wetlands at all . I think there is , as Mr . Rivkin said , they 're rather
- important , especially in the chain of lakes , that this may head up . I 'm
interested in Dale Hogan . Was it Dale Hogan? I think you should get that
report to staff , if they don 't have it . Make sure that Lori gets it to the
- Planning group . Well , Paul you can ask Lori for that . I 'm interested in
that . I didn 't quite follow all the comments on that but as to how that
will affect any type of a subdivision . That 's significant in my mind . I
_ think we have gone through some road alignment issues here that I thought
staff was sensitive to the ecology of the area and therefore , just so you
all know my position on the roadway , I 'm not necessarily against what I see
in the plan right now . Obviously it 's going to be dependent on parks and
- going to be dependent on a whole lot of things but again , I don 't see a
real negative on that road other than , and I have to take a look at it
again specifically how it impacts wetlands and how it can impact some of
the contamination downstream . Obviously the reason that I don 't want to
pass this tonight is I 'm not interested in going to Met Council and having
this put into single family at this point in time given the fact that we
are going to do that for all of Chanhassen . Any other comments? I think
- the applicant is recommending that it be tabled . If anybody feels that
they want to bounce this to City Council for their comments , another way is
to deny it and that will cost the applicant another $1 ,000 .00 .
Emmings: Or we could recommend denial and the City Council could table it .
That way they get it both ways . They get the input of the City Council but
still don 't wind up with the extra fee if the City Council decides . . .
Planning Commission Meeting _
April 18 , 1990 - Page 18
Conrad: Well there are a few Council members here tonight . Did Jay
leave? Is Jay here? I know Ursula 's here . Jay , you 're there . Yeah ,
there are a fair number of Council people here . They heard a lot of the —
comments tonight so whether , it can go to them . On the other hand , 3 out
of the 5 heard a lot of the neighborhood comments tonight .
Erhart : I think if the applicants asking us to table , let 's just do that . —
Conrad: It 's what you want to do . Yes sir .
Jim Filippi : There are a number of the neighbors who would support tabling
rather than going to Council at this point .
Conrad : Okay .
Batzli : I move that the Planning Commission tables Land Use Plan Amendment
#88-4 , Rezoning Request #88-4 , Subdivision Request #88-19 , Wetland —
Alteration Permit #88-12 based on our previous reasons , discussions and the
applicant 's request to table it rather than deny it .
Conrad: Is there a second?
Emmings: Second .
Conrad: Any discussion?
Ellson: I have a question . What Paul was saying , how soon do we have to —
bring it back then legally and things like that?
Krauss: If the applicant agrees to the tabling motion , you don 't have a —
problem .
Ellson: Once it 's tabled , they have to say well you have to see it again?
Krauss : No . The clock only ticks if the developer intends to push it .
Have a finding that you 've exceeded 120 days . They 've agreed to the
continuance . It 's not a problem . —
Emmings: Well , do you need that from them in writing?
Krauss: It would be nice , yes . That would be a good idea .
Emmings: Well then there 's a condition that , are you including that
condition? —
Batzli : Yes .
Conrad: What was the condition?
Batzli : The condition is that I move to table it pending the developer 's
approval in writing to the City staff .
Planning Commission Meeting
April 18 , 1990 - Page 19
Batzli moved , Emmings seconded that the Planning Commission tables Land Use
Plan Amendment #88-4 , Rezoning Request #88-4 , Subdivision Request #88-19 ,
Wetland Alteration Permit #88-12 pending the developer 's written approval
to staff . All voted in favor except Annette Ellson who opposed and the
- motion carried with a vote of 5 to 1 .
Conrad : And your reason?
- Ellson: I 'd rather deny it outright rather than tabling it .
Conrad : Okay , motion does pass . I think , for the neighbors who are here ,
- the process in terms of Park and Rec and negotiations . How can we advise
the neighborhoods right now . They do have some counsel and they 're
obviously interested in working with the developer . Working with staff .
What is a feasible way we can guide them in doing that Paul or Jo Ann?
Olsen: Well they are being notified of all the Park and Rec meetings .
- Conrad : You will be in the future for sure . So is this an issue that Park
and Rec is actively dealing with and is Park and Rec going to be dealing
with it relatively shortly?
Olsen: Yes . Lori is again in the negotiating stage and looking at other
property that is available so yes , it is being actively pursued .
Conrad: So any neighbor who has signed up right now for sure will be
notified of Park and Rec meetings okay . Any other recommendations for the
community or the developer at this point in time? Anything? Okay . Good .
- Thank you all for coming tonight and we ' ll keep you involved in the
process . Thanks much .
PUBLIC HEARING:
MODIFICATION NO . 10 OF THE REDEVELOPMENT PLAN AND TIF PLAN .
- Chairman Conrad called the public hearing to order .
Batzli : I think you just for the record indicate that the only people in
- the room are two councilmembers and staff and us .
Conrad: Okay , you just did .
Emmings moved , Ellson seconded to close the public hearing . All voted in
favor and the motion carried . The public hearing was closed .
- Emmings: I have a question . Item number 3 down there talks about
Hardee 's . What 's going on there just out of curiousity?
- Olsen : As far as I 'm concerned and with Paul , nothing concrete is
happening with that . It 's another Brad Johnson deal where he keeps coming
in with plans showing Hardee 's with Amoco but it 's nothing that 's really
being pursued at this time .
Planning Commission Meeting
April 18 , 1990 - Page 20
Krauss: That 's a tough one to figure because plans keep on appearing on my
desk . Hardee 's apparently has an option agreement for that corner . I 've
met with them once several months ago. They 're talking with Brad Johnson _
about putting together some sort of a comprehensive redevelopment plan for
that area . Brad 's been trying to put this together for quite some time and
it still hasn 't come together but the TI district needs to be amended so
that the possibility of this happening can be included . —
Emmings: Once it 's come up the idea of putting fast food restaurants into ,
zoning them down to a small area we 've talked about . We 've never really —
done it . I don 't know how much interest there is in that or whether people
want to see these spring up wherever they will and it will be too late to
do anything about it . I have some interest in talking more about having a _
place for fast food restaurants to be .
Ahrens : Eden Prairie .
Emmings: And I don 't know if other people do but if part of this is to
help Hardee 's come in down there , I don 't know that I 'm for it .
Krauss: Again , this deal keeps changing and I can't tell you for certain
what Brad Johnson 's asking for on this because I don 't understand where he
is right now but it was my understanding that Hardee 's in particular was
not asking for any HRA subsidy . The HRA subsidy was in there to acquire
and relocate Gary Brown 's car wash which is sitting where the Hardee 's
would like to go .
Ahrens: Do we really want a Hardee 's and an Amoco and a car wash right at
the entrance to our downtown area?
Krauss: The Amoco is a done deal . The Amoco is not part of this proposal .
Ahrens : I mean just as a big picture . You know all of them together .
Krauss: It 's a valid question .
Ahrens: That 's really junky I think . Across from the Holiday and the auto—
parts store .
Krauss: Then we did , there is an ordinance now that deals with the _
separation of gas pumps that followed because of that . Those two uses
could not occur in such proximity again . I think what did we apply , 250
foot separation if I recall right?
Batzli : I think it was more than that .
Krauss: 500 . _
Batzli : 500 . 250 to a residential .
Krauss: Right . —
Planning Commission Meeting
April 18 , 1990 - Page 21
Emmings : Can we , the HRA is planning three separate things here . Can we
- recommend approval of this plan for items 1 and 2 and omit 3? Or do we
have to take it all or nothing?
Krauss : I wish Todd were here to explain it directly but what I would
prefer you did is recommend approval of the plan . See approval of the plan
doesn 't mean that you 're recommending approval of that specific course of
action . It 's allowing the HRA to work with us and I 've been to HRA
- meetings where they 've been skeptical of the particular project the way
it 's laid out right now . But it 's clear that there 's some interest in
doing something with the City in that area .
Olsen: With the Hanus building .
_ Batzli : Is the Amoco deal though , is that a done deal regardless of
whether of . . .
Krauss: Amoco was approved outside of this redevelopment . It was
approved .
Ellson: Right now this couldn 't be allowed though and if we approve it it
- can be allowed?
Krauss : No , Amoco . . .
Ellson : No , the Hardee 's .
Krauss : Oh Hardee 's .
Ellson: I know the Amoco , we 've done all that . I mean that 's kind of what
Steve is getting at . Now we 're giving him an in so it 's a lot harder to
deny it than to not even have it be a possibility .
Krauss : Don , do you want to field that?
- Don Ashworth: The entire impetus for the plan amendment before you is
recognizing major changes in State law which basically prohibit the City
from making any additional changes within our existing tax increment
- district so there 's a number of projects that are shown in there that the
HRA may or may not get involved with . The Council may or may not approve .
The plan amendments are put forward to give the City the option to be able
to consider those projects or not . Chanhassen sits in a favorable
position . When the tax increment was first created it was a tool to help
stimulate economic development . Well , we 've done a better job of it than
most cities in the State and at this point in time , the City 's kind of
- changing the rules and saying well , maybe we didn 't really want you to use
it as extensively as you have . In the meantime , the City has a number of
projects , the HRA say , that are half done . For example , and let me say
that typically the HRA would not carry out a plan amendment until you had
the specific revenues in place and them come back with a plan amendment to
show the entire project . Now the State is saying , if you don 't have
_ something in your plan prior to May 1st , you 're not going to be able to do
it in the future . Well that poses a problem . The City owns HRA . Pauly 's .
Planning Commission Meeting _
April 18 , 1990 - Page 22
We own the Pony . The current plan does not have us acquiring Pryzmus nor
demolishing all 3 buildings . The plan amendment was put through to ensure
that we had the flexibility to take down that middle building and demolish —
all three . When it got into the project area over south of the railroad
tracks , the one you 're discussing , staff really was debating . What you
should include in there , what we shouldn't . There have been no hearings —
with the City Council . There have been no hearings with the HRA . I think
it is fair to say that both groups have a lot of concern over any of the
projects that come before them today . Any of Brad 's presentations , most of
which have been more or less . . .book of matches . One of the biggest —
expenditures that is in there for that size of roadway is the acquisition ,
removal of Ready-Mix The major dollars that you 're seeing incorporated
south of the railroad tracks is for that Ready-Mix acquisition. There are —
no dollars associated with Amoco . There is no . . .for dollars to potentially
acquire Gary Brown's property . His car wash . But if I 'm seeing the tone
of HRA and the Council , they 're really , the developer 's really going to _
have to demonstrate that that 's absolutely necessary before either of the
two groups . . . In the meantime , the plan has been prepared to give Council
and HRA that possibility .
Conrad: Okay . Does that answer your question?
Emmings: Well it 's one of those deals where he said so much I don 't know . —
I don 't know what my question was anymore . You snowed me Don . I 'll all
for TIF . I 'm all for buying up the Ready Mix . I 'm all against the
Hardee 's in that area or in that corner . I guess I was all that in favor
of doing this . —
Conrad: I think it makes sense . Just out of curiousity . Everybody has a
problem with what goes down there . What should go down there? Why not a —
Hardee 's? What 's supposed to go into this entryway to Chanhassen? Anybody
have any ideas? Planning Commission . Okay , just curious .
Ellson: We 'll know it when we see it .
Ahrens: Any other restaurant or commercial .
Erhart: Just to counter Steve , I like Hardee 's .
Conrad: See that 's a natural place for a fast food or a gas station . The —
challenge to us is , if we have some things that we think are appropriate ,
we should be talking about those things but it always comes out , I hate
that . I hate that but what is it that we really want? This entryway . We
talk about this entryway to Chanhassen . —
Emmings: I hate it when you ask questions .
Ashworth: I think the traffic setting could very well . . . If you think
about it , you cannot get into that property from the east side . TH 101
will preclude the . . .from the east . The west access point is terrible .
Conrad: To me it looks like a lousy location for a Hardee's . Brad says
Hardee 's wants to be there and I don't know . It just seems like a lousy
Planning Commission Meeting
April 18 , 1990 - Page 23
place for it but on the other hand , I guess that 's what engineering 's
supposed to tell us . Any other comments on this one? Anything else? It
sure makes sense that we give the City the opportunity to do that .
Councilwoman Dimler : Don , if the projects that are mentioned here , let 's
say that we would not approve this . Say we don 't want a Hardee 's but we
want to put in something else . Would this approval preclude us putting
something that wasn 't mentioned in?
Ashworth : No . Actually as long as you stay within the total dollars , you
could . One of them we looked at was this question , is Target going to be a
- reality . Is there a necessity for HRA and the City to become involved and
how do you potentially guard against or keep options open if the Burdick
property , you have Charlie James , you have the Ward parcel . The attorney
took the position that as long as the total dollars have been allocated and
talked about a project , if the project actually ends up let 's say over in
the Ward area and it ends up that the dollars that you used to straighten
out TH 101 , that 's a valid thing that can be done as long as you 've
outlined it . . .
Councilwoman Dimler : I wanted to keep the State from coming in and saying ,
- well that was approved in April and the . . .
Emmings: Ursula , I think in support of what 's here , the motion isn 't
specific about any projects at all . They 're only used as examples that the
HRA is considering so I don 't think our approval of this has anything to do
with specific projects . Is that right?
- Ellson: Maybe we should just add that?
Ahrens : Why can 't we just eliminate the Hardee 's name?
Emmings: Those are just given as examples in the staff report . It 's not
part of the motion . Here , are you ready for a motion?
Conrad: Yeah , I 'd like one .
Emmings: I ' ll move that the Planning Commission adopt Resolution No . 90-2
- finding Modification No . 10 of the Redevelopment Plan and TIF Plan
consistent with the City of Chanhassen 's Comprehensive Plan with a specific
understanding that the examples given in the staff report are not being
approved in any way by the Planning Commission .
Erhart : I ' ll second it .
- Conrad: Any other discussion?
Batzli : I 'm confused . As part of Modification No . 10 , I mean they discuss
- the examples within Modification No . 10 . I mean it 's not just in the staff
report . There are concrete examples listed in Modification No . 10 on page
4 .
Planning Commission Meeting —
April 18 , 1990 - Page 24
Ellson: He 's saying to permit doesn't mean we 're approving it is what he 's
saying .
Batzli : I agree but it 's stating that they 're currently under , they 're the
subject of negotiation and I just want to clarify that these are in the
Modification and not just discussed in the staff report before we vote on _
that .
Emmings: Okay . What can we do about that? What Brian is saying is
absolutely right . In the Tax Increment Financing Plan , that you 've got a —
copy of , Hardee 's is specifically mentioned as something that 's . . .
Ashworth: The allocation , and I 'll go back to the statement . . . As long as-.
they designated the type of project and dollars , if the project changes ,
you 're still alright . I don 't see a problem with the wordage of your
motion at all .
Emmings: There may not be but I can hear Hardee 's standing at the podium
saying , it said so right in the plan and you guys said the plan was okay .
Why , if we really think that 's not something we want to look at . On the —
other hand , is that something that 's within the Planning Commission 's
balewik or are we intruding on the perogatives of the HRA here or don 't we
care?
Ashworth: Well it 's kind of like the question posed earlier from the
citizens regarding the parks and who 's responsibility . You look to a
number of different groups . . . The HRA provides you advice as to how they —
feel the downtown should be redeveloped . However it is your comprehensive
plan that if you feel that amendments that they 're bringing in are not in
character with what the Planning Commission would like to see for the —
downtown area , I think that 's your perview to say no .
Emmings: Nobody seconded my motion did they?
Conrad: No .
Emmings: I 'm going to withdraw it at this point . Can I do that?
Conrad: Yeah , you sure can . Is there another motion? Oh yea you likes
Hardee 's to my right . —
Erhart: I was just kidding . I 'll take a McDonalds anyday . Are you trying
to make a motion to exclude the paragraph?
Conrad: I thought you may have a different motion .
Batzli : Well do we have to be Hardee 's specific? Restaurants . —
Erhart: What you 're talking about is excluding . . .
Ahrens: Can 't we just identify it by location , the area and not define any
of these?
Planning Commission Meeting
April 18 , 1990 - Page 25
Erhart : If you 're looking for approval to expand the TIF , why don 't we
just leave the proposal to them . Why do we need the references to
Hardee 's , Redmonds , West Chanhassen?
— Conrad : Yeah , I think that 's for the legislation from what I understand
for the purposes of the legislative intent .
Ashworth : If you , again talking this example , but if you use the Target
- type of development ends up going somewhere else and you find yourself in a
position that the only way you can make the new roads work is to use tax
increment , if you have not put into the plan a general description of that
- project , even though you moved it from one area to the other , you 're not
going to be able to do it . If you don 't like Hardee 's , you can replace
Hardee 's with retail development or just strike the word Hardee 's . Again ,
_ the major dollars under that section that are set up for Ready Mix and
maybe replace Hardee 's with Ready Mix .
Emmings: Ready Mix is there .
Erhart : Why don 't we just add some verbage that says , could include the
following but is not limited to or restricted to items ( a ) , ( b ) and ( c ) .
— . . . nobody can come in later and say we are specifically tied to those
particular projects and it would seem to me that that would solve the
problem you have with the legislature and also to prevent any of thes
projects from coming in and saying we 've given them approval . So Paul ,
does that seem reasonable . Can you come up with some words that gives us
the flexibility?
— Krauss: I 'd really rather defer that to the City Manager .
Ashworth : I don 't have a problem with that . So if I hear the motion
correctly , you 're approving it but then amending Section ( e ) there to
basically remove any reference to Hardee 's . . .
Emmings: ( h ) .
Erhart : I though you indicated that you wanted to leave those references
in there for the purpose of going to legislature .
Ashworth: I do but if you want to take out Hardee 's .
Erhart : No , I was just saying just change the wording to make sure that
we 've got the flexibility in there that later on that we 're not committed
to any .
- Conrad: Basically in your introduction under ( h) . You can leave the
examples ( a ) thru ( c ) there . That 's fine with you Tim as long as ( h ) , the
intro to ( h ) .
Erhart : States that we have flexibility in that and we are not committed
to those particular things and I think that resolves Steve 's concern that
these guys aren 't going to come in later and say well gee , this is the
amendment that we passed . So if things like include the following but are
Planning Commission Meeting
April 18 , 1990 - Page 26
not limited to or committed to or something like that . Steve , have you got
some words?
Emmings: No .
Conrad: I think include the following but not limited to sounds
reasonable .
Erhart: For the purpose of getting approval from the State , you have to
spell out some specific projects . Is that what we 're hearing? —
Ashworth: Right . And we can replace ( c ) for example and I don 't know
about the header there but just say , if the projects south of the railroad —
tracks , that being TH 101 and Great Plains Blvd . . . .
Emmings: It 's already got Amoco . It 's got the car wash . It 's got Apple _
Valley Ready Mix and Hardee 's all in there now .
Ashworth : I 'm saying is if we can just eliminate all of the references .
The only reference would just talk about the general project area and to —
include a statement saying it would include Apple Valley Ready Mix . But
otherwise there 'd be no wordage there regarding Hardee 's/Amoco/Car Wash .
Ahrens : Couldn 't we just change the wording of ( c ) on page 4 to read this
project may entail the construction of a new Hardee 's restaurant instead of
will? In the introduction it just says that the projects which are the
subject or current or upcoming negotiation . There are no commitments to
that .
Emmings: That 's good enough for me . That would satisfy me . I would —
rather see Hardee 's not mentioned but I think that 's a good alternative to
me .
Batzli : I think you should do that in the next several sentences though as
well . Everytime it says will . If a Hardee 's is included, it may have
whatever .
Ahrens: Right . The whole wording would have to be changed in that
paragraph .
Conrad: What do you want to do Steve?
Emmings: That sounds like a good alternative . I like it .
Conrad: Okay , do you want to amend your motion? No, actually you withdrew
your motion .
Emmings: Well I 'll make another motion. I 'll make the motion as suggested
by the staff with a change on page 4 , item H(c ) along the lines that was
discussed and suggested . Basically it would read that this project may _.
entail the construction of a new Hardee's restaurant . The rest of that
sentence staying the way it is and the second sentence would read, if
approved , the Hardee 's restaurant would have approximately 4 ,500 square
Planning Commission Meeting
April 18 , 1990 - Page 27
feet and the rest of that sentence as it is and that would be all of the
- changes .
Ellson : Second .
Resolution #90-2: Emmings moved , Ellson seconded that the Planning
Commission adopt Resolution No . 90-2 finding Modification No . 10 of the
Redevelopment Plan and TIF Plan consistent with the City of Chanhassen's
Comprehensive Plan with the following changes to paragraph H( c ): changing
the word `will ' to may and changing the second sentence to read; If
approved , Hardees would have approximately 4 ,500 square feet . All voted in
- favor and the motion carried.
- Conrad : That 's the longest we 've ever talked about one of these .
Emmings: That 's because Todd wasn 't here .
- Conrad : Do you need a signature of mine on this? Normally the Chairman
has to sign it . Is there an official document that you want me to sign or
can I just sign what 's in here?
Krauss : I 'm not sure .
_ Conrad : Anyway , I 'll leave you this and if this works , that 's fine .
Otherwise , normally somebody gets to me with a document that I have to
sign .
- APPROVAL OF MINUTES: Emmings moved , Erhart seconded to approve the Minutes
of the Planning Commission meeting dated April 4 , 1990 as presented . All
voted in favor and the motion carried .
CITY COUNCIL UPDATE:
Krauss : At the April 9th meeting the City Council approved the wetland
alteration permit for filling and alteration of the wetlands along Lake
Drive . That was something that you had raised some questions about
relative to the trade-off of wetland areas . The City Council raised
- similar concerns . There 's a related matter with that and that is the
McDonald 's proposal which would also affect one of those wetlands .
McDonald 's has revised their plan so they are not filling or altering the
_ wetland at all . There is still a variance for wetland setback . There is
an existing variance there . It 's only 55 feet from the wetland now . Their
plan as they revised it would have resulted in a 10 foot setback and we 've
asked them to revise their plan again to increase that so it 's roughly
comparable to the existing variance there and we 're making that
recommendation to the City Council . They have revised their plan by the
way in all the other respects that we asked them for so we 're expecting to
- go to the Council with a positive recommendation . The Roberts Automatic
site plan was approved by the City Council . However , Councilwoman Dimler
raised a concern that , to paraphrase it basically , if there 's HRA support
for a project , does the City have the right to ask for better than normal
or have higher than normal expectations for architecture . You may recall
Planning Commission Meeting
April 18 , 1990 - Page 28
that I raised some concerns with the quality of design but basically said
they met the ordinance so we 're sort of limited in what we can do .
Councilwoman Dimler 's suggestion was I thought well placed and it was
approved contingent upon them improving the building facade in some as of
yet unspecified way . I 'm going to meet with their architect and see what
kind of architecture we can get .
Conrad: Was it concrete?
Krauss : It 's tip up panels . There 's not a whole lot of definition though —
in the office area and oftentimes you can get a lot of glazing or interest
there like Empak did and the Roberts site didn 't really do that . We 've had
the City Council authorize the consultant to help us with the consideration_
of a storm water utility fund or other funding mechanisms . We keep on
talking to you about the storm water management plan and the wetland ,
revised wetland protection measures . Those all get rolled into this
financing mechanism . Once we have a financing mechanism on stream , we can —
do the work that we need to do . Zimmerman Farms was finally approved .
Preliminary plat . What was ultimately worked out and it went around and
around for quite a while , was a system of looped roads that in the future _
is probably developers will provide a loop back from the end of Dogwood and
the end of Crimson Bay merging with a new entrance onto TH 41 . So we think
that long term , the access needs of that area will be served . Lake Riley _
Woods preliminary plat . The replat . That was something that you had
recommended denial of I think . They 've pulled from the agenda . They
haven 't gotten back to us yet but apparently their attorneys are talking to
one another trying to work that out . That was that one with the house and —
drainfield are in the wrong place and the road 's in the wrong place . The
zoning ordinance amendment requiring posting of signs at developments was
given first reading . We also had scheduled discussion on the variance , _
amendments to the variance ordinance which you had recommended approval of .
The Board of Adjustments , I scheduled an earlier meeting so I could sit
down and talk to them before the City Council , raised a number of concerns
with philosophical outlook of the ordinance and how it was structured . Jay—
Johnson then said that because of his concern , he thought it was
inappropriate for the Council to discuss it and they 're holding that over
for a joint meeting , which I think if May 14th scheduled for so I ' ll keep —
you posted on that and we 'll see what develops from that . One of the
things in your packet is I received a copy of a petition which , it stems
from the meeting that we had , the joint meeting or the neighborhood meeting_
on the guide plan .
Batzli : Wasn 't that before?
Krauss: I believe , it wasn 't dated but I believe that it appears , from
reading the petition , that the petition came out in advance of that
meeting . That most of those questions were raised had answered I hope
satisfactorily at that meeting . I haven 't seen anything about that since
but I just wanted you to be aware of it . I 've also met with Bob Ostlund
from Chaska Schools relative to the siting of the future schools in the
city . He 's indicated that there is a desire to site possibly a grade
school and a middle school . The district doesn 't have funding for it now .
City support of a site and potentially acquisition and holding it for the
Planning Commission Meeting
April 18 , 1990 - Page 29
school district would tend to strongly influence their decision . Bob is
- coming over here with the School District 's architect on Friday and we 're
going to show him some maps and take him through some sites . The
probability is we won 't be able to say specifically the grade school should
be here but we ' ll have to do it like the neighborhood parks , do a search
area type of approach . I guess that does it .
Conrad: Good job Paul .
OPEN DISCUSSION:
— Conrad: I 'm trying to get out of here relatively reasonably tonight .
Steve , you 're leaving right?
Emmings : I should . I have a long drive in the morning .
Krauss : Would you like to talk about yours first? I don 't know , it 's just
a suggestion .
Emmings : I don 't care .
- Conrad: They 're both really important issues . Let 's start with Steve 's .
DISCUSSION PAPER REGARDING COMMISSIONER EMMINGS NEW APPROACH TO CREATING A
"BLENDING" ORDINANCE .
Krauss : Basically as you 're aware , we 've talked about a blending ordinance
on a number of occasions , most of which predate my coming to the City .
- Basically , it 's our understanding that the intent of the blending ordinance
is to mitigate the impact of new development which develops typically to a
15 ,000 square foot lots . Where it interfaces with old developments which
- may have been at a larger lot size . In the interest of being upfront , I
guess philosophically staff has always had some questions with the
ordinance and we continue to question the equity of some of it but we 've
talked it over with the City Attorney he believes that the approach that
- Commissioner Emmings developed is one that could be upheld and because
you 're interested in doing this , we want to work to pursue it and that 's
why we put together the paper tonight . Commissioner Emmings did come up
- with a unique approach . In the past we had tried to develop a ratio or
formula that would say you do x amount of blending at this site because and
basically found it was impossible to do that . Commissioner Emmings
approach is basically I know it when I see it and I think you paraphrased
it quite well . And again , it 's something that the City Attorney felt that
in the subdivision ordinance we could uphold . I guess I 'd like to ask you
to consider two modifications to it though . As I tried to apply the draft ,
- there were a couple things that became clear to me in discussing them with
the City Attorney . As currently proposed , the ordinance doesn 't
discriminate between large lots that will ultimately be subdivided and
- those that won't . I think it 's am important distinction to make . I don 't
want to belittle anybody coming here and swearing on a stack of Bibles that
they ' ll never develop but I guess to be honest , we always assume that
_ sooner or later they will . I think the only time a blending ordinance or
blending requirement should be imposed is when it can be demonstrated that
Planning Commission Meeting _
April 18 , 1990 - Page 30
the lots that you 're protecting are permanently in that status . Now they
can be in that status because it 's 29 ,900 square feet and it takes a
variance for lot area to subdivide it or because of terrain that there
simply isn 't any way to divide it . And there 's any number of ways of
proving that . There 's a concurrent issue with what happens when you have a
subdivision that 's adjacent to the MUSA line . I 'd like to add something in
here that I think being adjacent to the MUSA line should be excluded from -
the blending . It shouldn 't automatically trip the blending unless those
lots can be further subdivided . MUSA line is a temporary fixture as we all
know and sooner or later it probably will be relocated . I guess this isn 't —
to diminish the importance of the blending approach . It 's just to
hopefully introduce some equity into the thing and account for those
situations where we do believe that further development will take place .
The second one , and I hadn 't had a chance to speak to Steve about this but
it appeared that the way it was worded , that the blending requirement would
be applied to all the lots in a subdivision . That once you legitimately
trip the blending standard , that if you had a 100 acre plat , that all the —
lots in there would have to have some reflection of this blending , or it
could be construed that way . I guess as I read it , I didn 't think that was
necessarily the intent and it also causes problems because is somebody —
comes to you and wants to develop a 100 acre tract and you 're going to say
everything in that 100 acres needs to be blended and somebody comes to you
in the same , gets the same property line and says I 'm going to develop a 2 _
acre tract and everything beyond that avoids the blending requirement , it
becomes inequitble . So we 've introduced or suggested two modifications
that we think address the issues that we 've raised and basically with those
modifications , well we 're looking for your guidance on this but we think we -
can put together , we know we can put together an ordinance that the City
Attorney 's comfortable with and one that we think would be workable . With
that we basically put this together as a position paper if you will to get _
your reaction and we 'll come back to you with whatever ordinances you
direct .
Conrad: Okay . Thanks Paul . Reaction . Joan , start with you . What do you -
think?
Ahrens : Of the changes? —
Conrad : No , just the ordinance period . Do you want to . . .
Ahrens : We have discussed this in the past haven 't we?
Conrad: Well we have .
Ahrens: You want to talk about it again . I thought Steve 's draft of the
ordinance was very good . It seemed to address the issue that we were all
concerned with . I understand the revisions that Paul made , or staff made , -
and it does clarify a couple issues . I never interpretted it the way Steve
wrote it to mean that all lots within a subdivision would have to be
blended at some point . Is that what the concern was? I interpretted it as
just the lots along the periphery would have to be blended in with the
neighboring property . But obviously that wasn 't clear to everyone so the
wording here seems to clarify that point . I don 't have any problem with
Planning Commission Meeting
April 18 , 1990 - Page 31
the ordinance . I think it 's fine .
Batzli : Well I think that raises the philosophical issue then of what are
we trying to do with the ordinance because if you 're trying to get a true
blending , there would be kind of a trickle down through the development
from a large acreage or large lot as opposed to just requiring the
periphery to kind of match up and then the developer comes in with 15 ,000
square foot lots after he does one row along the periphery of large lots .
- And so is the question , or is what we 're trying to do to protect the
homeowners with large lots on the periphery of a lot that 's going to be
developed or is it to get a true blending of lots throughout the
- subdivision that 's coming in?
Ellson: I think the people that are coming in get that choice but it 's the
_ people who , earlier we were most concerned about the people who don 't get
that choice . It 's the people on the periphery that they 've been sitting
with this big lot and then the new ones come in at 15 ,000 .
- Batzli : Yeah , I agree with that . That from an equitable standpoint of I
bought my lot . I didn 't know they were going to put 15 ,000 foot lots next
to me .
Ellson: The next guy does know that when he 's buying his .
_ Batzli : Agreed but that 's fine from equity but my question is , from a
planning perspective is what you 're trying to do to protect that one group
of people with an investment along the periphery or is it to truly blend
lot sizes and go from a transition more smoothly?
Ahrens : Hopefully it would be the second .
Batzli : Well I would hope so but then this wouldn 't do that necessarily .
Emmings : This is aimed at doing the former .
- Batzli : Yeah . This is an equity issue and that 's the issue I wanted to
raise . The other thing I think is , what the heck was it now . Oh , it will
come to me again . I guess the question I had , it 's in Roger 's opinion .
- He 's talking about identical language that 's currently in the code I
believe and he said that he has sustained denial of that but then he says
the blending ordinance would better spell out what is required and make the
requirement easier to implement and enforce . The question is , have we done
that by this ordinance? It still seems to me that anything we do , even
though we require justification the question is , is it any easier or is it
going to be just kind of an arbitrary thing that we impose .
Krauss: Well , in talking to Roger , I think the language , I think it was
Lakeville 's ordinance that he upheld and it was kind of in the mom and
- apple pie section of the ordinance that said the City has the right to
establish a larger lot size and it didn 't say why . What you were trying to
accomplish or how it would be applied . With either approach , with Steve or
_ with the modification we proposed , you 're laying that out in much more
specifically than that Lakeville ordinance did which in Roger 's opinion
Planning Commission Meeting _
April 18 , 1990 - Page 32
gave even more meat to it and made it more defensible .
Batzli : But what 's the standard? I mean Steve normally goes for a mom and_
apple pie statement and then you get into the meat of it so that when
you 're interpretting it , you understand what you 're trying to do. Maybe
that 's what this is missing . In part it 's probably because it jumps around
through the Code so it 's not laid out in a nice neat section that this is —
the blending section .
Emmings: Yeah , I was looking for a place to put in kind of an intent —
statement and couldn 't find a place so I agree with you on that .
Krauss : There is a risk of arbitrariness with any of these things and —
I mean we tried to point it out . Short of having a formula that says thou
shalt do it here because . We 've already concluded that we can 't come up
with that . You always run the risk of applying something arbitarily .
I think you run a greater risk of that if you don 't specifically or attempt
to specifically limit or say exclusively where this blending ordinance
might apply . A for instance . Somebody comes in with that 100 acre tract .
They 're adjacent to that large lot area . You have a meeting like you had —
tonight where everybody opposes any development at all . Do you then say
that every lot in that 100 acre tract has to be 29 ,000 square feet? Or
that , you start with 29 ,900 and the next one 's 28 and the next one 26 or _
something like that . Frankly I have a problem with that premise . I think
it is very difficult to administer . It opens the door to being very
arbitrary and it undermines the intent of the single family district .
We 're willing to concede that there 's. a valid concern for the direct impact—
of somebody who has a larger lot who has development going on adjacent to
them . But I grow concerned with the assumption that they have the right to
not only dictate what interfaces directly with them but what also happens —
down the street .
Batzli : Ripple effect throughout the property . The problem I have is that
if in fact let 's say you , as by way of example , let 's say you have a 2 1/2 —
acre lot development that you 're going to be abutting . The premise would
be that you 're not going to go any larger than like 29 ,900 or require them
to go any larger than that correct? —
Krauss: Well frankly you mentioned that Brian , that 's something that Roger
suggested and he suggested it to me late . It didn't make it into this but _
he suggested that we put a cap .
Batzli : But at that point , if we did that and we had a 29 ,900 cap for the
lots which abut the 2 1/2 acre lots , after that it would be your feeling
that they could put in 15 ,000 square foot lots after they have . . .
Krauss: Yeah , because you 're not impacting any existing homeowners . I —
mean these are the people who are moving into this subdivision who know
full well what 's the neighboring property .
Batzli : What 's that do from a planning point of view? I guess there was
one transition strip in there but from a planning perspective , wouldn 't you
rather make it more gradual?
Planning Commission Meeting
April 18 , 1990 - Page 33
- Krauss : No , in fact from a design perspective , it makes it incredibly
difficult to get a transition uniformally across something . You can do
that if you 've got a cornfield in Kansas that doesn 't have any creeks or
wetlands or anything else but with our kind of terrain , uniformity is
impossible .
Conrad: I think that 's the developer 's problem . The developer 's going to
- do what is going to sell his property and I don 't want to get into that .
All I want to do is protect who 's there already . You 've got to let the
developer do what he thinks is right that can sell his property and I guess
- I personally don 't have a need to blend internally as long as it meets our
other ordinances . I do have a definite need to try to blend with the
existing parcels .
Batzli : Those were my comments .
Ellson: I think it was a heck of job trying to do it . I still think that
- it 's going to be really hard to enforce . I know it goes against our grain
because here you are trying to plan as best you can but I don 't know . The
only way somebody could be totally sure that they 're not going to get
- something 15 ,000 square feet next to them is by buying it or something like
that . I think they sort of , if it 's zoned that way when they look into the
ordinance . Whether they look into it or not I guess is up to them but they
_ know that that possibility is there . I don 't know how many this is going
to affect that we still out there , especially the part that it has to be
demonstrated that the lots on the periphery cannot be further subdivided
because I 've seen in most of the cases the people that- are complaining
- could easily tomorrow turn theirs into 5 lots and they 'd be here talking to
us about it . And now we 're turning them into , you won 't be able to
subdivide later on or the next person that you 're trying to sell to that
- wants to do that . I just think it 's a good try but I don 't think we can do
it . I would have a hard time justifying it with one guy and trying to look
at another one and saying this is a little different so you don 't have to .
So I guess I 'm going to . . .
Emmings: I don't know if this does anything or not but I guess the
underlying notions were that this was something to be done on a periphery
- of the new subdivision . And the other thing was to get something in the
ordinance so that when a developer comes in and says what do I have to do
to put a new plat in this town . What are the things that I have to take
_ into account and if this language is in there , or if the staff can say
don 't forget this . You 've got to be careful on the edge of your
subdivision that you 're not upending existing subdivisions , that would give
them something to jawbone with . I think it 's, well this is the third or
- fourth attempt we 've made at trying to put something into the ordinance so
obviously it 's hard to do but I hope that maybe this would work . I think
it could .
Erhart : I appreciate the effort Steve 's put into this . I know a couple of
us . . .take another jab at it . I view it also as not something that 's going
_ to really regulate but it 's just going to give us , if it was in there , just
some leverage to coerce developers into taking into account the
Planning Commission Meeting
April 18 , 1990 - Page 34
neighborhood developments . On the other hand , I guess my feeling about
land use is that I would never want to see the City in a position of
encouraging lots larger than half an acre . By the same token , well I ' ll
just state that as a general . I think 22 ,000 square foot lot is , that 's a
big lot . If a developer wants to come in and make a subdivision full of
22 ,000 square foot lots because he feels there 's a market for it , that 's
just fine .
Emmings: This from a guy who lives on how many acres?
Erhart : I 'm a tree farmer okay . It 's just , my fundamental feeling is that
government should not be in a position of encouraging excessive land use
for homes . Individual homes . I think we found ourselves in that position -
since I 've been on this commission . By the same token , if this is going to
be used for that . If we 're going to be out there throwing some 29 ,000
square foot lots in there when the market really wants 22 ,000 square foot
lots , I 'm totally opposed to that . If I go back to the 3 1/2 years that
I 've been on here and try to define where the problem has been , it 's been
with those lots . Those landowners where there 's a bunch of 22 ,000 to
25 ,000 square foot lots . In an older neighborhood that you 're right , could
not be subdivided and all of a sudden we 're coming in with a whole series
of 15 ,000 square foot lots . So I think if we 're going to put this in , I
think we ought to have a limit . I think the limit ought to be 21 ,500 or
22 ,000 . Not 29 ,000 . Because I think that would solve , in those few cases
where we had complaints where the old neighborhoods came in here can said ,
gee whiz . You 're going to diminish our land values because now we have a
whole neighborhood of 22 ,000 to 25 ,000 square foot lots and you 've got all -
these 15 ,000 coming in and maybe two 12 ,500 's in a PUD . A 22 ,000 limit
would have solved those people 's problem and at the same time not putting
the City in a position of creating lots larger than they wanted . I just _
can 't imagine using the example that you had a 2 1/2 acre lot and saying
well gee whiz now you 've got to have 29 ,000 acres in the first tier and
then 15 ,000 in the second tier . In the first place , you could never design
a road system around that . -
Krauss : It 'd be tough .
Erhart : Pardon?
Batzli : Slip of the tongue . You said 29 ,000 acres . That 's big .
Erhart : 29 ,000 square feet . So those are my comments . I think the
concept 's valid . I think there 's a lot of statements that say well , since
there 's no specifics or we 're not going to enforce means it 's useless . I -
don 't agree with those comments . I think anytime you have wording , even
adding some examples in this thing is helpful to the Planning Commission
staff to coerce developers into ultimately ending up with a plan we like . _
By the same token , let 's make sure we 're not finding ourselves in a
position of artificially creating big lots .
Ellson : Well you just arbitrarily feel that a half acre is it? I mean
where did you pull 21 out of or 22? What if the market is 15?
Planning Commission Meeting
April 18 , 1990 - Page 35
Erhart : I think the City , we 're protecting the neighborhood but at some
- point you want to stop .
Emmings: You 've got knowledge that 22 , your figure of 22 is just as
- arbitrary as 29 ,500 . They 're all arbitrary .
Erhart : It is except when you look around . When you look around and you
see the size of the lots coming in here today , they generally fall between
15 ,000 and 22 ,000 so that tells you that 's where the market is . If a guy
wants a high quality . . .
- Emmings: That tells you how a developer maximizes his dollars . That
doesn 't tell you where the market is .
Erhart : It might be but if a guy has a wooded area and he comes in with a
22 ,000 square foot land because that 's the upper end of the market today .
Emmings : I don 't know . You may be right .
Erhart : That 's what I 've seen . That 's what we 're seeing .
- Emmings: No , what we 've seen is not necessarily what the market is . Maybe
the market that 's being built out here right now but that doesn 't mean ,
I mean you can go other places and see other sized lots . You can see 2 1/2
acres in southern Chanhassen and people are building down there so I don 't
think it 's all arbitrary Tim . You 've got to give me that .
Erhart : No , no . No , I don 't think it is . A 2 1/2 acre lots because the
- City said they 're going to be 2 1/2 acre lots . If you would go down and
poll the people buying 2 1/2 acre lots , I believe that 80% of them would
have been happier with 1 acre lots .
Emmings : You may be right .
Erhart : The only way they could get over 15 ,000 square feet was to buy the
2 1/2 or 22 ,000 square feet . But most people who want big lots would
prefer to have 1 acre because they can mow it . They can take care of it .
And I 'm just saying , well anyway .
Conrad: Are you interested in pursuing this issue?
Batzli : Excuse me? I 'd love a 2 1/2 acre lot .
Ellson : But you really wanted 1 acre .
- Conrad: Not Tim 's point but specifically the blending .
Batzli : Yes .
Conrad : Okay . Even though we 're talking about the periphery .
Batzli : Yes .
Planning Commission Meeting
April 18 , 1990 - Page 36
Conrad: Okay . Question Paul . In terms of your example where it couldn 't
be divided again . A 45 ,000 square foot lot could be divided again so how
are you going to preclude me , and therefore based on your new comment is ,
that 's exactly the situation that I have a problem with . It 's the 1 acre -
abutting the 15 ,000 and I really don 't have a real problem with the 2 1/2
acre . I think there 's some things that we just can 't really solve very
easily when you have a 2 1/2 acre against anything . I don 't care if we put _
a 22 ,000 square foot there . They 're not going to be happy . I don 't have a
solution for that one but based on what you 're telling me , an acre is going
to be able to be subdivided and therefore , based on that example and your
recommendation , this wouldn 't apply .
Krauss : Generally speaking yes . You can 't unilaterally say that an acre
lot can be further subdivided . I mean there may be instances where it
can 't . It could be a lot of wetland with a house sitting smack in the
middle and you can 't subdivide . See that 's where the work load increases
because we have to get that information but typically the reason why I was
saying 29 ,999 is because 30 ,000 you can divide it in half . But I think
Roger 's point about a cap , wherever that cap is is well taken because it
would place some strict limits on what our expectations are .
Conrad: I don 't want to drag this out any longer . I think we should pursue
it . At first I didn 't like it because it seemed so arbitrary . It seemed
like we were getting into never-never land but if we put a cap on it , —
I like that . I don 't like 22 ,000 . I like something bigger . I don 't think
22 ,000 solves anybody 's problem . If I 'm at 15 ,000 and 22 , I don 't know .
Yeah , I just don 't think 22 is the right number yet but we can debate that _
one later on . I would like examples like Tim said . Either for us to go
through them during a public hearing or as part of the document that this
is . I need to know what we 're looking at . I want a developer to see how we
would apply this particular formula . —
Krauss : One thing I think in the interest of fairness we need to do is if
we actually structure an ordinance and put this on an agenda , we should -
contact some of the more prominent residential developers in our community
and say look , we 're discussing an ordinance that affects your business .
What do you think about this? Let them take a crack at it .
Conrad: Yeah . We might as well .
Krauss : I 'd just as soon have a calm meeting but I think it 's the fair —
thing to do .
Conrad: Are we talking , is there a minimum size subdivision that we 're
talking about here? Are we talking about everyone that comes? Every
subdivision or should there be a standard where you don 't have to go out
and look? Are we talking about 4 pieces or everything?
Emmings: Let me add one little gloss here . The reason that the second
sentence , the second clause was in the first section here that bothered
Paul and Paul took out . It said that the proposed subdivision has lot —
sizes compatible with development in the general area in which the
subdivision is located . I had a specific one in mind when I did that and
Planning Commission Meeting
April 18 , 1990 - Page 37
that was the one that was approved on Minnewashta Blvd . . If you remember
there were 5 lots . Five 15 ,000 foot lots wedged into a property and it
was . . .
- Elison : It was across the street if I remember . . .
Olsen : No .
Emmings : And it was the general consensus of the Planning Commission that
it didn 't fit in the area .
- Batzli : Is that the steep one down to the lake?
Emmings : Well no . It sits up on kind of a hill and then the lake is
- beyond it but we approved those 3 lots because there was kind of no way not
to approve it and that 's the one I had in mind here . I guess when we 're
talking about the periphery , I 'm thinking more of developments like we 've
seen , the ore that came in next to where Jay lives over here . I can never
remember names of the subdivisions . Where you 've got rings of things .
That 's where the periphery language comes in but I thought for the small
one where there 's 4 or 5 lots where talking about the periphery doesn 't
- make any sense , then somehow they ought to somehow fit in with what 's in
the area in general .
- Conrad : I think you 're still right .
Emmings : So that 's what I was trying to get at there . I don 't think , I
obviously didn 't do a good job .
Krauss : Steve , in that case though , aren 't they across the street from
larger lots as well as being on the exterior , the north and the south side?
Emmings : Well the thing is , there 's no periphery . They 're all on the
periphery then .
Krauss : But the language , if it 's justifiable .
Emmings : Maybe that 's good enough .
Krauss: But there 's a point that I just realized too . That you may want
to set a bottom range on this . For example , if you have a vacant 30 ,000
- square foot plot of ground that happens to be next to a larger lot , are you
going to tell that property owner that you won 't accept any subdivision at
all because they can 't blend?
Emmings : Now wait a minute . Tell what property owner?
Krauss : If Ladd owned a 30 ,000 square foot lot wedged in between two
- 25 ,000 square foot lots . Current wording in the blending ordinance says
you could deny Ladd any subdivision at all because he can 't blend .
Emmings : If it was Ladd I would . I don 't know . That 's tough . That 's
tough .
Planning Commission Meeting
April 18 , 1990 - Page 38
Krauss: I assume we could put in some language that says that this
ordinance will not be used to preclude any subdivision potential or
something like that . —
Emmings: Yeah , I guess I basically feel that probably that person
shouldn 't be denied to subdivide that lot . _
Batzli : So you 're going to deny developers of large projects but not .
Ellson: But not the little guy .
Erhart: If that 's what you 're doing, then you shouldn't be doing this at
all . —
Ellson: That 's right .
Erhart : Then you 're treating people differently .
Emmings: No . You don 't have to be , you don 't have to always treat
everybody the same . That 's kind of a goal but if a result is nutty , you
don 't have to do it . You don't have to be dumb . You don 't have to , you
could be reasonable about it . I think this is directed maybe we 'll want to
say that . Maybe we somehow want to , maybe we ought to just forget the —
whole thing . Maybe we want to put it over but I 'm more worried about the
big subdivision coming in next to the existing big subdivision . Then I am
about the single lot wedged between two other lots .
Councilman Johnson: This conversation brought up an interesting idea .
What if when sewer becomes available in Timberwood . 4 or 5 of these all
have 3 acres . . . —
Ellson: That 's exactly what will happen .
Councilman Johnson: Decide to go to 15 ,000 acre lots right in the middle
of all these 2 1/2 acre lots and the rest of these people don 't . I mean
we 're getting a lot of these subdivisions where that could get , I mean one
guy could have 2 1/2 acre lot could split it off into 3 or 4 lots . Right —
in the middle of a subdivision of 2 1/2 acre lots . And when you start
interspersing $500 ,000 .00 homes with $50 ,000 . . .
Emmings: Well see , that might be a place where you could use this language
to say we 're not going to let you do that . We 're not going to let this go
down to 15 ,000.
Councilman Johnson: And that 's going to be a problem for Chanhassen many
years from now when the southern side starts getting sewer with all of
these 2 1/2 acre lot subdivisions . Some people are going to save some —
dollars . . .
Ellson: Do you want him to look at caps and things like that? I think , we —
go through this every time and it keeps coming up .
Planning Commission Meeting
April 18 , 1990 - Page 39
Conrad: Well it 's a tough issue but your choice is not to deal with it .
Ellson : Well I agreed to try to take a look at it and I think we have and
I think we 're coming closer to the conclusion nobody wants to make and that
- is , no , it can 't be done . I don 't doubt other cities have tried to do it
too . It would be a wonderful wish list but awfully hard to enforce and too
many exceptions to the rule and taking away people 's rights . I just think
how many times do we have to rehash it? You just don 't want that to be the
answer but , there 's got to be another way .
Batzli : Why don 't we just raise the minimum lot size from 15 ,000 upwards?
Conrad : Well that would solve it . Well it still wouldn 't .
- Krauss : It wouldn 't solve it , it would defer it .
Conrad : Next step . Should we just defer making a decision right now and
go through an exercise whenever we can reschedule it and look at practical
examples of how this would work? Should we have staff develop , based on
our comments , a draft ordinance and hold a public hearing? I 'd rather not
do that one .
Batzli : I 'd prefer to fine tune it a little bit more . If there 's a public
hearing .
Emmings : We 're not ready for that .
Conrad : Yeah . So what would you folks like to do?
Ellson : Kill it .
- Batzli : I would like to see staff work on it a little bit . I don 't know
that it should be our highest priority with the Comprehensive plan and
things but I 'd like to see them continue to work on it and come up with an
_ upper limit and potentially a lower limit as to when it would apply and if
there is a rational basis to do those two things as well as formulate an
intent statement and come up with wonderful examples . Not much .
- Krauss: Well those questions also raise questions that I think I need to
pose to Roger and see if he still buys the legitimacy at that point .
- Batzli : Well the cap he bought .
Krauss: The cap he suggested .
Batzli : The minimum size he might have a problem with you 're saying?
Conrad : Why don 't you put a little bit more energy into this one Paul for
- us . I don 't know how much we 're talking about . I would like to bring it
back with comments from Roger on some of the specifics and maybe your
reaction to some of the things that we 've had but I would like to go
through some examples . We go to the board and just play out how it would
work with different configurations of developments or subdivisions that
Planning Commission Meeting
April 18, 1990 - Page 40
might come in so we can see how we would react to it . Just little play
script or whatever . Just so we know what this would mean . How we would
handle it when it came in. It 's 10:00 . Steve is leaving . What should we
do with the next item? The Business Fringe District .
Emmings: It 's real important and it 's real hard . I don't know if you
people are going to stay here real late but I sure would like to have some —
input in here but I do have to go .
Erhart: Why don 't you give us your comments? —
Conrad: I really have to get out of here .
Ellson: I think it deserves everybody's comments .
Krauss: We could reschedule it for the next meeting .
Conrad: Are we time sensitive on this because this is a real important
issue . I really want to get into this . I don 't feel real good about
skipping it .
Krauss: There 's nothing happening that 's going to affect anything and the
grading ordinance is proceeding on it 's own relative to Moon Valley which
isn 't in the district anyway .
Conrad: Okay . Do we have time on our next agenda to look at it?
Krauss: I think so.
Conrad: Okay , let 's do that . Any other discussion? Any other items?
Ellson moved, Emmings seconded to adjourn the meeting. All voted in favor
and the motion carried. The meeting was adjourned at 10:00 p.m. . —
Submitted Paul Krauss
Planning Director —
Prepared by Nann Opheim
_stir
SOUTHWEST METRO TRANSIT
7600 Executive Drive
Eden Prairie, MN 55344
(612)934-7928
April 23, 1990
TO: Don Ashworth, City Manager, City of Chanhassen
FROM: Beverley Miller, Transit Administrator
SUBJECT: Park and Ride Lot Planning Study
Ridership on Southwest Metro's express route service through Chaska, Chanhassen, and
Eden Prairie has grown from 8000 trips per month in 1986 to over 20,000 in 1990.
This rapid increase in ridership, coupled with the elimination of park and ride lots along
major roadways, has greatly affected our ability to provide adequate park and ride
facilities.
The Southwest Metro Transit Commission recently hired the consulting firms of LSA
Design and Hoisington Group Inc. to help formulate interim and long-term plans for
creating park and ride lots for our express route service. Another goal of this study is to
coordinate our plans for park and ride lot development with major transportation efforts
underway in our area (such as T.H. 212).
Southwest Metro's future plans for park and ride lot development must carefully
consider highway construction projects and plans for light rail transit. These factors
are of prime consideration in determining the location, number, size, design, timing,
and cost of park and ride lots. In addition, we believe that a planning strategy increases
the likelihood that our plans will support and be supported by metropolitan area-wide
transit solutions.
The Southwest Metro Transit Commission is requesting your help in working with your
City Council, Planning Commission, and staff to obtain their input on the proposed plan.
This plan will include the formation of potential strategies to use in developing park and
ride lots including land acquisition, use of exactions, ordinance provisions, and
relationship to the City's comprehensive guide plans.
Enclosed is information about the study. I would like to work with you to set a date for
presentation to the Chanhassen Planning Commission. I will contact you in a few days.
Thank you very much for your assistance.
cc: Paul Krauss
SylArmin Al-Jaff
✓Jo Ann Olson
APR 2 41990
CI11 OF CHANHASSEN
. a _
.. •
L LAND USE CONSULTANTS
Hoisington Group Inc.
PROPOSAL
SOUTHWEST METRO TRANSIT COMMISSION
OBJECTIVES
1. To formulate interim and long-term/permanent park and ride siting
solutions reflecting an ever changing transit delivery system.
2. To improve service dependability and continuity and provide "what if"
solutions in the event interim lots are lost.
3. To formulate a strategy for plans implementation with emphasis on the
acquisition of park and ride lots.
4 To coordinate plans with RTB/MTC and LRT to increase the probability
that SWMTC proposals will support and be supported by long-range
Metropolitan-wide transit solutions.
J3ASIC SERVICES WORK PROGRAM
The Work Program is proposed to consist of the following tasks:
1. Data Collection and Review. This task will include an evaluation of all
background information to be provided by the Commission Staff
including existing bus service and routes, ridership, ridership survey,
existing park and ride lots, agreements, etc. It will also include the
collection of information from various public agencies regarding
available park and ride lot sites, population, land use, household
distribution/densities, employment, LRT plans, highway improvement
plans and their timing, traffic, comprehensive plans, zoning and Golden
Triangle TMO plans and surveys. This will include an evaluation of
how LRT may affect future park and ride service.
7300 Metro Blvd. • Suite 525•Minneapolis, MN 55435•(612)835-9960
•
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— 2. Mapping. This task will include the preparation of base maps upon
which will be rendered background information and park and ride
plans. Information to be mapped will include proposed LRT routes
and stations, land use, population densities, ridership and employment
centers to be used in evaluating alternative future commuter service
routes and parking lots. .
3. Evaluation of Alternative Future Commuter Routes and Land Use
Compatibility. Considering all of the above, this task will determine
where commuter routes will be located over the long-term (TH 212,
TH 5 or Town Line Road corridors) and how future transit systems
should be coordinated/interconnected to maximize performance and
efficiency. This will include an assessment of how local service will
have to change over time, if at all, to respond to LRT. It will also
include consideration of reverse commute services and solutions to
improve land use and transit compatibility in suburban settings
(setbacks, clustering of development, etc.). This task will essentially
identify the evolution in transit services the Commission can expect to
see between now and the introduction of LRT.
4. Development of Site Screening Criteria and Suggested Goals and Policies.
This task will be done in conjunction with the Commission and its Staff
and will involve the identification of size, location and spacing criteria
for park and ride lots plus goals and policies related to public agency
responsibilities for the acquisition and financing of park and ride lots.
5. The Identification and Evaluation of Target Areas and Sites. This task
will include the identification of park and ride target areas and the
evaluation of those areas to identify park and ride sites. This task will
also include consideration of integrated park and ride lots with LRT
stations and the establishment of other symbiotic relationships.
6. Formulation of Plans and Strategies. This task will involve the
formulation of potential strategies for the funding of land acquisition
for the park and ride lots including the use of exactions, ordinance
provisions, etc. The purpose will be to identify the respective roles of
public agencies in the provision of sites. This task will also include the
development of a physical plan for park and ride lot locations which
will illustrate interim and long-term siting solutions and their phasing.
2
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7. Preparation of a Written and Graphic Report Document. This task will
include the preparation of preliminary and final report documents to
be reproduced by the Commission and including but not limited to the
following contents:
a. Background, Findings and Conclusions
b. Goals, Policies and Standards
c. Transit Service Evolution
d. Recommended Land Use/Transit Compatibility Standards and
Guidelines
e. Interim and Long-Range Plans for Park and Ride Lots
f. Implementation Strategy •
8. Meetings. Throughout the course of the process the Consultant Team
will meet with officials from the three constituent Cities, MnDOT,
RTB/MTC, Hennepin and Carver Counties, the Metropolitan Council,
City Councils, Planning Commissions and HRA's, and the Southwest
Metro Transit Commission and its Staff as appropriate to collect
information, take input and present plans and strategies. The fee
proposed is based on the following anticipated meetings:
AGENCY #MEETINGS ESTIMATED
City Staffs (2 each) 6
Chanhasen Council/Planning Commission 3
Chaska Council/Planning Commission 3
Eden Prairie Council/Planning Commission .3
RBT/MTC
Hennepin County 1 •
Carver County 1
Metropolitan Council 1 -
MnDOT • 2
SWMTC 3
SWMTC Staff 5
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