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PC 1998 10 07CHANHASSEN PLANNING COMMISSION REGULAR MEETING OCTOBER 7, 1998 Chairman Peterson called the meeting to order at 7;00 p.m. MEMBERS PRESENT: Alison Blackowiak, Allyson Brooks, Craig Peterson, LuAnn Sidney, Matt Burton, Kevin Joyce, and Ladd Conrad STAFF PRESENT: Sharmin A1-Jafl] Planner II; Cynthia Kirchofl] Planner I; and Dave Hempel, Asst. City Engineer PUBLIC HEARING: REQUEST TO OPERATE A FAST FOOD RESTAURANT (SUBWAY) AT THE SEVEN FORTY-ONE CROSSINGS CENTER ON PROPERTY ZONED BN, NEIGHBORHOOD BUSINESS DISTRICT, FRAN FAGERSTROM. Cynthia Kirchoff presented the staff report on this item. Peterson: Questions of stafl'? The only one I had is, they currently have trash outside? Are we asking them to change? I know what the code is but are they going to... or not? Kirchoflk Maybe we should ask the applicant. He is here. Peterson: All right. Fran Fagerstrom: ... no plan on making that indoor trash now. The plan was... 400 square feet off the restroom.., so we do have a difficulty. Peterson: How can, well. Let's hold off on that for a second. Other questions of stafl'? Fran Fagerstrom: If I could just make a general comment. I understand that there's concern with some trash that the neighbors apparently, there's a letter that's.., odor from the restaurant... Peterson: Are there other issues other than the trash that you disagree with staff on? Fran Fagerstrom: No, I think I don't see a problem with the trash as being an issue.., it's not from inside the mall... Peterson: The other restaurants currently there and their services, everybody has exterior trash? Fran Fagerstrom: Yes. They call a corral. Peterson: Well based upon that stafl] could you reflect on that? It seems a little onerous to change at this point in time. Planning Commission Meeting - October 7, 1998 Kirchofl) That was the trash enclosures inside was based on the conditional use permit for Happy Gardens II. They are required to have all their trash indoors and I did recently send a letter to the manager of Seven Forty-One Crossings and the operator of the restaurant informing them of that. In 1991, when their conditional use permit was approved they were required to have all their trash inside the building. Peterson: As was the case with Subway when it was... ? Kirchofl) Subway was approved in that shopping center in error. It wasn't permitted in the district when the building permit was signed so. Peterson: This item is open for a public hearing. Sidney moved, Brooks seconded to open the public hearing. The public hearing was opened. Peterson: Anyone wishing to address the commission, please come forward and state your name and address please. If not may I have a motion to close the public hearing. Brooks moved, Joyce seconded to close the public hearing. The public hearing was closed. Peterson: Matt. Thoughts on this. Burton: Well I'm struggling with the trash issue right now. The applicant obviously planned to moved thinking that the trash would be outside and even though staff said that they informed him that it would be inside going forward, stated that he didn't realize it until just before he came in here. So I think it creates a hardship for the applicant to force the trash to be inside at this time. But however I can see that's what's required so I'm struggling with that. I'm guessing that, I don't know if the report states why the move is being made but he probably wouldn't have bothered making the move if this was going to be the case so I guess I'm leaning towards allowing the trash to remain outside and figuring out a way to address that down the road. Peterson: Okay, let me pause for a second and ask one more question of stafl2 To the best of your knowledge, did the applicant, was the applicant in possession, was there an application process to do the build out and what's staff report to the building permit. Siting... that the enclosure had to be inside or not. Kirchofl5 No. The building permit was actually approved. I did talk with Fran. It was probably 3 or 4 months ago. He indicated he was going to be moving in the center and I told him that I would talk with the city attorney about the requirements for a conditional use permit because I knew he was operating without one. And he was informed that he would have to get a conditional use permit for the relocation. But there is nothing in the building where it's saying that the trash has to be stored indoors. Peterson: That could be the first time that you've... 2 Planning Commission Meeting - October 7, 1998 Kirchofl5 He would have received the staff report last week so. Joyce: Does Dominoes have trash outside? Is it Dominoes? Kirchofl5 Yes. They weren't required to put it indoors. That was. Joyce: That was right in front of us six months ago or something right? Why wasn't that required of them? Kirchofl5 ... Joyce: Okay. Peterson: Your comments LuAnn. Sidney: ... holding the applicant to having to store the trash internally... Peterson: Kevin. Joyce: I think that making them have the trash indoors is onerous. It says complaints about, I don't see anybody in the audience right now so if they were so moved to complained, maybe they'd be here or they'll be at the City Council meeting when it goes... I'm in favor of passing this along with outdoor trash like Dominoes. Peterson: Allyson. Brooks: I agree with Kevin. I don't find any problem with the condition use permit. I think the trash issue sounds like it's a mall wide, strip mall wide issue. Not a single Subway issue. So we need to deal with the trash issue as a unit so it shouldn't affect this application. Other than that I have no problems. Peterson: Alison. Blackowiak: As I read the staffreport it talks about restaurant smells and to me that implies cooking more so than a Subway type operation that is more of a made to order and not necessarily cooked food. So I can't see that requiring trash inside at this point would make sense. However, if it's something that the city wants to do, then could we put a time frame on it or something? I don't know. I'm going to throw that out but at this point I can't see that, if Dominoes wasn't. I understand Happy Gardens is required but if Dominoes recently was not required, I think Subway is a similar type of operation to Dominoes where it's cooked quickly and I think the smells are more cooking as opposed to trash so I guess I don't have a problem with it at this point. Planning Commission Meeting - October 7, 1998 Peterson: Ladd. Yeah, I feel the same way. I think if we, although this would be ideal to have it inside, I think when it was originally built is when the time to do the trash. Trying to retrofit something now would be... With those comments heard, may I have a motion please. Burton: I move that the Planning Commission recommends approval for conditional use permit #98-4 for the operation of Subway located at 2413 West Highway 7 at Seven Forty-One Crossings Center, based upon the findings presented in the staff report and subject to just condition two in the staff report and not the condition one. Peterson: Is there a second? Joyce: I'll second that. Burton moved, Joyce seconded that the Planning Commission reconunends approval for conditional use permit #98-4 for the operation of Subway located at 2413 West Highway 7 at Seven Forty-One Crossings Center, based upon the findings presented in the staff report and subject to the following condition: 1. The operation shall comply with all conditions of site plan review #86-2. All voted in favor and the motion carried unanimously. PUBLIC HEARING: REQUEST TO AMEND CONDITIONS OF APPROVAL OF SUBDIVISION #96-8 TO SUBDIVIDE A 7.05 ACRE PARCEL INTO TWO SINGLE FAMILY LOTS WITH A VARIANCE TO ALLOW A WOOD SHED TO ENCROACH INTO THE REQUIRED REAR YARD SETBACK LOCATED EAST OF TIGUA LANE AND SOUTHWEST RICE MARSH LAKE ON LOT 1~ BLOCK 1~ RICE LAKE MANOR (8591 TIGUA LANE)~ GORDON SCHAEFFER. Sharmin AI-Jaff presented the staff report on this item. Peterson: Questions of staff'? Burton: Did you say the house has a variance? Al-Jarl) It's not an approved variance. When I said that it has a variance, I meant that it was built without meeting ordinance requirements. Yet the city approved this permit. I suspect it was an oversight. Burton: Okay. Peterson: Other questions of staff'? 4 Planning Commission Meeting - October 7, 1998 Conrad: Sharmin, what are the negatives of approving the variance? A1-Jaflk Today the land immediately east of this properly is guided park. Open space. Now it could be open space 50 years from now. However, maybe a new commission could come in and take a second look at our comprehensive plan and say, prime buildable land and decide to put structures on that properly immediately next to it. Setbacks could become a problem. Grading could. You would be impacting the structures. Conrad: So whoever.., decrease the value of the land. Park, it probably doesn't, does it? Or open space. A1-Jaflk It's truly screened. There is quite a bit of woods there. It's a log home and an attached structure, the accessory structure is also made out of logs. It belongs to that type of setting. I don't see it as imposing from an architectural and aesthetic standpoint. Conrad: It's 10 feet from the rear yard in that setting, how did we let that happen? Building inspector? What was it that, when the house was built, what would have not triggered? A1-Jafl2 Large number of building permits sitting on a desk and you just want to. Conrad: Is there something about the lot itself that would have? You know don't know which is the rear yard. Don't know which is the side yard. Anything like that? I didn't tour the site. Joyce: It's a real narrow lot though, isn't it? It's a strange looking lot. A1-Jafl2 It's almost in a triangular shape. Joyce: Pie shaped lot. Conrad: So the down side is if we convert the neighboring properly to something other than what it's guided. Then it's a problem. But for open space there's no problem, well kind of because we're not really protecting anybody from this house. A1-Jafl5 An open space, even as an open space. Let's say the city decides it's going to be soccer fields. Grading is going to take place in that area. It's grading that could impact that neighboring structure. Brooks: But I thought that you're saying that the land is held by the City until MnDOT takes ownership of it. Am I on the wrong land? A1-Jafl5 ... is the question. I don't know. Brooks: So I don't understand, can we convert it to residential anyway because if MnDOT is going to take it. Planning Commission Meeting - October 7, 1998 Blackowiak: MnDOT could say they don't want it. Conrad: If they decide not to put the highway in then it's. Brooks: Well they're going to, no. They're going to hold off for 40 years while they decide while they decide whether to put the highway in. A1-Jafl~ There are wetlands on the site. It's very close to Rice Marsh Lake. Commissioner: ... A1-Jafl~ I believe it is. It is on a cement slab. The wood shed? No? Dirt. Okay. Dirt. Sorry. Blackowiak: Chairman, I have a quick question. Back to the conditions that were approved in 1996. Talked about 1 l(b), which is on page 8 in the back half. Remove the structure on the east side of the dwelling or obtain a permit to alter the structure to meet building and zoning requirements. Two questions. First. Is the owner the same that had to comply with these requirements in 1996 as today? Is it the same owner? A1-Jafl~ Maybe the applicant could address that part of it. Blackowiak: Okay. And the second thing, have the requirements that were placed on the properly in 1996 been met? Have they been met? A1-Jafl~ Everything with the exception of the shed issue. The wood shed. Blackowiak: Okay. Which leads to my next question. When we have a conditional use or a variance or something like that, or conditions that aren't met, what happens? We mn across this all the time. A1-Jafl~ We won't issue. That's the whole problem. They want to record the plat. We won't sign off on it. Blackowiak: It's simply because they have not met the initial conditions that were imposed 2 1/2 years ago? A1-Jafl~ Exactly. Blackowiak: Okay. That helps. Peterson: Would the applicant like to address the commission? Please come forward and state your name and address. Brenda Schaefl'er: I'm Brenda Schaefl'er, 8591 Tigua Lane and I'm Gordon Schaefl'er's mother. And I can give you a little bit of the history. I purchased this house from the original builder who 6 Planning Commission Meeting - October 7, 1998 was Gerald Hendrickson. Who was from this area and I believe he developed that whole area on Tigua Circle so I was the second owner of this house and it came with the shed on it. My son is actually purchasing this piece of properly now with me and there's one thing that isn't on here that I don't know that Gordy mentioned but I also live there but one of the reasons that we did not remove this. I don't know that I've seen all of this but that I had really had an agreement. I had sold this house to someone else and got it back basically. And my son is now working with me but I have a physical disability. I had been in an auto injury and I have fibromyalgia and if any of you have been out there, you can see where this wood shed is. This is our primary source of heat. We heat by wood. And to have it, to move it would be a hardship in terms of where we would have to go to get the wood. Also if you look at the land next to it, I believe there is wetlands. I don't know that there is a, there's some water, there's a water way. I don't think you could build very close even if that properly does go from the city to somebody else. I think there's some setback requirements. I don't know that but I was told this sometime back and so this is kind of a situation. I've always known it as a part of the house. It is structurally a part of there and we do use it. We fill it with wood every fall and right now we've been waiting because we can't deliver wood until we know where it's going to be delivered. And if you have questions you can ask me. Joyce: Well I'll follow up on Alison's question. Were you the owner then when we had this back in '96. Brenda Schaefl'er: I had sold it on a contract at that time. Joyce: When this was in front of us you weren't. Brenda Schaefl'er: We got the house, we really start moving in and repairing it last fall. When my son started action and we looked into all of this to see what had to be done so we could sell the other lot. Blackowiak: Excuse me though, according to the staff report in 1996 you were the applicant at the time. So in other words you owned the properly then when you came before. Brenda Schaefl'er: When I signed a contract but I had sold it to Mr. McKee. Who was supposedly taking care of all these things. Joyce: I'm still confused. Who? A1-Jafl2 The subdivision was done by Mr. Barry McKee. A separate, the person you sold it to. The properly reverted back to Mrs. Schaefl'er. Joyce: I see. All right, now I'm, thank you. I just got the name confused. Now I understand. Peterson: This is open for a public hearing. May I have a motion and a second please. Burton moved, Conrad seconded to open the public hearing. The public hearing was opened. 7 Planning Commission Meeting - October 7, 1998 Peterson: This is a public hearing then. Anyone wishing to address the commission please come forward. Seeing none, a motion to close the public hearing. Joyce moved, Blackowiak seconded to close the public hearing. The public hearing was closed. Peterson: Commissioners. Ladd, do you have any comments? Conrad: I'm really, Mr. Chairman, I'm not sold one way or another unfortunately on this. You know on the one hand I really would like to use reason on issues when something is wrong... clearly not going to impact the future. I'm not convinced however yet that it's not going to impact the future so that bothers me. So I'm, I don't have wisdom for this particular issue Mr. Chairman. Burton: Well I think if you just applied the strict variance test it would probably fail. However, I look at this as being a situation where the house itself, well the setback's 30 feet and the house is 10 feet away from the line so even if we address the shed issue, you still have a house that we're not going to do anything about that's going to be in violation of the setback. And based upon this fact that it would be hard, it looks to me like it would be hard to put the shed in a place that makes any sense. I think I'd be inclined to essentially ignore the variance application, I mean the application of the variance factors and approve of the applicant's request. Blackowiak: ... approving it with the condition that the construction type be changed. The fire resistant wall so that it would reflect the intent of the 1996 approval. Peterson: Thank you. LuAnn. Sidney: ... oversight on the part of the city as well as the applicant... The house is where it is and... Brooks: I have no issues with granting the variance. I think it's a wood shed. It's not a whole house. And the land next to it, I know Ladd you're worried about what could happen to that property but MnDOT right now is buying more right-of-way for 212. Whether or not the magic road happens or not so I don't think they're going to be turning that land into housing any time soon when they're buying more land. I think it's for now an okay situation. So I don't have any issues. Joyce: Probably allow a variance in this case .... both sides had, there were some concerns on both sides. Go forward and let them have the variance. Peterson: Yeah, I agree. There's too many mitigating factors in here that it's... With that, may I get a motion? 8 Planning Commission Meeting - October 7, 1998 Joyce: I move that the Planning Commission recommend approval of this variance and amend the conditions of approval for metes and bounds subdivision #96-8, Rice Lake Manor Estates as shown on the plans dated received April 12, 1996, the following two conditions. Peterson: Is there a second? Sidney: Second. Peterson: Any discussion? Conrad: I just, staff could we accept any increased liability by doing this? Grading on the property next to us? Lawsuits? Is there a liability at all? Hempel: From a grading standpoint? Conrad: You know yeah, something may be graded. Hempel: It's possible but it's probably pretty remote that grading would affect the structure. Joyce moved, Sidney seconded that the Planning Commission reconunend approval of the variance and amend the conditions of approval for Metes and Bounds Subdivision #96-8, Rice Lake Manor Estates as shown on the plans dated Received April 12, 1996, subject to the following conditions: 1. The applicant will be required to change the type of construction on the easterly wall of the shed to one hour fire resistive construction with no openings or projections beyond the wall. 2. The registered land survey shall be amended by a Registered Land Surveyor to reflect a minimum of one foot setback from the rear property line. All voted in favor and the motion carried unanimously. PUBLIC HEARING: REQUEST FOR CONSOLIDATION AND REPLAT OF 126~565 SQ. FT. INTO 2 LOTS AND 50UTLOTS~ MEDICAL ARTS ADDITION~ LOCATED NORTH OF WEST 78TM STREET AND WEST OF COLONIAL SQUARE~ CITY OF CHANHASSEN. Sharmin AI-Jaff presented the staff report on this item. Peterson: Questions for staflk Conrad: Why are there outlots? A1-Jaflk They're in city ownership. 9 Planning Commission Meeting - October 7, 1998 Blackowiak: Question about hard surface coverage. Why is there no maximum coverage for these buildings? A1-Jafl2 A lot of the, well most of downtown was built pre-dating ordinance. All of downtown doesn't have maximum on hard surface coverage nor height and I don't know what the reason behind it is. Blackowiak: So it's still, there's no? A1-Jafl~ No. Blackowiak: So that's something that we as a commission should investigate? I mean should we look at that or? A1-Jafl5 We've always tried to incorporate landscaping in with. It leaves the door open as far as design requests. I don't have a very, very good reason to give you. Blackowiak: Well it seems like there's a little more flexibility for you. Is that a good thing? A1-Jafl5 Yes. And parcels are very limited within downtown. It is, you don't have a very large open land in downtown. Blackowiak: Okay. Peterson: Are we safe to assume that the applicant would not like to make a presentation? A1-Jafl~ They agree with all the conditions of approval. Peterson: Public hearing. This item is open for public hearing. May I have a motion and a second please? Joyce moved, Blackowiak seconded to open the public hearing. The public hearing was opened. Peterson: This is a public hearing. Anyone wishing to address... Conrad moved, Joyce seconded to close the public hearing. The public hearing was closed. Peterson: Discussion. Matt. Burton: No comments. Sidney: No comments. 10 Planning Commission Meeting - October 7, 1998 Peterson: It's kind of hard to take notes when you're all shaking your heads. I have no comments either so... Sidney moved, Joyce seconded that the Planning Commission recommend approval of the preliminary plat to consolidate and replat 126,565 square feet into 2 lots and 5 outlots with a variance to the depth requirements, Medical Arts Addition, as shown in the plans dated September 4, 1998. All voted in favor and the motion carried unanimously. There was no further business to discuss and the meeting was adjourned at 7:40 p.m. Submitted by Kate Aanenson Planning Director Prepared by Nann Opheim 11