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08-4-93 Agenda and Packet AGENDA FILE CHANHASSEN PLANNING COMMISSION WEDNESDAY, AUGUST 4, 1993, 7:30 P.M. CHANHASSEN CITY HALL, 690 COULTER DRQ _ CALL TO ORDER PUBLIC HEARINGS 1. Proposal to rezone 11.5 acres of property zoned PUD and A2 to RSF and preliminary plat to subdivide 11.5 acres of property into 20 single family lots located just south of Heron Drive, on the east side of Audubon Road, Shenandoah Ridge, Shamrock Development. 2. Preliminary plat to subdivide a parcel (50,443 sq. ft.) into 3 single family lots on property zoned RSF and located at 6661 Nez Perce, TJO Addition, Todd Owens. 3. Preliminary plat to subdivide 4 acres into 4 single family lots on property zoned RSF and located at 6301 Church Road, Church Road Addition, Greg Reed. 4. Zoning Ordinance amendment to Section 20-575 - 20-595 regarding lot sizes. 5. Zoning Ordinance Amendment to clarify the landscaping ordinance. 6. City Code amendment to Chapter 10, regarding sexually oriented businesses. OLD BUSINESS NEW BUSINESS APPROVAL OF MINUTES CITY COUNCIL UPDATE ONGOING ITEMS ADMINISTRATIVE APPROVALS OPEN DISCUSSION ADJOURNMENT NOTE: Planning Commission meetings are scheduled to end by 11:00 p.m. as outlined in official by-laws. We will make every attempt to complete the hearing for each item on the agenda. If, however, this does not appear to be possible, the Chair person will notify those present and offer rescheduling options. Items thus pulled from consideration will be listed first on the agenda at the next Commission meeting. *Item Deleted: Zoning ordinance amendment to the Sign Ordinance. C I TY 0 F PC DATE: 8/4/93 � CC DATE: 8/23/93 � CHANHASSEN CASE #: 93-14 SUB 93-4 REZ By: Al-Jaff/Hempel STAFF REPORT PROPOSAL: Preliminary Plat to Subdivide 11.5 Acres into 20 Single Family Lots, Shenandoah Ridge Addition z LOCATION: South and west of Lake Susan Hills West, and east of Audubon Road and Z Bluff Creek Estates APPLICANT: Shamrock Development, Inc. James M. Stanton J 3200 Main Street 3200 Main Street _ a.. Coon Rapids, MN 55448 Coon Rapids, MN 55448 a. PRESENT ZONING: PUD-R, Planned Unit Development, Residential A-2, Agricultural Estate District ACREAGE: 11.5 acres (gross) 8.1 acres (net) DENSITY: 1.7 units per acre gross 2.5 units per acre net ADJACENT ZONING AND LAND USE: N - PUD-R, Planned Unit Development, Residential S - A-2, Agricultural Estate District �— E - PUD-R, Planned Unit Development, Residential QW - RSF; single family w WATER AND SEWER: Available to the site. 1"—P PHYSICAL CHARACTER.: The site generally slopes to the west. An existing Chaska Brick house occupies the northeast portion of the site. Mature trees and vegetation line on the south and east property lines of the site. 2000 LAND USE PLAN: Low Density Residential Shenandoah Ridge August 4, 1993 Page 2 PROPOSAL/SUMMARY The applicant is proposing to subdivide 11.5 acres into 20 single family lots. The property is zoned A-2 and PUD. The average lot size is 17,642 square feet with a resulting gross density of 1.7 units per acre. The site is located south and west of Lake Susan Hills West and east of Audubon Road and Bluff Creek Estates. Access to the subdivision will be provided by Osprey — Lane off Audubon Road and Alisa Court. Osprey Lane will eventually connect with the existing Osprey Lane located within the Lake Susan Hills West 8th Addition. Currently, there is an undeveloped parcel located to the east of the subject property and between the proposed Osprey Lane and the existing Osprey Lane, preventing this connection from taking place. A cul-de-sac, Alisa Court, extends north and south from Osprey Lane to service all of the proposed lots with the exception of Lot 1, Block 2. The southern portion of the Shenandoah Ridge site was located outside of the MUSA line until May, 1991, when the expansion was approved by the Metropolitan Council. The zoning map shows the northern portion of the site was rezoned into PUD when the Lake Susan Hills application was approved. Staff could not find any records approving the rezoning on the Shenandoah Ridge site and we believe it was an error created during the preparation of the zoning map that can be easily corrected. Proposed Lot 10, Block 1 has an existing residence and is surrounded by four accessory structures. All structures are proposed to be removed with the exception of the single family Chaska Brick house. Presently, access to this residence is gained from Audubon Road via a private. When Alisa Court is constructed, the existing residence will gain its access off of the cul-de-sac. The existing structure on the site meets the zoning ordinance setback requirements. The site has approximately 176 trees located mainly on the east and south portion of the site. The plans indicate that the majority of those trees will be preserved. The applicant must use design measures to preserve the trees. Trees proposed for removal will be replaced. A preservation easement over the area where tree concentrations exist, will be required. This easement will prevent any construction from taking place and subsequently preserving the trees. The Landscaping and Tree Preservation Ordinance states that all development located on arterial and collector streets are required to provide streetscape landscaping. The landscaping plan, which was submitted by the applicant as part of the preliminary plat is in response to this requirement and is of a high quality. However, staff is recommending a mixture of 10 additional deciduous and conifers trees be added along the westerly edge of the site. Staff believes that this plat request is a reasonable one and is generally consistent with guidelines established by the city's Comprehensive Plan and Zoning Ordinance. We find it to be well designed with only modest revisions being required. We are recommending that it be approved with conditions outlined in the report. Shenandoah Ridge August 4, 1993 Page 3 REZONING The applicant is proposing to rezone the property from A-2, Agricultural Estate to RSF, _ Residential Single Family. The area to the east and north is zoned Planned Unit Development. The area to the west of the site is zoned Residential Single Family and is zoned Agricultural Estate District to the south. The 2000 Land Use Plan shows this area designated for development as Low Density Residential, 1.2 - 4.0 units per acre. The applicant's proposal has a gross density of 1.7 units per acre and 2.5 units per acre net after the streets are taken out. This area is in the MUSA area. Staff is recommending that this area be rezoned to RSF and the rezoning is consistent with the Comprehensive Plan. PRELIMINARY PLAT The applicant is proposing to subdivide an 11.5 acre site into 20 single family lots. The density of the proposed subdivision is 1.7 units per acre gross, and 2.5 units per acre net after removing the roads. All the lots meet or exceed the minimum 15,000 square feet of area, with an average lot size of 17,642 square feet. All of the proposed lots meet the minimum requirement of the Zoning Ordinance. Staff notes that the proposal is consistent with the Comprehensive Plan and generally consistent with the Zoning Ordinance. ACCESS Access for this development is proposed via Osprey Lane and Alisa Court. Osprey Lane is accessed via Audubon Road. Alisa Court extends to the north and south. The southern end of Alisa Court will terminate with a temporary cul-de-sac. A temporary road easement will be required by the applicant for the temporary cul-de-sac. Since none of the lots will not be accessing onto the easterly end of Osprey Lane, a temporary turnaround will not be required. A barricade with a sign indicating that the road will be extended in the future shall be required at the south end of Alisa Court. Lot 1, Block 1 contains an existing Chaska brick home which has a driveway that extends over Lot 4, Block 1, and onto Audubon Road. This driveway will be removed and access to the existing house will be provided via Alisa Court. All lots will be restricted to access off of Alisa Court with the exception of Lot 1, Block 2. This parcel may gain access off of Osprey Lane. GRADING & DRALNAGE The grading plan proposes grading a majority of the site for the road, storm drainage ponds and house pads. In addition, berms are proposed adjacent to Audubon Road. The site drains from Shenandoah Ridge August 4, 1993 Page 4 west to east. The proposed grading plan does maintain the existing drainage pattern except on the southerly portion of Alisa Court where the street drainage has been directed south without adequate storm drainage provisions. Staff recommends that this portion of the street be redesigned to drain north to Osprey Lane where proposed catch basins will collect the runoff. The grading plan also proposes construction of a storm water retention pond for both water quality and quantity purposes over Lots 11, 12 and 13, Block 1. Detail storm sewer and ponding calculations will be necessary to determine if the pond is adequately sized. The outlet from the retention pond directs the overflow from the site along the west property line of Lake Susan Hills West 8th Addition into a natural drainageway. The applicant has also tentatively proposed grading for the easterly extension of Osprey Lane from this development to connect with Lake Susan Hills West 8th Addition. The applicant is trying to acquire the necessary easement to do this work. If the grading is completed as shown on the grading plan, this will create a earthen dam between the roadbed and subdivision. The appropriate drainage culvert would have to be employed. Storm water runoff from the development is proposed to be collected by catch basins which convey the runoff to the storm retention pond. Additional catch basins are anticipated at the — intersection of Alisa Court and Osprey Lane as well as an additional catch basin at the end of Alisa Court (north). Detailed storm water calculations for a 10-year storm event should be supplied to the Engineering Department for review and approval. Due to wet soil conditions throughout the City, staff has implemented a policy to require draintile behind the curb throughout the entire subdivision. The drain tile system serves a two-fold purpose by assisting street subgrade drainage as well as giving the homeowners a place to discharge the in household sump pumps. Due to the lot configurations, draintile may not be necessary along the entire length of Osprey Lane. Exact location of the draintile system will be determined during the construction plan review stage. UTILITIES Site is proposed to be serviced by municipal sewer and water from Audubon Road. The City has recently installed sanitary sewer and water lines adjacent to the development along the west side of Audubon Road. Sewer is proposed to be extended underneath Audubon Road between Lots 5 and 6, Block 1. The applicant should be aware the City will not allow open cutting of Audubon Road and therefore the sewer line will have to be "jacked" underneath Audubon Road. The applicant is proposing a 6-inch water line along Alisa Court to the south end of the plat for future extension. Staff also recommends that the sanitary sewer by extended to the south line of the plat for future extension as well. The plans also propose on extending a 6-inch water main across Audubon Road into the development. Similarly to the sanitary sewer crossing Audubon Road, the City will not permit Shenandoah Ridge August 4, 1993 Page 5 open cutting of the roadway. According to City records, the existing water main in Osprey Lane (Lake Susan Hills West 8th Addition) is an 8-inch line and is located along the southerly portion of the road. Staff will require that the proposed water main in Osprey Lane be relocated to the southerly portion of the roadway and be increased to an 8-inch diameter consistent with the existing line in Lake Susan Hills West 8th Addition. Placement of fire hydrants shall be reviewed and approved by the City fire marshal. Upon quick review, staff anticipates an additional fire hydrant on Alisa Court (north). STREETS Access to the site is proposed from Audubon Road adjacent to Valley Ridge Trail North. The proposed street (Osprey Lane) will dead end at the east perimeter of the plat. As the plans indicate, Osprey Lane has also been dead ended with the Lake Susan Hills West 8th Addition thus creating a 200-foot gap between the two roadway systems. As I previously indicated, the applicant is pursuing an easement from the property owner to perform some grading property — immediately adjacent to the east, however, staff is unaware if the easement is required at this time. In an effort to eliminate the gap between the two subdivisions, the City may pursue, if the easements were acquired, contributing towards the construction of the roadway to complete the street connection between the two subdivisions. Staff will be working with the applicant and property owner to pursue this avenue. Street grades in the subdivision range from 1.82% to 10% which is in excess of the City ordinance. Staff feels however due to the topographic constraints such as the future roadway connection to the east, the 10% street grade is acceptable. The plans are proposing to barricade Osprey Lane directly east of Alisa Court. Obviously, if the roadway connection is made, the barricade will not be necessary. The applicant is proposing a temporary cul-de-sac on Alisa Court south of Osprey Lane. The appropriate temporary turnaround easements will be necessary. Staff does not feel a temporary cul-de-sac is necessary at the end of Osprey Lane due to the steep street grade and since no driveway access will be permitted. Access to the lots shall be from the interior streets and not Audubon Road. The corner lots (Lots 1 and 13, Block 1 and Lot 1, Block 3) shall access Alisa Court and not Osprey Lane. Staff recommends that the driveway access to Lot 1, Block 2 be towards the easterly side of the lot, furthest from the intersection of Audubon Road. Similarly to the development to the west of the subdivision (Bluff Creek Estates 1st Addition), auxiliary turn lanes will be required for this development. A deceleration and acceleration lane in accordance with MnDOT standards, shall be included with the street construction phase of the development. Shenandoah Ridge August 4, 1993 Page 6 MISCELLANEOUS The appropriate utility and drainage easements will be required over the plat for the extension of sanitary and storm sewer lines. A minimum width of the easements shall be 20-feet wide. In addition, the appropriate utility and drainage easements shall be dedicated on the final plat for the storm water retention pond. The utility and drainage easements should be wide enough to accommodate access for maintenance vehicles (a minimum of 20 feet around the perimeter of the pond). According to City ordinance, the existing house on Lot 10, Block 1 will be required to connect to the new sanitary sewer line within 12 months after such a connection becomes available. Connection to city water is not required until the well on the property fails. Erosion control measures are being employed throughout the plat. Staff does recommend that the applicant include a construction rock entrance at all access points to the site. Depending on timing, the City may also require that erosion control silt fence be installed approximately 10 feet behind the curb throughout the subdivision in an effort to minimize erosion during the home construction process. This will also alleviate the builder from having to install individual erosion control measures on each lot during the winter months when weather conditions prohibits (frost). The Upper Bluff Creek Trunk Sewer and Water Improvement (Project No. 91-17) assessments will be pending on the property. The assessment will be based on the number of net accessible acreage for each parcel based on the number of residential equivalent units (REU) or lots for the planned use. The feasibility report (91-17) proposed a net accessible acreage of 7.93 acres with 14 REU's for the parcel. Plat proposes 20 lots which is six more than the feasibility report anticipated. The applicant should be aware that the feasibility report is only an estimate of the minimum number of lots that could be developed on the parcel. The final assessment will actually be based on the actual number lots developed on the site. The pending assessment as stated in the feasibility report will be low by approximately $13,470.00. The revised pending assessment based on the proposed development (20 lots) is $44,900.00. PARK AND RECREATION On Tuesday, July 27, 1993, the Park and Recreation Commission reviewed the Shenandoah Ridge Addition. Attached is a copy of the staff report. Upon conclusion of their meeting, the Commission recommended the following: Park It was recommended that land acquisition not be pursued in favor of park fees. Fees will be collected at the time of building permit application. Trails It is recommended that as a consideration of approval of Shenandoah Ridge, the applicant shall construct the portion of the city's comprehensive trail system previously described Shenandoah Ridge August 4, 1993 — Page 7 in this report. Specifically, from the southern curb of Heron Drive to the southern — terminus of Lot 4, Block 2. This trail is to be 8 feet in width with bituminous surfacing per standard city specifications. In consideration for this construction, trail and park fees will be reduced by an amount equal to the cost construction. Said costs to be determined — by the applicant for presentation to the city with documentation for verification. Current park and trial fees are $600.00 and $200.00 per single family unit, respectively. COMPLIANCE WITH ORDINANCE - RSF DISTRICT Lot Lot Lot Home Area Width DeDth Setback Ordinance 15,000 90' 125' 30' front/rear 10' sides _ BLOCK 1 Lot 1 17,276 105' 199.5' Lot 2 16,927 90' 197' — Lot 3 15,320 90' 170' Lot 4 15,006 92' 147' . _ Lot 5 15,010 76' on curve 139.5' 90' front setback — Lot 6 24,744 221 146' Lot 7 23,885 96' cul-de-sac 169.5' Lot 8 20,617 65' cul-de-sac 166.5' 105' front setback Lot 9 16,442 79' cul-de-sac 139.5' 106' front setback Lot 10 16,500 251' corner lot 131' 30F/30F/70S 70' 30SIDE Lot 11 15,145 94' 188' Shenandoah Ridge August 4, 1993 Page 8 Lot 12 16,501 90' 184' Lot 13 18,825 86' corner lot 150' 197' BLOCK 2 Lot 1 19,747 108' corner lot 213.5' 206' Lot 2 20,469 91' 227.5' Lot 3 21,706 91' 241' BLOCK 1 Lot 1 15,000 95' corner lot 147' 169' Lot 2 15,000 110' corner lot 132' Lot 3 18,455 91' 216' Lot 4 19,421 90' 218.5' TREE PRESERVATION The tree and landscaping plan shows the vegetated areas and the amount of tree removal. The site contains 176 trees along the east and south portions of the site that should be preserved as best possible. The wooded areas are on the steeper elevations of the site. Some of the vegetation is in locations where road extension will be required and will cause the loss of some of them. The applicant is proposing to replace those trees. Staff is recommending an additional mixture of 10 deciduous and conifers to be located along the westerly edge of the site. A preservation easement over the area where tree concentrations exist, will be required. This easement will prevent any construction from taking place and subsequently preserving the trees. LANDSCAPING The Landscaping and Tree Preservation requirements state that a landscape buffer is required when a subdivision plat is contiguous with a collector street. Required buffering shall consist of berms and landscape materials consisting of a mix of trees and shrubs and/or a tree preservation Shenandoah Ridge August 4, 1993 Page 9 area. The plan identifies plant material locations along Audubon Road as well as a single planting within each front yard. Appropriate financial security will be required. RECOMMENDATION Staff recommends the Planning Commission adopt the following motion: "The Planning Commission recommends approval of Subdivision #93-14 for Shenandoah Ridge Addition as shown on the plans dated July 6, 1993, subject to the following conditions: 1. The developer shall dedicate the utilities within the right-of-way for permanent ownership. 2. The applicant shall pay full park fees at the time of building permit application. The applicant shall construct the portion of the city's comprehensive trail system previously described in this report. Specifically, from the southern curb of Heron Drive to the _ southern terminus of Lot 4, Block 2. This trail is to be 8 feet in width with bituminous surfacing per standard city specifications. In consideration for this construction, trail and park fees will be reduced by an amount equal to the cost construction. Said costs to be determined by the applicant for presentation to the city with documentation for verification. Current park and trial fees are $600.00 and $200.00 per single family unit, respectively. 3. All areas disturbed during site grading shall be immediately restored with seed and disc- mulched or wood fiber blanket within two weeks of completing site grading unless the city's (BMPH) planting dates dictate otherwise. All areas disturbed with slopes of 3:1 or greater shall be restored with sod or seed and wood fiber blanket. 4. The vegetated areas which will not be affected by the development will be protected by a conservation easement. The conservation easement shall permit pruning, removal of dead or diseased vegetation and underbrush. All healthy trees over 6" caliper at 4' height shall not be permitted to be removed. The applicant shall provide the legal description for the easement. 5. The existing wells and sewage treatment systems shall be properly abandoned and furnish proof of abandonment to the Inspections Division. A city permit is required for on site sewage treatment system abandonment. This should be done prior to commencement of site grading. 6. The applicant must obtain city demolition permits from the Inspections Division for structures that will be removed (prior to removal). 7. The address for the existing home on Lot 10 shall be changed to Alisa Court. Shenandoah Ridge August 4, 1993 Page 10 8. Alisa Court shall have a temporary cul-de-sac. This cul-de-sac shall be barricaded with a sign indicating that the road will be extended in the future. 9. All street and utility improvements shall be construction in accordance with the City's latest edition of Standard Specifications and Detail Plates. Street construction plans shall also include a draintile system behind the curbs to accommodate household sump pump discharge. Detailed construction plans and specifications for utility and street improvements shall be submitted to the City for review and approval prior to final platting. Final construction plans and specifications are subject to City Council approval. 10. The applicant shall submit detailed storm drainage and ponding calculations to verify pipe sizing and pond volumes. Storm sewers shall be designed and constructed to a 10-year storm event and a retention/detention pond shall be reviewed by the City Storm Water Management engineer and constructed pursuant to the guidelines implemented by the City's Storm Water Management Plan. 11. The applicant shall include with the street construction plans, auxiliary turn lanes along Audubon Road. The auxiliary turn lanes shall be designed and constructed in accordance with MnDOT standards. 12. Applicant shall pursue acquiring the necessary easements for the extension of Osprey Lane between Shenandoah Ridge and Lake Susan Hills West 8th Addition. 13. The applicant shall dedicate to the City, the necessary temporary roadway easements'for portions of the temporary cul-de-sac (Alisa Court) lying outside the public right-of-way. The applicant shall dedicate on the final plat the following easements: A. 20-foot wide utility and drainage easement between Lots 5 and 6, Block 1. B. 20-foot wide utility and drainage easement between Lots 8 and 9, Block 1. C. Necessary utility and drainage easements for all pond retention/detention areas. 14. The final grading plan shall denote the type of house suggested for each lot. 15. The existing house on Lot 10, Block 1 shall connect to the municipal sanitary sewer system provided with the site improvements within 12 months after the connection becomes available and city water when the well on the property fails. 16. The existing house on Lot 10, Block 1 shall relocate its driveway to access the new street within 30 days after the new street is constructed. 17. The City will assess the development for 20 units instead of the 14 units as proposed in the feasibility report for Project No. 91-17. Shenandoah Ridge August 4, 1993 Page 11 18. The proposed water line in Osprey Lane shall be increased to an 8-inch diameter. In addition, the water and sewer lines shall be extended to the south property line of the plat on Alisa Court (south). 19. The street name, Alisa Court, should be revised to Alisa Lane to provide continuity. 20. Staff is in support of a 10% street grade and therefore recommends approval of any necessary variances to allow the 10% street grade. 21. The City will not permit open cutting of Audubon Road for the extension of utilities into the site. 22. Access to the lots shall be from the interior streets and not Audubon road. The corner lots (Lots 1 and 13, Block 1 and Lot 1, Block 3) shall take access from Alisa Court and not Osprey Lane. Driveway access to Lot 1, Block 22 shall be limited to the easterly half of the lot. REZONING Staff recommends the Planning Commission adopt the following motion: "The Planning Commission recommends approval of Rezoning #93-4 for property zoned A-2 to RSF for Shenandoah Ridge, subject to the following conditions: 1. The applicant shall enter into a development contract containing all of the conditions of approval for this project and shall submit all required financial guarantees. The development contract shall be recorded against the property. 2. The applicant shall meet all conditions of the Subdivision #93-14." ATTACHMENTS 1. Memo from Dave Hempel dated July 30, 1993. 2 Memo from Park and Recreation Director. 3. Preliminary plat. CITY OF CHANHASSEN 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937-1900 • FAX (612) 937-5739 MEMORANDUM TO: Sharmin Al-Jaff, Planner II FROM: Dave Hempel, Assistant City Engineer -7,4,4- DATE: ,4,4 DATE: July 30, 1993 SUBJ: Review of Preliminary Plat for Shenandoah Ridge Project No. 93-20 Upon review of the preliminary plat prepared by John Oliver & Associates dated June 30, 1993, I offer the following comments and recommendations: GRADING & DRAINAGE The grading plan proposes grading a majority of the site for the road, storm drainage ponds and house pads. In addition, berms are proposed adjacent to Audubon Road. The site drains from west to east. The proposed grading plan does maintain the existing drainage pattern except on the southerly portion of Alisa Court where the street drainage has been directed south without adequate storm drainage provisions. Staff recommends that this portion of the street be redesigned to drain north to Osprey Lane where proposed catch basins will collect the runoff. _ The grading plan also proposes construction of a storm water retention pond for both water quality and quantity purposes over Lots 11, 12 and 13, Block 1. Detail storm sewer and — ponding calculations will be necessary to determine if the pond is adequately sized. The outlet from the retention pond directs the overflow from the site along the west property line of Lake Susan Hills West 8th Addition into a natural drainageway. The applicant has also tentatively proposed grading for the easterly extension of Osprey Lane from this development to connect with Lake Susan Hills West 8th Addition. The applicant is trying to acquire the necessary easement to do this work. If the grading is completed as shown on the grading plan, this will create a earthen dam between the roadbed and subdivision. The appropriate drainage culvert would have to be employed. tPRINTED ON RECYCLED PAPER Sharmin Al-Jaff July 30, 1993 Page 2 Storm water runoff from the development is proposed to be collected by catch basins which convey the runoff to the storm retention pond. Additional catch basins are anticipated at the intersection of Alisa Court and Osprey Lane as well as an additional catch basin at the end of Alisa Court (north). Detailed storm water calculations for a 10-year storm event should be supplied to the Engineering Department for review and approval. Due to wet soil conditions throughout the City, staff has implemented a policy to require draintile behind the curb throughout the entire subdivision. The draintile system serves a two-fold purpose by assisting street subgrade drainage as well as giving the homeowners a place to discharge the in household sump pumps. Due to the lot configurations, draintile may not be necessary along the entire length of Osprey Lane. Exact location of the draintile system will be determined during the construction plan review stage. UTILITIES _ Site is proposed to be serviced by municipal sewer and water from Audubon Road. The City has recently installed sanitary sewer and water lines adjacent to the development along the west side of Audubon Road. Sewer is proposed to be extended underneath Audubon Road between Lots 5 and 6, Block 1. The applicant should be aware the City will not allow open cutting of Audubon Road and therefore the sewer line will have to be "jacked" underneath Audubon Road. The applicant is proposing a 6-inch water line along Alisa Court to the south end of the plat for future extension. Staff also recommends that the sanitary sewer by extended to the south line of the plat for future extension as well. The plans also propose on extending a 6-inch water main across Audubon Road into the development. Similarly to the sanitary sewer crossing Audubon Road, the City will not permit open cutting of the roadway. According to City records, the existing water main in Osprey Lane (Lake Susan Hills West 8th Addition) is an 8-inch line and is located along the southerly portion of the road. Staff will require that the proposed water main in Osprey Lane be relocated to the southerly portion of the roadway and be increased to an 8-inch diameter consistent with the existing line in Lake Susan Hills West 8th Addition. Placement of fire hydrants shall be reviewed and approved by the City fire marshal. Upon quick review, staff anticipates an additional fire hydrant on Alisa Court (north). STREETS Access to the site is proposed from Audubon Road adjacent to Valley Ridge Trail North. The proposed street (Osprey Lane) will dead end at the east perimeter of the plat. As the plans indicate, Osprey Lane has also been dead ended with the Lake Susan Hills West 8th Sharmin Al-Jaff July 30, 1993 Page 3 Addition thus creating a 200-foot gap between the two roadway systems. As I previously indicated, the applicant is pursuing an easement from the property owner to perform some grading property immediately adjacent to the east, however, staff is unaware if the easement is required at this time. In an effort to eliminate the gap between the two subdivisions, the City may pursue, if the easements were acquired, contributing towards the construction of the roadway to complete the street connection between the two subdivisions. Staff will be working with the applicant and property owner to pursue this avenue. Street grades in the subdivision range from 1.82% to 10% which is in excess of the City ordinance. Staff feels however due to the topographic constraints such as the future roadway connection to the east, the 10% street grade is acceptable. The plans are proposing to barricade Osprey Lane directly east of Alisa Court. Obviously, if the roadway connection is made, the barricade will not be necessary. The applicant is proposing a temporary cul-de-sac on Alisa Court south of Osprey Lane. The appropriate temporary turnaround easements will be necessary. Staff does not feel a temporary cul-de-sac is necessary at the end of Osprey Lane due to the steep street grade and since no driveway access will be permitted. Access to the lots shall be from the interior streets and not Audubon Road. The corner lots (Lots 1 and 13, Block 1 and Lot 1, Block 3) shall access Alisa Court and not Osprey Lane. Staff recommends that the driveway access to Lot 1, Block 2 be towards the easterly side of the lot, furthest from the intersection of Audubon Road. Similarly to the development to the west of the subdivision (Bluff Creek Estates 1st Addition), auxiliary turn lanes will be required for this development. A deceleration and acceleration lane in accordance with MnDOT standards, shall be included with the street construction phase of the development. MISCELLA.N'EOUS The appropriate utility and drainage easements will be required over the plat for the extension of sanitary and storm sewer lines. A minimum width of the easements shall be 20-feet wide. In addition, the appropriate utility and drainage easements shall be dedicated on the final plat for the storm water retention pond. The utility and drainage easements should be wide enough to accommodate access for maintenance vehicles (a minimum of 20 feet around the perimeter of the pond). According to City ordinance, the existing house on Lot 10, Block 1 will be required to connect to the new sanitary sewer line within 12 months after such a connection becomes available. Connection to city water is not required until the well on the property fails. Sharmin Al-Jaff July 30, 1993 Page 4 Erosion control measures are being employed throughout the plat. Staff does recommend that the applicant include a construction rock entrance at all access points to the site. Depending on timing, the City may also require that erosion control silt fence be installed approximately 10 feet behind the curb throughout the subdivision in an effort to minimize erosion during the home construction process. This will also alleviate the builder from having to install individual erosion control measures on each lot during the winter months when weather conditions prohibits (frost). — The Upper Bluff Creek Trunk Sewer and Water Improvement (Project No. 91-17) assessments will be pending on the property. The assessment will be based on the number of net accessible acreage for each parcel based on the number of residential equivalent units (REU) or lots for the planned use. The feasibility report (91-17) proposed a net accessible acreage of 7.93 acres with 14 REU's for the parcel. Plat proposes 20 lots which is six more than the feasibility report anticipated. The applicant should be aware that the feasibility report is only an estimate of the minimum number of lots that could be developed on the parcel. The final assessment will actually be based on the actual number lots developed on the site. The pending assessment as stated in the feasibility report will be low by approximately $13,470.00. The revised pending assessment based on the proposed development (20 lots) is $44,900.00. RECOMMENDED CONDITIONS OF APPROVAL 1. All street and utility improvements shall be construction in accordance with the City's latest edition of Standard Specifications and Detail Plates. Street construction plans shall also include a draintile system behind the curbs to accommodate household sump pump discharge. Detailed construction plans and specifications for utility and street improvements shall be submitted to the City for review and approval prior to final platting. Final construction plans and specifications are subject to City Council approval. 2. The applicant shall submit detailed storm drainage and ponding calculations to verify pipe sizing and pond volumes. Storm sewers shall be designed and constructed to a 10-year storm event and a retention/detention pond shall be reviewed by the City Storm Water Management engineer and constructed pursuant to the guidelines implemented by the City's Storm Water Management Plan. 3. Erosion control measures and site restoration shall be consistent with the City of Chanhassen's Best Management Practice Handbook. Sharmin Al-Jaff July 30, 1993 Page 5 4. The applicant shall apply for and obtain all necessary permits from the regulatory agencies such as MPCA, Health Department and Watershed District. 5. Prior to the City signing the final plat, the applicant shall enter into a development contract with the City and provide the necessary financial security to guarantee construction of the public improvements in compliance with the conditions of approval. Development contract will be subject to City Council approval. 6. The applicant shall include with the street construction plans, auxiliary turn lanes along Audubon Road. The auxiliary turn lanes shall be designed and constructed in accordance with MnDOT standards. 7. Applicant shall pursue acquiring the necessary easements for the extension of Osprey Lane between Shenandoah Ridge and Lake Susan Hills West 8th Addition. 8. The applicant shall dedicate to the City, the necessary temporary roadway easements for portions of the temporary cul-de-sac (Alisa Court) lying outside the public right- of-way. The applicant shall dedicate on the final plat the following easements: A. 20-foot wide utility and drainage easement between Lots 5 and 6, Block 1. B. 20-foot wide utility and drainage easement between Lots 8 and 9, Block 1. C. Necessary utility and drainage easements for all pond retention/detention areas. 9. The final grading plan shall denote the type of house suggested for each lot. 10. The existing house on Lot 10, Block 1 shall connect to the municipal sanitary sewer system provided with the site improvements within 12 months after the connection becomes available and city water when the well on the property fails. 11. The existing house on Lot 10, Block 1 shall relocate its driveway to access the new street within 30 days after the new street is constructed. 12. The City will assess the development for 20 units instead of the 14 units as proposed in the feasibility report for Project No. 91-17. 13. The proposed water line in Osprey Lane shall be increased to an 8-inch diameter. In addition, the water and sewer lines shall be extended to the south property line of the plat on Alisa Court (south). 14. The street name, Alisa Court, should be revised to Alisa Lane to provide continuity. Sharmin Al-Jaff July 30, 1993 Page 6 15. Staff is in support of a 10% street grade and therefore recommends approval of any necessary variances to allow the 10% street grade. 16. The City will not permit open cutting of Audubon Road for the extension of utilities into the site. 17. Access to the lots shall be from the interior streets and not Audubon road. The corner lots (Lots 1 and 13, Block 1 and Lot 1, Block 3) shall take access from Alisa Court and not Osprey Lane. Driveway access to Lot 1, Block 22 shall be limited to the easterly half of the lot. jms c: Charles Folch, City Engineer CITYOF CHANHASSEN690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937-1900 • FAX (612) 937-5739 MEMORANDUM TO: Planning Staff — FROM: Todd Hoffman, Park and Recreation Director DATE: July 30, 1993 SUBJ: Shenandoah Ridge The Park and Recreation Commission reviewed the Shenandoah Ridge Addition on July 27, 1993. A copy of the staff report presented to the commissioners is attached. Upon concluding their — discussion that evening, the commissioners approved the following recommendation: Park It was recommended that land acquisition not be pursued in favor of park fees. Fees will be collected at the time of building permit application. Trails It is recommended that as a consideration of approval of Shenandoah Ridge, the applicant — shall construct the portion of the city's comprehensive trail system previously described in this report. Specifically, from the southern curb of Heron Drive to the southern terminus of Lot 4, Block 2. This trail is to be 8 feet in width with bituminous surfacing per standard city specifications. In consideration for this construction, trail and park fees will be reduced by an amount equal to the cost construction. Said costs to be determined by the applicant for presentation to the city with documentation for verification. Current park and trial fees are $600.00 and $200.00 per single family unit, respectively. �4: PRINTED ON RECYCLED PAPER PRC DATE: 7/27/93 CITY OF \ � L CC DATE: CHAAI HOFFMAN:k STAFF REPORT PROPOSAL: Rezoning of 11.5 acres of property zoned PUD and A2 to RSF and Preliminary Plat to subdivide 11.5 acres into 20 single family lots, Shenandoah Ridge QLOCATION: South of Heron Drive, East of Audubon Road (see vicinity map) _ V APPLICANT: Shamrock Development John Oliver and Associates 0— 3200 Main Street, Suite 300 580 Dodge Avenue C:( Coon Rapids, MN 55433 Elk River, MN 55338 PRESENT ZONING: PUD, Planned Unit Development and A2, Agricultural Estate District ADJACENT ZONING AND LAND USE: N - PUD-R, Planned Unit Development S - A2, Agricultural Estate Q E - PUD-R and A2 W - Audubon Road COMPREHENSIVE PLAN: I.- This site is located in close proximity to Power Hill Park and Sunset Ridge Park. The proposed Osprey Lane will eventually connect to the existing Osprey Lane of Lake Susan Hills West. Upon entering Lake Susan Hills West, a trail connection to Power Hill is available within 1000 feet. Access to Sunset Ridge Park would require a walk or bicycle ride of one-third mile. Park and Recreation Commission July 27, 1993 Page 2 COMPREHENSIVE TRAIL PLAN: The Comprehensive Trail Plan identifies a trail abutting this proposed plat along Audubon Road. The trail currently terminates just to the north of this subdivision at Heron Drive_ The existing trail is constructed approximately 1 ft. outside the residential property lines in the right-of-way of Audubon Road. RECOMMENDATIONS Park It is recommended that land acquisition not be pursued in favor of park fees Fees to be collected at the time of building permit application at the rate then in force. Trails It is recommended that as a condition of approval of Shenandoah Ridge, the applicant shall construct the portion of the city's comprehensive trail system previously described in this report. Specifically, from the southern curb of Heron Drive to the southern terminus of Lot 4, Block 2. This trail to be 8 ft. in width with bituminous surfacing per standard city specifications. In consideration for this construction, trail and park fees will be reduced by an amount equal to the cost of construction. Said costs to be determined by the applicant for presentation to the city with documentation for verification. Current park and trail fees are $600.00 and $200.00 per single family unit, respectively. C I T Y 0 F PC DATE: 8/4/93 N � 1 GCCC DATE: 8/23/93 r HANHASSE CASE #: 93-16 SUB By: Al-Jaff:v STAFF REPORT PROPOSAL: Preliminary plat to subdivide 43,156 square feet into 3 single family lots and a Variance to the lot area and lot depth for Lot 2. Vacation of a portion of Hopi — Road is also requested. — z Q LOCATION: Lots 372 - 384 and Lots 403 - 411, Carver Beach - At the junction of Nez Perce O Road, Lake Lucy Road and Hopi Road APPLICANT: Todd Owens < 6661 Nez Perce Q Chanhassen, MN 55317 PRESENT ZONING: RSF, Residential Single Family ACREAGE: 43,156 square feet 46,038 square feet if include vacated right-of-way of Hopi Road DENSITY: 2.83 units/acre ADJACENT ZONLNG AND LAND USE: N - RSF, single family Q S - RSF, single family E - RSF, single family W - RSF, single family WATER AND SEWER: Water and sewer are available to the site. w F PHYSICAL CHARACTER.: The site contains an existing single family residence, has some steep topography and heavy vegetation. 2000 LAND USE PLAN: Residential Low Density • • - . . . , . . • _. F _ /. 3 . . .... . E ♦ 4 . 0 0 . 0 . 0 h C OIf LANE se) 0 '� p O O O . 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"' • ; `' 4- - RE y ;. ,. - .„---7...1 _ _ !` ;1 � �,,-, - "� � . 3 LOTUS ,— LUCY f ` �' D •,r , ;_ i_ '" _'c,' 'iia,: • _ -I/ 7i' i -ill • .-' • ..,w.z, tA,..- -:;,\; . .- --' '.,•J..-ri ,.. 1' L.:2_,„It - 1•A _ GREFNWO• i ��'-- :� s I:.�;1 ..\..),.4 4 i •. SHORES i ' �,� , . ., - k - •'DA R K .Ala; ..,0K." , : , �E,4 DOW _«;_,, y �', ,%' [ 4 K ANN GRE' NegK �`�1=-, �.?‘ --..i : • ;� - \� • ° �, lig ' , ���� - ,-- 1 - . • • .-sa a --t •�,f�'D r •,:-11-' - ...........e •;,447"4 . I R4 __.,( /- ;�\ „ ,• *ii- ri- '�a • ii4 TJO Addition August 4, 1993 Page 2 BACKGROUND The city vacated a portion of Lake Lucy Road which abuts the northerly edge of the subject site on January 8, 1990. The Lake Lucy Road vacated right-of-way originally was part of Vineland subdivision, located to the north of the subject site. The vacated right-of-way goes back to the property from which it was platted. Therefore, the subject site will not gain any of the vacated right-of-way from Lake Lucy Road. PROPOS AL/SUMMARY The applicant is proposing to create three single family lots in the Carver Beach area. One of the lots contains the applicant's residence and the remaining two lots will be for future residences. All three lots will be serviced from Nez Perce Road. Lots 2 and 3 will share a private drive off of Nez Perce to limit tree removal and Lot 1 will continue to be serviced by the existing driveway from Nez Perce. Lot 2 is a neck lot so that it has frontage on Nez Perce. The applicant is proposing to vacate a portion of Hopi Road, which abuts Lot 2. Hopi Road is unimproved in this location. Access from Nez Perce for Lot 2 is preferred by staff due to the topography and vegetation cover of the subject site. By vacating Hopi Road, Lot 2 will become a landlocked parcel. Therefore, Lot 2 is being created as a neck lot so that it does have frontage on a public street. By Lot 2 being a neck lot and from the location of the existing structures, there are two variances resulting from this proposal. Lot 2 contains 15,000 square feet, but since it is a neck lot, the neck area cannot be included in the lot area. Therefore, Lot 2 is only given credit for 13,000 square feet after the neck area is removed. Because Lot 2 is a neck lot, and is tucked behind two other lots, it does not have the required 125' of lot depth. The lot depth of Lot 1 is 88'. The applicant is pursuing the vacation of Hopi Road and has already included half (20') of the vacated right-of-way in Lot 2. Staff agrees to this since the vacation is supported by the City. If the applicant is able to add the full (40') vacated right-of-way to Lot 2, the lot area issue will be resolved, but the lot depth issue remains. The applicant has been in contact with his neighbor about acquiring the full vacated right-of-way. Carver Beach is made up of 20' x 100' lots. Much of Carver Beach contains single family lots which are under the required 15,000 square foot lot area requirement. These nonconforming lots are existing situations. The City has been fairly consistent in approving newly created lots only if they meet the zoning requirements. Since Carver Beach is somewhat of a unique area, staff compared this proposal with surrounding properties. Other than to the south of the site which contains lots less than 15,000 square feet, all other surrounding properties contain at least 15,000 square foot lots. The total square footage of the site (including 20' of vacated Hopi Road) is 48,038 square, which divided by three would give over 15,000 square feet to each lot. But due to the existing structures, the neck lot, etc., any shifting of the lot lines results in other variances (setback variances, no street frontage, etc.). The variances are not extreme and the overall required lot area is there, but a precedent may be set if the variances are approved. Staff has worked on several alternatives to developing the site, but as stated previously, the alternatives TJO Addition August 4, 1993 Page 3 result in other minor variances. Staff has established conditions for the Planning Commission and City Council should they recommend approval of the subdivision. PRELIMLNARY PLAT The applicant resides at a single family residence on a 43,156 square foot lot located at the intersection of Nez Perce, Lake Lucy Road and Hopi Road. The applicant is proposing to subdivide the property into three single family lots, one containing the existing residence and two vacant parcels. The subject site is bordered by three streets (Lake Lucy Road, Hopi Road and Nez Perce). In 1990, Lake Lucy Road, to the north of the site, was vacated by the City. Hopi Road, which abuts the easterly portion of the site, is unimproved and is proposed to be vacated by the applicant. Nez Perce Road is improved and services the existing residence on Lot 1, Block 1. The applicant is proposing to service the newly created lots from Nez Perce through a shared private drive. The applicant pursued acquiring half of the Lake Lucy Road right-of-way which was vacated by the city. The original dedication of Lake Lucy Road came from the original Vineland subdivision (north of the subject site) and therefore, the vacated right-of-way goes back to the property north of the subject site. Since the property owners to the north want to retain the vacated right-of-way it cannot be included in the subject plat. Hopi Road was created as part of — Carver Beach subdivision, so that the vacated right-of-way will be divided between the subject site and the property to the east. Hopi Road is unimproved at this location and there is no intention by the City to improve the right-of-way. Therefore, the city will support the proposed vacation (the actual vacation request will be heard by the City Council on August 23, 1993.) Since staff is confident that the vacation will be approved, we have allowed the applicant to add this additional square footage into the plat. Lot 1, Block 1 contains 15,831 square feet and contains the existing residence. The applicant is maintaining the required setbacks for the existing structures from the new lot lines. Lot 2, Block 1 contains 15,000 square feet, including the neck area. This square footage contains the vacated strip of Hopi Road and includes the footage within the neck of the lot. The zoning ordinance states that neck lots must have 15,000 square feet, not including the area within the neck. Therefore, Lot 2, Block 1 does not meet the requirements of the zoning ordinance and a variance is required for approval. Lot 2, Block 1 also does not meet the lot depth requirement of 125' and a variance is required for approval. Lot 3, Block 1 contains 15,208 square feet. This square footage does not include area from vacated Lake Lucy Road. Both Lots 2 and 3 will be serviced from Nez Perce Road by sharing a private drive and both lots provide the necessary setbacks for a buildable area. Staff met with the applicant on site and agreed that Lots 2 and 3 should share a drive off of Nez Perce Road due to the lay of the land and the reduction of tree removal. If Lot 2 was serviced off of Hopi Road, more trees would be removed. TJO Addition August 4, 1993 Page 4 LOT, BLOCK AREA WIDTH DEPTH SETBACK LOT 1 15,831 SQ.FT. 120' 131' 30' FRONT 10' SIDE 30' REAR LOT 2 13,000 SQ.FT.* 136' 89' ** 30'FRONT 20' SIDE 30'REAR I LOT 3 15,208 SQ. FT. 141' 227' 30' FRONT 10' SIDE 30' REAR * NOT INCLUDING NECK LOT AREA-VARIANCE REQUIRED ** VARLANCE REQUIRED STREETS/ACCESS The access to the site has been looked at with staff and the applicant. Staff, along with the applicant, feels that the best access to the site is off of Nez Perce Drive as proposed. Access from Hopi Road would require significantly more tree removal than from Nez Perce Drive. Also, from a traffic standpoint, it is a much shorter route to have access off of Nez Perce Drive. Pursuant to City Ordinance, the applicant is proposing a 20-foot wide driveway access built to 7-ton design for the common driveway portion. After the common driveway portion, the typical standard driveway would be constructed. UTILITIES As the applicant has denoted in his narration, Lot 1 where the existing home is located is currently hooked up to City sewer and water from Nez Perce Drive. The two proposed lots are proposed to be serviced from a common sewer line extended from Hopi Road. The common sewer service will wye at the south property line of Lot 2 for a stub for Lot 2 the remaining sewer line will extend up to Lot 3. The sewer lines through Lots 2 and 3 will be considered privately owned and maintained by the property owners. The sewer line located within the right- of-way of Hopi Road will be the City's responsibility for maintenance. Water service to the new lots will be extended from Nez Perce Drive. The applicant has proposed the extension of a 2-inch common water line along the private driveway. From a water shut-off standpoint staff recommends that two individual 1-inch copper service lines be extended TJO Addition August 4, 1993 Page 5 from Nez Perce Drive for the two new lots in lieu of one 2-inch common line. Both sewer and water services are proposed to be constructed within a proposed 20-foot wide drainage and utility easement. GRADING AND DRAINAGE Due to the small size of the development, the increased runoff from the site is minimal. In lieu of any on-site retention ponds, staff recommends that the applicant be required to pay a cash contribution into the City's Surface Water Management Fund. Staff will calculate the cash contribution based on the City's Storm Water Management Fund. The grading plans show only grading for the private driveway. The house pads are proposed to be custom-graded as the building permits are issued. The applicant has denoted on a tree removal plan the anticipated limits of tree removal. The limits of tree removal shown on the plans appear reasonable with the anticipated home construction. TREE REMOVAL On sheet 2 of the plans the applicant has provided a tree inventory and has shown the limits of tree removal. There is a total of 110 trees on Lots 2 and 3 which is where improvements will take place. The applicant has set limits of tree removal and has estimated that 26c7c (29 trees) of the trees may be removed. If mass grading does not take place on the site, more trees may be saved. Specifically, the following trees are proposed to be removed from the site: Lot 2, Block 1 Tree number 10-18 29 37-39 41 42 44 98 Lot 3, Block 1 68-69 46-48 66 72 73 TJO Addition - August 4, 1993 Page 6 MISCELLANEOUS Since there will be extension of public utilities into the site by the developer, it is recommended that the applicant enter into a development contract and provide the City with the necessary financial security to guarantee installation of the public improvements. The construction of the utility improvements shall be in accordance with the City's latest edition of Standard Specifications and Detail Plates. Due to the extremely small size of the project, detailed construction plans will not be necessary; however, a final grading and utility plan sheet should be submitted for City review and approval. According to the City's records, the parcel has been previously assessed for one sewer and water connection hook-up charge. Since the parcel is now being proposed to be subdivided into three lots, additional sewer and water hook-up connection fees should be assessed. Staff has discussed this with the applicant in some detail. Staff agrees since the applicant is extending sewer and water lines into the parcel to both lots that the applicant should only be responsible for one additional connection charge in the amount of $6,794.91. Both lots shall be, however, assessed the City's hook-up charge of $1,750. Both of these fees would be payable at the time of issuance of building permit. In addition, these fees could be assessed back against the parcels. RECOMMENDATION Staff recommends the Planning Commission adopt the following motion: 'The Planning Commission recommends approval of the preliminary plat (#93-16) for TJO Addition as shown on the plans dated July 6, 1993, and subject to the following conditions: 1. The plat approval is contingent upon the vacation of Hopi Road being approved by the City Council and at least 20' x 137.58' of the vacated right-of-way is combined with the subject property. 2. The variance to the lot area and lot depth is approved. 3. The applicant shall be permitted to remove only the following trees (as shown on Sheet 2). All other trees located on the site must be preserved and protected with snow fence located 112 times the drip line. Lot 2, Block 1 Tree number 10-18 29 37-39 41 TJO Addition August 4, 1993 Page 7 42 44 98 Lot 3, Block 1 46-48 66 68-69 72 73 4. Two individual 1-inch water service lines should be extended from Nez Perce Drive in lieu of the proposed 2-inch common water service line. 5. Final grading and utility plans in accordance with the City's Standard Specifications and Detail Plates shall be submitted to the City for review and approval. 6. The applicant shall enter into a development contract with the City and supply the City with the necessary financial security to guarantee compliance of the conditions of approval. 7. Lot 2 shall be assessed a sewer and water connection and hook-up charge in the amount of $8,544.91. Lot 3 shall be assessed a sewer and water hook-up charge of$1,750. Both of these fees shall be payable at the time of building permit issuance and may be assessed against the property at that time. 8. The 20-foot wide common driveway shall be installed before or concurrently with issuance of the building permit in the development. 9. The applicant shall pay a cash contribution into the City's Storm Water Management Fund. The fees shall be calculate by staff in accordance with the City's Surface Water Management Plan. 10. Full park and trail fees be accepted as a part of the platting of the TJO Addition. These fees to be collected at the rate in force upon building permit application. Current park and trail fees are $600 and $200, respectively. 11. A structural engineer will be required to design the foundation for the dwellings on Lots 2and 3." TJO Addition August 4, 1993 Page 8 ATTACHMENTS 1. Memo from Dave Hempel dated July 29, 1993. 2. Memo from Todd Hoffman dated July 29, 1993. 3. Memo from Steve Kirchman dated July 29, 1993. 4. Surrounding lot area. 5. Tree survey table. 6. Reduced copies 7. Project summary 8. Public hearing and property owners. 9. Preliminary plat. CITYOF CHANHASSEN s — 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937-1900 • FAX (612) 937-5739 MEMORANDUM TO: Sharmin Al-Jaff, Planner I — FROM: Dave Hempel, Assistant City Engineer/ DATE: July 29, 1993 • SUBJ: Preliminary Plat Review of TJO Addition (6661 Nez Perce Drive) — File No. 93-17 Land Use Review Upon review of the preliminary plat prepared by Westwood Engineering dated July 6, 1993, I offer the following comments and recommendations: STREETS/ACCESS The access to the site has been looked at with staff and the applicant. Staff, along with the applicant, feels that the best access to the site is off of Nez Perce Drive as proposed. Access from Hopi Road would require significantly more tree removal than from Nez Perce Drive. Also, from a traffic standpoint, it is a much shorter route to have access off of Nez Perce Drive. Pursuant to City Ordinance,the applicant is proposing a 20-foot wide driveway access built to 7-ton design for the common driveway portion. After the common driveway portion, the typical standard driveway would be constructed. UTILITIES _ As the applicant has denoted in his narration, Lot 1 where the existing home is located is currently hooked up to City sewer and water from Nez Perce Drive. The two proposed lots — are proposed to be serviced from a common sewer line extended from Hopi Road. The common sewer service will wye at the south property line of Lot 2 for a stub for Lot 2 the remaining sewer line will extend up to Lot 3. The sewer lines through Lots 2 and 3 will be — considered privately owned and maintained by the property owners. The sewer line located within the right-of-way of Hopi Road will be the City's responsibility for maintenance. Water service to the new lots will be extended from Nez Perce Drive. The applicant has proposed the extension of a 2-inch common water line along the private driveway. From Irk i41, PRINTED ON RECYCLED PAPER Sharmin Al-Jaff July 29, 1993 Page 2 a water shut-off standpoint staff recommends that two individual 1-inch copper service lines be extended from Nez Perce Drive for the two new lots in lieu of one 2-inch common line. Both sewer and water services are proposed to be constructed within a proposed 20-foot wide drainage and utility easement. GRADING AND DRAINAGE Due to the small size of the development, the increased runoff from the site is minimal. In lieu of any on-site retention ponds, staff recommends that the applicant be required to pay a cash contribution into the City's Surface Water Management Fund. Staff will calculate the cash contribution based on the City's Storm Water Management Fund. The grading plans show only grading for the private driveway. The house pads are proposed to be custom-graded as the building permits are issued. The applicant has denoted on a tree removal plan the anticipated limits of tree removal. The limits of tree removal shown on the plans appear reasonable with the anticipated home construction. MISCELLANEOUS Since there will be extension of public utilities into the site by the developer, it is recommended that the applicant enter into a development contract and provide the City with the necessary financial security to guarantee installation of the public improvements. The construction of the utility improvements shall be in accordance with the City's latest edition of Standard Specifications and Detail Plates. Due to the extremely small size of the project, detailed construction plans will not be necessary; however, a final grading and utility plan sheet should be submitted for City review and approval. According to the City's records, the parcel has been previously assessed for one sewer and water connection hook-up charge. Since the parcel is now being proposed to be subdivided into three lots, additional sewer and water hook-up connection fees should be assessed. Staff has discussed this with the applicant in some detail. Staff agrees since the applicant is extending sewer and water lines into the parcel to both lots that the applicant should only be responsible for one additional connection charge in the amount of $6,794.91. Both lots shall be, however, assessed the City's hook-up charge of $1,750. Both of these fees would be payable at the time of issuance of building permit. In addition, these fees could be assessed back against the parcels. RECOMMENDED CONDITIONS OF APPROVAL 1. Two individual 1-inch water service lines should be extended from Nez Perce Drive in lieu of the proposed 2-inch common water service line. Sharmin Al-Jaff July 29, 1993 Page 3 2. Final grading and utility plans in accordance with the City's Standard Specifications and Detail Plates shall be submitted to the City for review and approval. 3. The applicant shall enter into a development contract with the City and supply the City with the necessary financial security to guarantee compliance of the conditions of approval. 4. Lot 2 shall be assessed a sewer and water connection and hook-up charge in the amount of $8,544.91. Lot 3 shall be assessed a sewer and water hook-up charge of $1,750. Both of these fees shall be payable at the time of building permit issuance and may be assessed against the property at that time. 5. The 20-foot wide common driveway shall be installed before or concurrently with issuance of the building permit in the development. 6. The applicant shall pay a cash contribution into the City's Storm Water Management Fund. The fees shall be calculate by staff in accordance with the City's Surface Water Management Plan. ktm c: Charles Folch, City Engineer CITY OF CHANHASSEN — 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN. MINNESOTA 55317 (612) 937-1900 • FAX (612) 937-5739 MEMORANDUM TO: JoAnn Olsen, Senior Planner FROM: Todd Hoffman, Park and Recreation Director DATE: July 29, 1993 SUBJ: TJO Addition The Park and Recreation Commission reviewed the TJO Addition on July 27, 1993. Mr. Todd Owens, the applicant was in attendance. A copy of the staff report presented to the commissioners is attached. Upon concluding their discussion that evening, the commissioners approved the following recommendation: "It is recommended that full park and trail fees be accepted as a part of the platting'of — the TJO Addition. These fees to be collected at the rate in force upon building permit application. Current park and trail fees are $600.00 and $200.00, respectively." All commissioners voted in favor and the motion was carried. elk 4: PRINTED ON RECYCLED PAPER PRC DATE: July 27, 1993 CITY OF CC DATE: ClIANIIASSEN \�I HOFFMAN:k STAFF REPORT I PROPOSAL: Vacation of a portion of right-of-way of Hopi Road and preliminary plat to subdivide a 50,443 sq. ft. parcel into 3 single family lots on property zoned RSF, TJO Addition. Z LOCATION: 6661 Nez Perce I Q U cLAPPLICANT: Todd Owens Westwood Professional Services a 6661 Nez Perce 14180 West Trunk Highway 5 a- Chanhassen, MN 55317 Eden Prairie, MN 55344 1 Q l • 1 PRESENT ZONLNG: RSF, Residential Single Family I ADJACENT ZONLNG AND LAND USE: N • RSF S - RSF E - RSF - RSF, Nez Perce I Q COMPREHENSIVE PLAN: W Carver Beach Park, located across Nez Perce and to the south 600 feet, fulfills the city's park _ I--- requirement standards as identified in the City's Comprehensive Plan for the TJO Addition. (75 COMPREHENSIVE TRAIL PLAN: The City's Comprehensive Trail Plan does not identify any trails immediately adjacent to this subdivision. Park and Recreation Commission • July 27, 1993 Page 2 RECOMMENDATION Parks and Trails It is recommended that full park and trail fees be accepted as a part of the platting of the TJO Addition. These fees to be collected at the rate in force upon building permit application. Current park and trail fees are $600.00 and $200.00, respectively. t , T •, •,,..1...--(.,•-_,S' .- __, - .1Sty- - ` ..5.,_-,.,. •�"ti .. �v. �`^' •�-,:••,1„:-._s�F'- � _. .y�� '': - .w - r���'M/-�i.' yy?►' .-- r-. • Art s' + ' :' - .�, t• rte"' as.-, Y p ''''S, C - S< ti. -. ;M ' �. • 4 • � o , _ra. , it .2:11h i .,\:...;,./ 44/• .,Nirs • i'‘A -_4:--. - iiike..41,••bi . \ S V>. P VI 1 1\ .� -, N Ar._ IiiiiiiiiI6141k re -iwk,ak, -4 i.s. ‘,..„_.,„,„,,,sys ,i „0 .., „ . ,\ r .. Ncr, - .....,,,„,...„ ....,._,.. - ,,,.....,v , _ , � r \-') ''' Or 118141 ', .1 111&..ft .. 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O s •E EI s#1 IL EI r .E ' 111 2 Ef 11 1 1 . .. lam / I E iv- /- E j; i 1 E. /• t it : - ' •' / 1 /� o ; 0 .p 1 \ =j / I / . \ ii E / 7 i E ca / a • R:t */ j .E g �:2 / / E sE ' • / .1 41 r - E + A.M 1 � f / it 227. err 16 CD _ t -i I • i .1, Y OJ E • • r • ` 1 Q ! __-_ iT ; Ner" • de I se re L % I ^^ I . �e 4 $ o0 E F Ee . r .r t .4 i E E r . • o 2 C 12 co a i" J s Todd Jay Owens 8661 Nez Perce Ave_ Chanhassen, MN. 55317 July 6, 1993 To: City Of Chanhassen Regarding: TJO Addition Project Summary & Narrative P r o j e c t Oxmonn a r y Project Name TJO Addition (Plat name) Location East of Nez Perce Ave_ at the intersection of Lake Lucy Road_ Owner / Developer / Applicant Todd J. Owens 6661 Nez Perce Ave. Chanhassen, MN. 55317 Home Phone: 474-2972 Office: 944-9690 Site Planner, Surveyor, and Enwineer Westwood Professional Services, Inc. 14180 West Trunk Highway 5 Eden Prairie, MN. 55344 Phone: 937-5150 Contact: Tim Erkkila Leal_ Dc' cr_ipt i_on Lots 372 thru 384 and lots 403 thru 411, Carver Beach, according to the plat thereof on file and of record in the Registrar of Titles, Carver County, Minnesota_ Proposed Legal Description - Vacated Lake Lucy Road The south one-half of Lake Lucy Road as dedicated on the plat of Vineland, according to the plat of record thereof, Carver County, Minnesota, lying easterly of the northwesterly extension of the southwesterly line of lot 372, Carver Beach, according to the plat of record thereof, and which also lies westerly of the northwesterly extension of the centerline of Alder Drive (aka Hopi Road) as dedicated on said plat of Carver Beach_ Proposed Vacation - Alder Drive (aka Hopi Road) The southwesterly one-half of Alder Drive (aka Hopi Road) as dedicated on the plat of Carver Beach, according to the plat of record thereof, Carver County, Minnesota, lying northwesterly of the northeasterly extension of the southeasterly line of lot 411 said Carver Beach_ Development Data Zoning RSF Site Area Lots 372-384 & 403-411 43, 156 (Carver Beach) Vacation of 1/2 of Lake Lucy Road 2,882 (aka Alder, aka Kiowa) Subtotal 46,038 s_f_ Vacated 1/2 of Lake Lucy Rd_* 4,405 Total Area 50,443 s. f. Proposed Development Create 2 new 15,000 s.f. lots for single family development adjacent to existing residence Lot 1 area (with existing residence) 15,831 s_f_ Lot 2 area 15,000 s_f.* Lot 3 area 15,207 s. f_* * If I succeed in obtaining 1/2 of Lake Lucy Rd_ , old R.O.W. lot areas in lots 2 & 3 will be increased. Pro j € ct NEl_rrat i r Introduction I have had numerous meetings and discussions with city staff, (mainly Sharmin Al-Jaff & David Hempel) , in pursuing this project. They have been exceptionally helpful and patient with me throughout this learning experience as this is not my everyday business. I have made every attempt to comply with their recommendations and requests_ One of my wife"s and my goals throughout this project has been to develop the property in a way that would have the least negative impact on the surrounding neighbors_ We have kept in touch with the surrounding neighbors from the beginning stages of this project_ We feel that the proposed plat accomplishes this goal_ Existing Conditions This property has been home to my wife and myself since we were married in 1979. The existing home is an older home bordered by older homes on one side and new homes on two sides_ The property is an oversize lot for the area, an acre of heavily wooded land which slopes to the north. The woods consist of many mature Maples, Oaks and Basswoods_ Description of Proposed Development Our land together with the vacation of Hopi allows enough area for three lots. Lot 2 could be accessed from Hopi or Nez Perce and lot 3 could be accessed from further north on Nez Perce. The design solution we selected features a combined drive off Nez Perce which is at the high side of the building sites for custom walk out homes_ The common drive is preferred due to the fact that more tree removal would be required with the other options we looked at. In creating this lot configuration we feel the need to include the neck area of lot 2 in the area calculations to get sufficient lot area and orderly lot lines. All lots are at least 15,000 square feet and existing buildings comply with set back requirements. Note: The shed in lot 2 would be removed or moved to lot 1 depending on the wishes of the new owner of lot 1. Architecture I am not a builder or developer by profession_ My assumption is that the buyers of the lots would build quality custom homes of an upper scale similar to the quality of the Vineland Forest development which directly abuts our property to the north. Grading On our plan we have shown grading for access drive only_ We have not shown building pad grading as that would be up to the new architecture chosen buy the new owners of the lots_ While we don't have a plan we have tried to identify potential impact in the tree survey. Tree Preservation We estimate that approximately 29 trees out of 110 surveyed and identified trees over 6" diameter will be affected_ That calculates to 26% removed and 74% kept intact. My goal is to work with the buyers of the lots to potentially save even more trees. Utilities Lot 1 has water and sewer and will remain as is off Nez Perce. New lots 2 & 3 will receive water service from Nez Perce via 2" diameter common water service and we don't expect to disturb Nez Perce because water service is available on the east side of Nez Perce. Sanitary sewer will come from existing manhole on Hopi and serve lots 2 & 3 via 6" PVC. Both services are proposed to put in 20' wide easements_ Gravity systems will be used_ Streets No new streets are proposed_ As proposed, Nez Perce will provide access_ 30' wide by 60 " long easement for joint access is proposed for lots 2 & 3_ 20' wide 7 ton bituminous drive will he constructed as proposed by me in conjunction with house construction. Street Vacation With this submission we are requesting vacation of 1/2 of Hopi Road abutting our property_ This area is included in lot and area calculations_ I have been working with my attorney and city staff on acquiring 1/2 of vacated portion of Lake Lucy Road which abuts the north edge of our property_ Chanhassen vacated this land by a resolution on January 8, 1990 and filed it with the county May 8, 1990_ I attended the public hearing relating to this_ When I inquired of the council at the public hearing I was told that it was likely I would receive 1/2 of the vacated portion. The land area is 4,405 square feet and is shown on our plat but not included in the lot configuration or area. If I acquire this land before the final plat the lot line between lots 2 & 3 will be adjusted slightly for an equitable distribution and to improve lot 2_ Wetlands - None on site or affected by project_ Z.Z.16;1:7.ratijialjA „„Aik ,,......r .•.d,.. , - .e 7. .„ , = ' , \ 1 NOTICE OF PUBLIC HEARING ' ...ai S � Illee A•l . _fr I I. PLANNING COMMISSION MEETING ��\�G` �` ! !it& ��A`_ti AMU -P Wednesday, August 4, 1993, 7:30 P.M. ... I U ' 1 ...1r974z7" .41,6 City Hall Council Chambers , ' it �,, 1, I •i p 690 Coulter Drive IL.: ;'----' - NIA'•T.. '(' J Project: TJO Addition —4: _,,a ' . 4 ; F afirr,% Developer: Todd J. Owens `�. 4 ..i---;9.—, . kt____ _ , ' r• , - 1 v - . . ' r Location: 6661 Nez Perce ^a', - t - t a - .s Notice: You are invited to attend a public hearing about a development proposed in your area. Todd Owens proposes to subdivide a 50,443 square foot parcel into 3 single family lots on property zoned RSF and located at 6661 Nez Perce, TJO Addition, Todd Owens. What Happens at the Meeting: The purpose of this public hearing is to inform you about the developer's request and to obtain input from the neighborhood about this project. During the meeting, the Planning Commission Chair will lead the public hearing through the following steps: 1. Staff will give an over view of the proposed project. 2. The Developer will present plans on the project. 3. Comments are received from the public. 4. Public hearing is closed and the Commission discusses project. The Commission will then make a recommendation to the City Council. Questions or Comments: If you want to see the plans before the meeting, please stop by City Hall during office hours, 8:00 a.m. to 4:30 p.m., Monday through Friday. If you wish to talk to someone about this project, please contact Jo Ann at 937-1900. If you choose to submit written comments, it is helpful to have one copy to the Planning Department in advance of the meeting. Staff will provide copies to the Commission. Notice of this public hearing has been published in the Chanhassen Villager on July 22, 1993. Nicolette Randall Gregory & B. Peppersack David & Carol Zalusky 6680 Nez Perce Drive 940 Western Drive 960 Western Drive - Chanhassen, MN 55317 Chanhassen, MN 55317 Chanhassen, MN 55317 Steven & Gloria Ray Chin Van & N. Nguyen Willard & N. Shoberg 920 Western Drive 900 Western Drive 980 Western Drive Chanhassen, MN 55317 Chanhassen, MN 55317 Chanhassen, MN 55317 Betty Johnson. Ramona Beckman E. & V. Keefer 6694 Nez Perce Drive 6670 Hopi Road 6681 Nez Perce Drive Chanhassen, MN 55317 Chanhassen, MN 55317 Chanhassen, MN 55317 Daniel & Karen Woitalla Nadean Collver Jeffery Braiedy & T. Falkosky - 6689 Nex Perce Drive 6686 Nez Perce Drive 850 Western Drive Chanhassen, MN 55317 Chanhassen, MN 55317 Chanhassen, MN 55317 James Cosgrove Craig & Kim Anderson Frank Lieble 6679 Hopi Road 6683 Hopi Road c/o Albert Otterdahl Chanhassen, MN 55317 Chanhassen, MN 55317 6715 Nez Perce Drive Chanhassen, MN 55317 William & Maria Peden Victoria Sanchez-Boice Evelyn Prestemon 6687 Hopi Road 6680 Deerwood Drive 6680 Deerwood Drive Chanhassen, MN 55317 Chanhassen, MN 55317 Chanhassen, MN 55317 _ Mrs. Leonard Larson Albert & Elaine Otterdahl City of Chanhassen 3033 43rd Avenue South 6715 Nez Perce Drive City Treasurer Minneapolis, MN 55406 Chanhassen, MN 55317 Bruce Schurmann David & Marilynn Cook Mathias & Judith Jacobs 116 Elm Street North 941 Western Drive 921 Western Drive Lester Prairie, MN 55354 Chanhassen, MN 55317 Chanhassen, MN 55317 David & Linell Santella Steven & Yvonne Hayes Kenneth Morrill _ 881 Western Drive 6690 Nez Perce Drive 860 Hiawatha Drive Chanhassen, MN 55317 Chanhassen, MN 55317 Chanhassen, MN 55317 John Myskevitz A. & M.J. Klingelhutz Trust Brian & Syzanne Cooper 900 Hiawatha Drive c/o Aloysius & M.J. Klingelhutz 1000 Lake Lucy Road - Chanhassen, MN 55317 8600 Great Plains Blvd. Chanhassen, MN 55317 Chanhassen, MN 55317 Robert & Teresa Drake Terry & Linda Barck Bennett & Sharon Morgan 980 Lake Lucy Road 960 Lake Lucy Road 1935 Wayzata Blvd. West Chanhassen, MN 55317 Chanhassen, MN 55317 Long Lake, MN 55356 Todd & Gayle Lantto James & Susan Duchene Steven & Collette McKinnon 981 Lake Lucy Road 961 Lake Lucy Road 941 Lake Lucy Road Chanhassen, MN 55317 Chanhassen, MN 55317 Chanhassen, MN 55317 Paul & Amy Hanson Boeck-Kevitt Partnership Frank & Marilyn Beddor 921 Lake Lucy Road 7441 Jolly Lane 7951 Powers Blvd. Chanhassen, MN 55317 Crystal, MN 55428 Chanhassen, MN 55317 Daniel & Sharon Rogers Carter & Kim Kelly Donald Shearer & K. Poppitz 6500 Nez Perce Drive 6580 Nez Perce Drive 900 Vineland Court Chanhassen, MN 55317 Chanhassen, MN 55317 Chanhassen, MN 55317 Steven Jaiger Todd Cocallas James & Kari Ledin 880 Vineland Court 860 Vineland Court 840 Vineland Court Chanhassen, MN 55317 Chanhassen, MN 55317 Chanhassen, MN 55317 Richard & Nancy Hajt Craig 7 A. Gagnon David & Paula Donna 820 Vineland Court 861 Vineland Court 881 Vineland Court Chanhassen, MN 55317 Chanhassen, MN 55317 Chanhassen, MN 55317 Douglas & Darlene Olsen Daniel & Janet Syverson Duane & Renelle Ulrich 901 Vineland Court 921 Vineland Court 6581 Nez Perce Drive Chanhassen, MN 55317 Chanhassen, MN 55317 Chanhassen, MN 55317 Michael Mooney & J. Fishman Peter Ennenz & Caroly Pare John & Joanne Doyle 6530 Fox Path 6540 Fox Path 6550 Fox Path Chanhassen, MN 55317 Chanhassen, MN 55317 Chanhassen, MN 55317 Frederich Bruno & M.A. Skalicky William & Ann Miller Jimmy & Mary Roane 6560 Fox Path 6561 Fox Path 6571 Fox Path Chanhassen, MN 55317 Chanhassen, MN 55317 Chanhassen, MN 55317 CARVER COUNTY ABSTRACT AND TITLE CO., INC. 6+ CARVER COUNTY (612)448-5570 201 Chestnut St.N. FAX 612)4-48-5155 ABSTRACT&TITLF. P.O.Box 106 Dale B. Kutter Chaska,MN 55318 David E. Moonen July 2, 1993 Todd/Owens 6661 Yvcz--Perce Dr. Chanhassen, MN 55317 According to the 1993 Tax Books in the Carver County Treasurers Office the following persons are listed as owners of the property within Carver County, Minnesota, which lies within 500 feet of the following described property: Lots 372, 373, 374, 375, 376, 377, 378, 379, 380, 381 , 382, 383, 384, 403, 404, 405, 406, 407, 408, 409, 410, 411, Carver Beach, according to the plat thereof on file and of record in the office of the Regstrar of Titles, Carver County, Minnesota. 1 . Nicolette Rosel Randall 8. Ramona W. Beckman 6680 Nez Perce Dr. 6670 Hopi Rd. Chanhassen, MN 55317 Chanhassen, MN 55317 2. Gregory & B. Peppersack 9. E. & V. Keefer 940 Western Dr. 6681 Nez Perce Dr. Chanhassen, MN 55317 Chanhassen, MN 55317 3. Donald W. & Carol M. Zalusky 10. Daniel J. & Karen A. Woitalla 960 Western Dr. 6689 Nez Perce Chanhassen, MN 55317 Chanhassen, MN 55317 4. Steven & Gloria Ray 11. Nadean Marie Collver 920 Western Dr. 6686 Hopi Rd. Chanhassen, MN 55317 Chanhassen, MN 55317 5. Chin Van & N. Nguyen 12. Jeffrey R. Braiedy & Tami L. Falkosky 900 Western Dr. 850 Western Dr. Chanhassen, MN 55317 Chanhassen, MN 55317 6. Willard & N. Shoberg 13. James P. Cosgrove 980 Western Dr. 6679 Hopi Rd. Chanhassen, MN 55317 Chanhassen, MN 55317 Contract for Deed: Nadean Marie Collver 7. Betty M. Johnson 6694 Nez Perce Dr. 14. Craig A. & Kimberly Anderson Chanhassen, MN 55317 6683 Hopi Rd. Chanhassen, MN 55317 15. Frank Lieble 26. David A. & Linell B. Santella C/0 ALbert Otterdahl 881 Western Dr. 6715 Nez Perce Dr. Chanhassen, MN 55317 Chanhassen, MN 55317 27. Steven P. & Yvonne M. Hayes 16. William S. & Maria Peden 6690 Nez Perce Dr. 6687 Hopi Rd. Chanhassen, MN 55317 Chanhassen, MN 55317 — 28. Kenneth A. Morrill 17. State of Minnesota in Trust 860 Hiawatha Dr. (no address given) Chanhassen, MN 55317 18. Victoria Lynn Sanchez-Boice 29. John D. Myskevitz 9390 Foxford Rd. 900 Hiawatha Dr. Chanhassen, MN 55317-8684 Chanhassen, MN 55317 19. Evelyn A. Prestemon 30. A. & M. J. Klingelhutz Trust 6680 Deerwood Dr. C/O Aloysius & M. J. Klingelhutz — Chanhassen, MN 55317 8600 Great Plains Blvd. Life Estate: Michael J. & Chanhassen, MN 55317 Paula Wegler 31. Brian P. & Suzanne R. Cooper 20. Mrs. Leonard Larson 1000 Lake Lucy Rd. 3033 43rd Ave. S. Chanhassen, MN 55317 Minneapolis, MN 55406 — Contract for Deed: Kelly Ernst 32. Robert I. III & Teresa Drake 980 Lake Lucy Rd. 21 . Albert & Elaine Otterdahl Chanhassen, MN 55317 — 6715 Nez Perce Dr. Chanhassen, MN 55317 33. Terry A. & Linda J. Barck 960 Lake Lucy Rd. 22. City of Chanhassen Chanhassen, MN 55317 — C/O City Treasurer 690 Coulter Dr. 34. Bennett & Sharon Morgan P.O. Box 147 940 Lake Lucy Rd. — Chanhassen, MN 55317 Chanhassen, MN 55317 23. Bruce John Schurmann 35. Countryside Management _ 116 Elm St. N. 1935 Wayzata Blvd. W. Lester Prairie, MN 55354 Long Lake, MN 55356 24. David & Marilynn M. Cook 36. Todd Michael & Gayle A. Lantto — 941 Western Dr. 981 Lake Lucy Rd. Chanhassen, MN 55317 Chanhassen, MN 55317 25. Mathias & Judith Jacobs 37. James P. & Susan M. Duchene 921 Western Dr. 961 Lake Lucy Rd. Chanhassen, MN 55317 Chanhassen, MN 55317 38. Stephen David McKinnon & 49. Craig & A. Gagnon Collette M. A. McKinnon 861 Vineland Ct. 941 Lake Lucy Rd. Chanhassen, MN 55317 Chanhassen, MN 55317 50. David & Paula Donna 39. Paul H. & Amy M. Hanson 881 Vineland Ct. 921 Lake Lucy Rd. Chanhassen, MN 55317 Chanhassen, MN 55317 51. Douglas M. & Darlene K. Olsen 40. Boeck-Kevitt Partnership 901 Vineland Ct. 7441 Jolly Ln. Chanhassen, MN 55317 Crystal, MN 55428 Contract for Deed: Nancy K. Raddahl 52. Daniel J. & Janet L. Syverson 921 Vineland Ct. 41 . Frank Jr. & Marilyn A. Beddor Chanhassen, MN 55317 7951 Powers Blvd. Chanhassen, MN 55317 53. Duane M. & Renelle R. Ulrich 6581 Nez Perce Dr. 42. Daniel J. Rogers & Sharon K. Chanhassen, MN 55317 Peterson-Rogers 6500 Nez Perce Dr. 54. Michael R. Mooney & Jodi Fishman Chanhassen, MN 55317 6530 Fox Path Chanhassen, MN 55317 43. Carter David Kelly & Kimberly M. Kelly 55. Peter Ennenz & Carolyn E. Pare 6580 Nez Perce Dr. 6540 Fox Path Chanhassen, MN 55317 Chanhassen, MN 55317 44. Donald S. Shearer & Karen M. Poppitz 56. John B. & Joanne S. Doyle 900 Vineland Ct. 6550 Fox Path Chanhassen, MN 55317 Chanhassen, MN 55317 45. Steven Jaiger 57. Frederick K. Bruno & Mari Ann Skalicky 880 Vineland Ct. 6560 Fox Path Chanhassen, MN 55317 Chanhassen, MN 55317 46. Todd E. Cocallas 58. William P. Jr. & Ann K. Miller 860 Vineland Ct. 6561 Fox Path Chanhassen, MN 55317 Chanhassen, MN 55317 47. James T. & Kari L. Ledin 59. Jimmy M. & Mary E. Roane _ 840 Vineland Ct. 6571 Fox Path Chanhassen, MN 55317 Chanhassen, MN 55317 48. Richard Joseph Hajt & Nancy Ann Hajt 820 Vineland Ct. Chanhassen, MN 55317 . .-��/(tot 9 `C"r.�er County Abstract & Title Co. , Inc. This company does not assume any liability for the accuracy of this report. C I TY 0 F PC DATE: 8/4/93 � C H AN H S S E N CC DATE: 8/23/93 CASE #: 93-15 SUB By: Aanenson:v STAFF REPORT PROPOSAL: Preliminary plat to subdivide 3.30 acres (including two lots of record) into 4 single family lots. Z LOCATION: 6301 Church Road, north of Highway 7 < V J _ APPLICANT: Greg Reed 6301 Church Road Excelsior, MN 55331 PRESENT ZONING: RSF, Residential Single Family ACREAGE: 3.30 acres DENSITY: .825 units/acre ADJACENT ZONING — Q AND LAND USE: N - City of Shorewood, Residential S - Highway 7, Residential Single Family E - Residential Single Family, 10 acre home site — 1.1 W - Minnewashta Meadows Subdivision, Residential Single Family Lii WATER AND SEWER: Is available to the site PHYSICAL CHARACTER: The site is relatively flat and currently used as a horse pasture, v There is one home on the site. There is a tree line along the eastern property limits. 2000 LAND USE PLAN: Low Density Residential "' �.-• 6 rrf rn M in M rei N • N I I '�1, w MGN •R RC. 1 maid OW 11141,..railliril.. 'i\ .4011040 4iirm, \ w C A EN: ';'41_,L \ iii % ihillp 410#1.. .i .Q .,_ og, 24. ay. uswir,.,.----_--, .--„____ . ij / la°'N te>.-7 • \ : 31 • o . wS . 7 ,,, .r.str: ZIP*tbrain �-_i I • tB 0 c-", r:ttlY" e; 41"4 ,--.-"-'. • •\ r ,.. / ubeci- " PIA .5 f • .��p rir �' 1 i fwilgS34-1"vis : :1 f, ,t4g � LAKE Jam- WRY L A K E ,1 , , ;- - I ov INNEWW A SHTA F RD REG/ONAL PUD- — - - R a r_ PUD R ii 4 .. 2!i'd -,!----;_bn !FleV. _ ' L ► ; RR I DR'VE "L' ( -. II ./., ..,-, • fili )11 I ''4.4 S . ! i ' / ' - 1.3 , i ! le Q i a 11 j V v I _ + I JD .---,.._-_, i ...1.:).0 - — --- - - --- - -- - - 1 7 '� N ar Church Road Addition August 4, 1993 Page 2 PROPOSAL/SUMMARY The applicant, Greg Reed, is proposing a 4 lot subdivision. This property is part of the Larson First Addition which was platted in 1981. The Larson plat is 3.30 acres and included two lots. Lot 1 has an existing home on it. Lot 2 is landlocked except for access off of State Highway 7. The proposed subdivision proposes access to Lot 2 (now Lot 4) via a private drive off of Church Road. Access to the property to the developing lots will be from a private driveway off of Church Road. The city ordinance allows up to 4 homes off of a private drive. The applicant had proposed to access one lot from West 62nd Street. Public Safety is recommending that the access be off of the private road instead for fire and emergency access reasons. The driveway off of West 62nd Street is over 440 feet long and the fire hydrant is behind the home. Public Safety is concerned with locating the hydrant in an emergency when the home will be addressed off of West 62nd and the hydrant will be located off of the private drive. They are recommending that this home be accessed and addressed off of the private street. Staff supports approval of this subdivision in that is resolves access to Lot 2 of the Larson Subdivision which is currently limited to Highway 7 and all are over 20,000 square feet. If it were possible, it would be desirable to tie access of this property with the property to the east (the Schmid's). When this property does develop, it will have to be accessed from West 62nd Street. BACKGROUND This property is zoned RSF, Residential Single Family. The site is bordered on the north by West 62nd Street and the city of Shorewood. West of the property is Church Road and Minnewashta Meadows Subdivision which is zoned RSF and on the east is the William Schmid property which is 10.37 acres in size and is also zoned RSF. The property is bordered on the south by Highway 7. There are two homes on the lot to the south of the subject site on Church Road and 4 lots north of the site on Church Road. Access to this site is off of Church Road and West 62nd Street. The existing home will still have access from the existing driveway onto Church Road. Staff is recommending that all access via Church Road for fire and safety reasons. STREETS/ACCESS The development is proposed to be served via a 20 foot wide private driveway from Church Road. The shape and location of this parcel restricts construction of a public street to service the development. The city's preferred access alternative would be to extend Meadow Lane easterly of Church Road into a cul-de-sac. The developer apparently does not have the opportunity to purchase additional property to construct a full street; therefore, the private driveway alternative is acceptable. The parcel is also bordered by West 62nd Street on the north. Church Road Addition August 4, 1993 Page 3 To extend a public street or private driveway from West 62nd Street does not appear to be the most economical way to access the site. Staff does recommend that the driveway access for Lot 1 be relocated to access from the private driveway extension from Church Road and not from West 62nd Street. A cross-access or driveway easement should be conveyed across Lot 3 in favor of Lots 1 and 4 in addition to an overall maintenance agreement for use and maintenance responsibilities of the private driveway between the benefitting lots. The city will not be responsible for maintenance of the proposed driveway. Public Safety recommends that the private street be named and the city install the appropriate street signs and addresses at the driveway entrance. Cost of the street signs would be billed back to the developer in accordance to the development contract. UTILITIES Municipal sanitary sewer and water currently exists in Church Road. The plans propose extending sewer and water service along the private driveway to serve Lots 1, 3 and 4. Lot 2 is already connected to sewer and water service via Church Road. Utility extension to the subdivision should be in accordance with the City's latest edition of Construction Standard Specifications and Detail Plates. Detailed construction drawings will be necessary in conjunction with final platting for staff review and City Council approval. Since the utility extension will be eventually owned and maintained by the city, the applicant shall enter into a development — contract with the city and provide the necessary financial security to guarantee the installation of the public improvements. Extension of water and sewer service involves open cutting Church Road. Staff recommends that water service should be extended from the existing water stub located on the east side of Church Road across from Meadow Lane. This would limit open cutting of Church Road to only the northbound lane, thus maintaining one lane of traffic. Upon completion and acceptance, the utility improvements lying within public easements on Lot 3 shall become city property except those utilities lying north of the southerly 30 feet of Lot 3. Those utilities consist of an individual sewer and water service which shall be owned and maintained by the benefitting property owner (Lot 1). GRADING AND DRAINAGE The overall site is relatively flat and void of tree vegetation. The neighborhood drainage pattern is from northeast to the southwest via overland sheet flow. The plans do not indicate altering the neighborhood drainage patterns except for construction of the new homes. Staff feels that site drainage can easily be accommodated to drain around the new homes and maintain the existing neighborhood drainage patterns. Staff does not anticipate increasing the storm water runoff dramatically to require on-site storm water retention from either quantity or quality purposes. However, in lieu of a storm water retention pond, the applicant should pay the cash contribution based on the development's size and characteristics to the City's Storm Water Church Road Addition August 4, 1993 Page 4 Management Fund. The cash contribution will be determined by City staff in accordance with the City's Surface Water Management Plan. One of the neighbors was concerned about existing field tiles which may intersect the parcel. The City's policy is for all drain tile systems to be reconnected or relocated to maintain the current drainage system. EASEMENTS The appropriate cross access or driveway easements should be conveyed between Lots 1, 3 and 4 for the use of the common driveway out to Church Road. In addition, a drainage and utility easement should also be dedicated on the plat for utility extension along the private driveway as well as through Lot 3 to service Lot 1. LANDSCAPING/TREE PRESERVATION The majority of this site has been used for a horse pasture and has few trees except for the eastern property line which has a long border of trees. These trees shall remain untouched by this development. On Tuesday July 27, 1993, the Park and Recreation Commission met to review this plat. Mr. Larson was in attendance. The Commission recommended park and trail fees shall be paid in full at the rate then in force, upon building permit application. A trail easement shall also be granted along the frontage of Church Road. COMPLIANCE TABLE Lot square footage Lot Width at Street Lot Depth Required Provided Required Provided Required Provided Lot 1 15,000 57,180 90' 60 - 90' 125' 572' Lot 2 15,000 27,217 90' 149' 125' 228' Lot 3 15,000 22,940 90' 147' 125' 155' Lot 4 15,000 29,419 90' 214' 125' 131' All of the lots meet the 15,000 square footage requirement and meet the setback standards except for Lot 3. Lot 3, which is a flag lot, will have to be modified to meet the flag lot setback standards. The square footage on flag lots are calculated without the neck of the flag. The lot, as proposed including the neck, is 29,992 square feet, but as per ordinance is actually 22,940 Church Road Addition August 4, 1993 Page 5 square feet. The lot still meets the minimum lot size of 15,000 square feet. Setbacks on a flag lot are 30 feet in the front facing the neck portion of the lot and 20 feet on the side yards. The home, as placed, does not meet the 30 rear yard setback. There is sufficient space to move the home and still meet the setback. The proposed home meets the 20 foot side yard setback requirement. RECOMMENDATION Staff recommends the Planning Commission adopt the following motion: "The Planning Commission recommends approval of the preliminary plat (93-15) for Church Road Addition as shown on the plans dated July 7, 1993, and subject to the following conditions: 1. Compliance with the flag lot standards in the RSF district. 2. The applicant shall enter into a development contract with the City and provide the City with the necessary financial security to guarantee proper installation of the public improvements in compliance with the conditions of approval for final plat. 3. Park and trail fees shall be paid in full at the rate then in force, upon building permit application. A trail easement shall be granted along the frontage of Church Road. 4. The applicant shall obtain and comply with the appropriate permitting agencies i.e. MnDOT, Watershed District, MPCA, Health Department, MWCC. 5. The developer shall construct the public utility improvements. Upon completion and acceptance, utility improvements lying within public easements on Lot 3 shall become City property except those utilities (sewer and water) lying north of the southerly 30 feet of Lot 3. Those utilities shall be owned and maintained by the property owner of Lot 1. The individual house services outside of the easement shall be privately owned and maintained by the property owner. 6. The construction plans and specifications for the public improvements shall be in accordance with the City's latest edition of Standard Specifications and Detail Plates. Detailed construction drawings and specifications shall be submitted for staff review and City Council approval. 7. In lieu of constructing on-site retention ponds, the applicant shall provide the City Storm Water Management Fund with a cash contribution in the amount to be determined by staff in accordance with the City Storm Water Management Plan. Church Road Addition August 4, 1993 Page 6 8. The applicant shall name the private driveway and City shall install the appropriate street signage. The cost of the sign shall be billed back to the developer in accordance with the development contract. 9. A cross access or driveway easement including a maintenance agreement shall be drafted for Lots 1, 3 and 4. 10. The City will not permit open cutting all the way across Church Road for extension of utilities. The applicant will be required to extend the existing water stub across from Meadow Lane on the east boulevard of Church Road along the private into the development. 11. Access to Lot 1 shall be via the private driveway access off of Church Road and not West 62nd Street. Lot 4 shall have no access onto State Trunk Highway No. 7. 12. The proposed private driveway shall be built to the City's private driveway ordinance standard which is a 20 foot paved surface to a 7 ton design. 13. Erosion control measures shall be consistent with the City of Chanhassen's Best Management Practice Handbook. 14. All drain tile systems disturbed in conjunction with site improvements shall be reconnected or relocated to maintain the existing drainage through the site. ATTACHMENTS 1. Memo from Dave Hempel dated July 28, 1993. 2. Memo from Mark Littfin dated July 27, 1993. 3. Memo from Todd Hoffman dated July 29, 1993. 4. Notice of hearing and property owner names. CITY TF tc‘ CHANHASSEN 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937-1900 • FAX (612) 937-5739 - MEMORANDUM TO: Kate Aanenson, Senior Planner _ FROM: Dave Hempel, Assistant City Engineer /4f4----- DATE: July 28, 1993 SUBJ: Review of Preliminary Plat Proposal for Church Road Addition — LUR File No. 93-16 Upon review of the preliminary plat dated July 6, 1993 prepared by Advance Surveying & Engineering Company, I offer the following comments and recommendations: STREETS/ACCESS The development is proposed to be served via a 20-foot wide private driveway from Church Road. The shape and location of this parcel restricts construction of a public street to service the development. The City's preferred access alternative would be to extend _ Meadow Lane easterly of Church Road into a cul-de-sac. The developer apparently does not have the opportunity to purchase additional property to construct a full street;therefore, the private driveway alternative is acceptable. The parcel is also bordered by West 62nd — Street on the north. To extend a public street or private driveway from West 62nd Street does not appear to be the most economical way to access the site. Staff does recommend that the driveway access for Lot 1 be relocated to access from the private driveway extension _ from Church Road and not from West 62nd Street. A cross-access or driveway easement should be conveyed across Lot 3 in favor of Lots 1 and 4 in addition to an overall maintenance agreement for use and maintenance responsibilities of the private driveway _ between the benefitting lots. The City will not be responsible for maintenance of the proposed driveway. Public Safety recommends that the private street be named and the City install the appropriate street signs and addresses at the driveway entrance. Cost of the — street signs would be billed back to the developer in accordance to the development contract. Ilk �4) PRINTED ON RECYCLED PAPER _ Kate Aanenson July 28, 1993 Page 2 UTILITIES Municipal sanitary sewer and water currently exists in Church Road. The plans propose on extending sewer and water service along the private driveway to serve Lots 1, 3 and 4. Lot 2 is already connected to sewer and water service via Church Road. Utility extension to the subdivision should be in accordance with the City's latest edition of Construction Standard Specifications and Detail Plates. Detailed construction drawings will be necessary in conjunction with final platting for staff review and City Council approval. Since the utility extension will be eventually owned and maintained by the City, the applicant shall enter into a development contract with the City and provide the necessary financial security to guarantee the installation of the public improvements. Extension of water and sewer service involves open cutting Church Road. Staff recommends that water service should be extended from the existing water stub located on the east side of Church Road across from Meadow Lane. This would limit open cutting of Church Road to only the northbound lane thus maintaining one lane of traffic. Upon completion and acceptance, the utility improvements lying within public easements on Lot 3 shall become City property except those utilities lying north of the southerly 30 feet of Lot 3. Those utilities consist of an individual sewer and water service which shall be owned and maintained by the benefitting property owner (Lot 1). GRADING AND DRAINAGE The overall site is relatively flat and void of tree vegetation. The neighborhood drainage pattern is from northeast to the southwest via overland sheet flow. The plans do not indicate altering the neighborhood drainage patterns except for construction of the new homes. Staff feels that site drainage can easily be accommodated to drain around the new homes and maintain the existing neighborhood drainage patterns. Staff does not anticipate increasing the storm water runoff dramatically to require on-site storm water retention from either quantity or quality purposes. However, in lieu of a storm water retention pond, the applicant should pay the cash contribution based on the development's size and characteristics to the City's Storm Water Management Fund. The cash contribution will be determined by City staff in accordance with the City's Surface Water Management Plan. EASEMENTS The appropriate cross access or driveway easements should be conveyed between Lots 1, 3 and 4 for the use of the common driveway out to Church Road. In addition, a drainage and utility easement should also be dedicated on the plat for utility extension along the private driveway as well as through Lot 3 to service Lot 1. Kate Aanenson July 28, 1993 Page 3 — MISCELLANEOUS _ One of the neighbors was concerned about existing field tiles which may intersect the parcel. The City's policy is for all drain tile systems to be reconnected or relocated to maintain the — current drainage system. RECOMMENDED CONDITIONS OF APPROVAL — 1. The applicant shall enter into a development contract with the City and provide the City with the necessary financial security to guarantee proper installation of the — public improvements in compliance with the conditions of approval for final plat. 2. The applicant shall obtain and comply with the appropriate permitting agencies i.e. — MnDOT, Watershed District, MPCA, Health Department, MWCC. 3. The developer shall construct the public utility improvements. Upon completion and — acceptance,utility improvements lying within public easements on Lot 3 shall become City property except those utilities (sewer and water) lying north of the southerly 30 feet of Lot 3. Those utilities shall be owned and maintained by the property owner — of Lot 1. The individual house services outside of the easement shall be privately owned and maintained by the property owner. 4. The construction plans and specifications for the public improvements shall be in accordance with the City's latest edition of Standard Specifications and Detail Plates. _ Detailed construction drawings and specifications shall be submitted for staff review and City Council approval. 5. In lieu of constructing on-site retention ponds, the applicant shall provide the City Storm Water Management Fund with a cash contribution in the amount to be determined by staff in accordance with the City Storm Water Management Plan. _ 6. The applicant shall name the private driveway and City shall install the appropriate street signage. The cost of the sign shall be billed back to the developer in — accordance with the development contract. 7. A cross access or driveway easement including a maintenance agreement shall be — drafted for Lots 1, 3 and 4. 8. The City will not permit open cutting all the way across Church Road for extension — of utilities. The applicant will be required to extend the existing water stub across from Meadow Lane on the east boulevard of Church Road along the private into the Kate Aanenson — July 28, 1993 Page 4 development. — 9. Access to Lot 1 shall be via the private driveway access off of Church Road and not West 62nd Street. Lot 4 shall have no access onto State Trunk Highway No. 7. — 10. The proposed private driveway shall be built to the City's private driveway ordinance standard which is a 20-foot paved surface to a 7-ton design. 11. Erosion control measures shall be consistent with the City of Chanhassen's Best Management Practice Handbook. — 12. All drain tile systems disturbed in conjunction with site improvements shall be reconnected or relocated to maintain the existing drainage through the site. jms c: Charles Folch, City Engineer CITYOF CHANHASSEN690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937-1900 • FAX (612) 937-5739 -e MEMORANDUM — TO: Kate Aanenson, Senior Planner FROM: Mark Littfin, Fire Marshal DATE: July 27, 1993 SUBJ: Church Road Subdivision - Planning Case 93-15 Sub. I have reviewed the following project and have the follow requirement: 1) With reference to lot 1, the proposed house and driveway with access off W. 62nd Street does not have proper accessibility to Chanhassen fire hydrants system. Possible solutions: a) Provide additional fire hydrant within 300' of proposed dwelling. This distance shall be measured by the most direct route of fire apparatus. — b) Provide driveway access to lot 1 from the proposed 20' paved driveway. c) Fire sprinkler the proposed house on lot 1. Any � PRINTED ON RECYCLED PAPER CITY OF CHANHASSEN \ - 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 • (612) 937-1900 • FAX (612) 937-5739 — MEMORANDUM TO: Kate Aanenson, Planner II FROM: Todd Hoffman, Park and Recreation Director DATE: July 29, 1993 SUBJ: Church Road Addition _ The Park and Recreation Commission reviewed the Church Road Addition on July 27, 1993. Mr. Greg Reed, the applicant was in attendance. A copy of the staff report presented to the commissioners is attached. Upon concluding their discussion that evening, the commissioners _ approved the following recommendation: "It is recommended that full park and trail fees be accepted as a part of the platting of the Church Road Addition. These fees to be collected at the rate in force upon building permit application. Current park and trail fees are $600.00 and $200.00, respectively. Furthermore, a 20 foot wide easement for potential trail purposes be required along Church Road." All commissioners voted in favor and the motion was carried. Its«: PRINTED ON RECYCLED PAPER CITY 0 F PRC DATE: 7/27/93 \ L CC DATE: CIIA ASSEN , r HOFFMAN:k STAFF REPORT PROPOSAL: Preliminary Plat to Subdivide 4 acres into 4 Single Family Lots on Property 1- Zoned RSF, Church Road Addition I LOCATION: 6301 Church Road (See Vicinity Map) EL APPLICANT: Greg Reed Advance Surveying & Engineering CL 6301 Church Road 5300 South Highway 101 Excelsior, MN 55331 Minnetonka, MN 55345 I I PRESENT ZONLNG: RSF, Residential Single Family ADJACENT ZONING AND LAND USE: N - RSF, West 62nd Street S - RSF, Highway 7 E - RSF W - RSF, Church Road COMPREHENSIVE PLAN: i 0 Cathcart Park, located immediately across Church Road, fulfills the city's park requirement standards L W for the Church Road Addition as identified in the City's Comprehensive Plan. COMPREHENSIVE TRAIL PLAN: The City's Trail Plan does not identify any trails immediately adjacent to this subdivision. Church Road, however, is the natural connection between the North Railroad Corridor Trail and the Minnewashta Parkway trail now is being constructed. 1 1_._. i r 1 1 C>J __ Q J W C $ R W' iY QR < a v ¢ -- D •••• •••••••=.4MAPLE O E'ry0 • e 0 o� 1 e,_...ii c SIT 0°. c-1• 0 'i. ,,4 0° ti :C44.., NapoM° • - f fr% �1' "-N � GSR . 7. O SI l'. 0 EN cl c cm "L� b600 I 4 K F VICINITY MAP (NO SCALE) - ...c-c....... NO 6'03BL 22X34 NOTICE OF PUBLIC HEARING ,C A "rap 101 t;sal / - PLANNING COMMISSION MEETING i , Wednesday, August 4, 1993, 7:30 P.M. o�--� y o, i City Hall Council Chambers ••• \ `! 12 690 Coulter Drive • Alit,�},_ Project: Church Road Addition •_ Developer: Greg Reed s�' � • Location: 6301 Church Road r Notice: You are invited to attend a public hearing about a development proposed in your area. Greg Reed to subdivide 4 acres into 4 single family lots on property zoned RSF, Residential Single Family and located at 6301 Church Road, Church Road Addition. What Happens at the Meeting: The purpose of this public hearing is to inform _ you about the developer's request and to obtain input from the neighborhood about this project. During the meeting, the Planning Commission Chair will lead the public hearing through the following steps: _ 1. Staff will give an over view of the proposed project. 2. The Developer will present plans on the project. 3. Comments are received from the public. 4. Public hearing is closed and the Commission discusses project. The Commission will then make a recommendation to the City Council. Questions or Comments: If you want to see the plans before the meeting, please stop by City Hall during office hours, 8:00 a.m. to 4:30 p.m., Monday through Friday. If you wish to talk to someone about this project, please contact Kate at 937-1900. If you choose to submit written comments, it is helpful to have one copy to the Planning Department in advance of the meeting. Staff will provide copies to the Commission. Notice of this public hearing has been published in the Chanhassen Villager on July 22, 1993. JJ _.. i I* - s1 I . � F NOTICE OF PUBLIC HEARING ,/ C A 47+' _ i " Al. A Mir- Ira: PLANNING COMMISSION MEETING ; w : 3, r-" _ as Wednesday, August 4, 1993, 7:30 P.M. a � �.� o ± i City Hall Council Chambers 690 Coulter Drive dit.41-1,..,„ ,% _ 1 ', --- — 5 � � • 7 �`jr ♦ % Project: Church Road Addition i4 ,; a17„ Developer: Greg Reed , - _ il - — Location: 6301 Church Road r = Notice: You are invited to attend a public hearing about a development proposed in — your area. Greg Reed to subdivide 4 acres into 4 single family lots on property zoned RSF, Residential Single Family and located at 6301 Church Road, Church Road Addition. What Happens at the Meeting: The purpose of this public hearing is to inform you about the developer's request and to obtain input from the neighborhood about this — project. During the meeting, the Planning Commission Chair will lead the public hearing through the following steps: 1. Staff will give an over view of the proposed project. 2. The Developer will present plans on the project. 3. Comments are received from the public. 4. Public hearing is closed and the Commission discusses project. The Commission will then make a recommendation to the City Council. Questions or Comments: If you want to see the plans before the meeting, please stop by City Hall during office hours, 8:00 a.m. to 4:30 p.m., Monday through Friday. If you _ wish to talk to someone about this project, please contact Kate at 937-1900. If you choose to submit written comments, it is helpful to have one copy to the Planning Department in advance of the meeting. Staff will provide copies to the Commission. Notice of this public hearing has been published in the Chanhassen Villager on July 22, 1993. A CATHCART M/NNEWASHTA PARK HEIGHTS PARK O 0 o 0 o p 7 p 00 m• 0 fn rn yr rn 76 I 09,21..1.. ii mil Mil ill. i:\1. -'.. .,,/(7-4. ilik. _A 4 Iv sec mow . •IKE \ . _ _ _ ._ .,,,, iii I, . tW VI4-7 "ism. alkw------------_-.--T-,--, C • " .1.--- rip% Ur / - 511P. V, 6 . \ 0 ', - ; C i i i 1 ' Ili - - \ - i • , - ., i --- -- ----- --- _, r). _.,.... ....... , F ! ..., . \ \ _. G , .:c41). 1.4.1111:11111FS. :--.-4 . ____ 2 ' A i 1- lit . III dr 6:7-Ar-.77---114 • • 7 v`-`-- LAKE LAKE — ;. .. C.A*S--L Q - ---� --- r ' J-'' .4' 5-;--4 velallrty.; , : 0 - _ _, _ M / N N E W A SHTA_ - ---RSF RD REG/O/ 1. K %GS 14:-.A:._ -- PUD-R �- - -- , . , — a t ��.4' E �Q ; giv PUL' Z k ,ST,i OE : Q � R= POS 2 � `1�' ` �� I i � � y � � RR ! - - s T4,, - . - _ • \p� • 11 ,, .. 4 °4111". n I •I 'James & Jean Way Kenneth Durr David Obee 6641 Minnewashta Pky. 4830 Westgate Road 19000 James Avenue South Excelsior, MN 55331 Minnetonka, MN 55345 Wayzata, MN 55391 —Harry & C. Campbell Stephen Spartz Edwar and Hannah Willson 6241 Church Road 3670 Hwy. 7 3530 Maplewood Circle Excelsior, MN 55331 Excelsior, MN 55331 Excelsior, MN 55331 • Gerald & Suan Wenkus Frank Golle, Jr. Timothy & Sheryl Lattemer —3531 Maplewood Circle 3780 Meadow Lane 3790 Meadow Lane Excelsior, MN 55331 Excelsior, MN 55331 Excelsior, MN 55331 Kevin & Robin O'Meara Gary & Marrianne Sundermeyer Jeffrey Wassenaar 3814 Meadow Lane 3828 Meadow Court 3842 Meadow Court Excelsior, MN 55331 Excelsior, MN 55331 Excelsior, MN 55331 Jeffrey Berge & D. Zoellmer Gregory 7 D. Baird Davonne & L. Boualouang 3856 Meadow Lane 3870 Meadow Lane 3884 Meadow Lane _Excelsior, MN 55331 Excelsior, MN 55331 Excelsior, MN 55331 —Peter Krebsbach & P. Beyer Terryl & C. Buiman Stephen Beauchamp 3891 Meadow Lane 3861 Meadow Lane 3831 Meadow Lane Excelsior, MN 55331 Excelsior, MN 55331 Excelsior, MN 55331 Gary & Maureen Carlson David & Liana Kiff Clinton Wager —3831 62nd Street West 3771 Meadow Lane 6320 Church Road Excelsior, MN 55331 Excelsior, MN 55331 Excelsior, MN 55331 Michael Schuler & K. Otto Thomas & S. Wright Merlyn & Betty Wanous _6330 Church Road 3611 Ironwood Road 6231 Church Road Excelsior, MN 55331 Excelsior, MN 55331 Excelsior, MN 55331 Craig Miller City of Chanhassen City of Shorewood 6450 Minnewashta Way City Treasurer 5755 Country Club Road —Excelsior, MN 55331 Shorewood, MN 55331 CITY OF CHANHASSEN 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN. MINNESOTA 55317 (612) 937-1900 • FAX (612) 937-5739 MEMORANDUM TO: Planning Commission FROM: Kate Aanenson, Senior Planner DATE: July 30, 1993 SUBJ: Minimum Lot Size in the Rural Area In June of 1992, the City Council adopted a amendment to the zoning ordinance regarding minimum lot sizes in the A2 and RR Districts. When this item originally appeared before the Planning Commission and City Council, it was the intent to leave the existing large lot subdivisions intact. Only newly created lots would be allowed the 15,000 square foot lot size. The minimum lot size was prefaced on the fact that two septic sites would be accommodated on the lot. The way the ordinance was adopted, it did not state that only newly created subdivisions would be allowed 15,000 square feet. The city has received requests from Surridge Addition to further subdivide their lots because sewer and water is now available in that area. Other residents of the addition are concerned because they purchased lots believing that the minimum area would remain at 21/2 acres. There are two issues of concern. First, should existing rural/large lot subdivisions be allowed to further subdivide if sewer and water are available; and the second issue is the RR District does not require rezoning to subdivide to 15,000 square foot lots. Staff is recommending that any request to subdivide to a 15,000 square foot lot should be rezoned. The way the ordinance reads currently, this is not a requirement. Finally, the rural lot building eligibility requirements (Section 20-906) needs to be amended because it states, "a new single family building may be established or a lot containing an existing single family dwelling may be subdivided only if the following provisions are met: (1) A one unit per acre density is maintained using the following guidelines: 0-19.99 acres equals one (1) single family unit. is X1.0. PRINTED ON RECYCLED PAPER Planning Commission July 30, 1993 Page 2 — 20-29.99 acres equals two (2) single family units. 30-39.99 acres equals three (3) single family units, etc. What this means is that all lots have to be developed at 1 unit per 10 acres. Staff is asking the Planning Commission for direction on how staff should proceed with the amendments for rural lots and for the minimum lot sizes in the A2 and RR Districts. ATTACHMENTS 1. Ordinance No. 170. 2. Section 20-906, Rural lot eligibilities. 3. City Council minutes dated May 18, 1992. 4. Memo from Kate Aanenson dated March 20, 1992. — CITY OF CHANHASSEN CARVER AND HENNTEPIN COUNTIES, MINNESOTA ORDINANCE NO. 170 THE CHANHASSEN CITY COUNCIL ORDAINS: Section 1. Article X. "A-2" Agricultural Estate District Section 20-575, Lot Requirements and Setbacks. The following minimum requirements shall be observed in an A-2 District subject to additional requirements, exceptions, and modifications set forth in this Chapter. (1) The minimum lot size is 15,000 square feet or sufficient, whichever is larger, in size to accommodate two potential septic sites. (2) The minimum lot frontage is (90) feet, except that lots fronting on a cul-de- sac "bubble' or along the outside curve or curvilinear sections shall be (90) fee in width at the building setback line. (3) The minimum lot depth is one hundred twenty-five (125) feet. The location of these lots are conceptually illustrated below. Lot width on neck or flag lots and lots accessed by private drives shall be one hundred (100) feet as measured at the front building setback line. (4) The maximum lot coverage for all structures is twenty (25) percent. (5) The setbacks are as follows: a. For front yards, thirty (30) feet b. For rear yards, thirty (30) feet c. For side yard, ten (10) feet (6) The maximum height is as follows: a. For the principal structure, three (3) stories/forty (40) feet. b. For accessory structures, three (3) stories/forty (40) feet. — Section 2. Article XI "RR" Rural Residential District Sec. 20.595 Lot Requirements and Setbacks The following minimum requirements shall be observed in an "RR" District subject to additional requirements set forth in this chapter. (1) The minimum lot size is 15,000 square feet or sufficient, whichever is larger, in size to accommodate two potential septic sites. (2) The minimum lot frontage is (90) feet, except that lots fronting on a cul-de- sac "bubble' or along the outside curve or curvilinear sections shall be (90) fee in width at the building setback line. (3) The minimum lot depth is one hundred twenty-five (125) feet.. The location of these lots are conceptually illustrated below. Lot width on neck or flag lots and lots accessed by private drives shall be one hundred (100) feet as measured at the front building setback line. (4) The maximum lot coverage for all structures is twenty (25) percent. (5) The setbacks are as follows: a. For front yards, thirty (30) feet b. For rear yards, thirty (30) feet c. For side yard, ten (10) feet (6) The maximum height is as follows: a. For the principal structure, three (3) stories/forty (40) feet. b. For accessory structures, three (3) stories/forty (40) feet. Section 3. Article XXID General Supplemental Regulations shall be amended to read as follows: Sec. 20-906, Rural Lot Buildings Eligibilities Subsection(b)(8) shall be amended to read: Each site must have an area which can support two (2) septic system site on a slope of less than twenty-five (25) percent. Adopted by the Chanhassen City Council this 8th day of June, 1992. A IlEST: /dj, 44 . Don Ashworth, Cin Clerk/Manager Donald J. C . ' , rayor Published in the Chanhassen Villager on 5u1y .13,i542— § 20-906 CHANHASSEN CITY CODE Sec. 20-906. Rural lot building eligibilities. (a) All lots located outside of the Metropolitan Council's Metropolitan Urban Service Area boundary shall be created in conformance to the requirements of article X or XI of this chapter. (b) A new single-family building may be established or a lot containing an existing single-family dwelling may be subdivided only if the following provisions are met: (1) A one-unit per ten-acre density is maintained using the following guidelines: 0-19.99 acres equals one (1)single-family unit. 20-29.99 acres equals two(2)single-family units. 30-39.99 acres equals three (3)single-family units, etc. (2) Existing parcels of record established prior to February 19, 1987, shall be deemed as buildable lots. This provision also applies to those lots affected by paragraph (10). (3) All lots shall have the minimum frontage on a public road as regulated in sections _ 20-575 and 20-595. To reduce the number of driveways on collectors and arterials, up to two (2) parcels will be allowed to be accessed by a private easement. • Supp.No.3 1230.8 ZONING § 20-907 (4) All lots must have soil and water conditions which permit a well. (5) All lots must have conditions which will permit two (2) on-site sewer systems in- stalled in conformance with chapter 19, article W. (6) The one (1) unit per ten-acre density applies to contiguous property under single ownership. Acreage under single ownership, which is not contiguous, cannot be combined for increased density/building eligibility on one (1)of the parcels. Transfer of development rights from one (1)parcel of land to another is not allowed, except as permitted in paragraph (9)below. (7) Once a building eligibility has been used for a property, a development contract must be recorded with the county establishing the number of building eligibilities remain- ing or documenting that no building eligibility remains. Transfer of development rights from one (1)parcel of land to another is not allowed. (8) Each site must have at least one (1) acre of area which can support two (2) septic system sites, a building pad and well with a slope of twenty-five (25)percent or less. (9) Parcels which do not have public street frontage and are landlocked may transfer building eligibilities to an adjacent parcel which does have public street frontage and meets other provisions of this section. (10) Applications for subdivisions in the rural service area as identified in the compre- hensive plan to contain a development density of one (1) unit per two and one-half (21.2) acres will be accepted until 4:30 p.m. on January 15, 1987, if the following information is submitted to the planning department: a. Completion of the application for subdivision. b. Submission of the public hearing list of surrounding property owners. c. Submission of a boundary survey with the proposed lot pattern. d. Submission of required application fees. Further,these applications must also be accompanied by additional data required for preliminary plat approval in a manner which will achieve preliminary plat approval by July 1, 1987 unless the city council deems to table final action on the application until after July 1, 1987. (Ord. No. 80, Art. VI, § 7, 12-15-86) Sec. 20-907. Height regulations. (a) Where the average slope of a lot is greater than one(1)foot rise or fall in seven(7)feet _ of horizontal distance from the established street elevation at the property line, one (1)story in addition to the number permitted in the district in which the lot is situated shall be permitted on the downhill side of any building. (b) The height limitations stipulated elsewhere in this chapter shall not apply to the following: ( (1) Barns, silos, or other farm buildings or structures on farms; church spires, l;elfries, cupolas and domes, monuments, water towers, fire and hose towers, observation 1231 City Council Meeting - Ma" 18, 1992 the snow away from the barricades so what ends up happening is it gets piled up along the barricade so in the wintertime it 'd be non-functional. Mayor Chmiel: Okay. Any other questions? Councilwoman Dimler: So you're saying it's not very feasible. How's it working on Christmas Lake? Charles Folch: That must be the city of Shorewood. That 's not ours. Mayor Chmiel: No, that 's the access to Christmas Lake and they were trying to alleviate the problems with cars going to and from as well I guess. Okay. No other discussions. I'll call the question for the potential of public hearing that would be held on June 8th. Charles Folch: That 's correct . Mayor Chmiel : For the update street and utility improvements to Teton Lane. Councilwoman Dimler: If we don't call for a public hearing, can we stop the project? Mayor Chmiel : That 'd be rather difficult. I think we've got to get all the perspectus and get everything tied in. Councilwoman Dimler: I know. I'm just teasing. Mayor Chmiel : You were being facetious. Councilwoman Dimler: Yes. Resolution =92-63: Councilman Mason moved, Councilwoman Disler seconded to receive the feasibility study update for street and utility improvements to Teton Lane and to call a public hearing for June 8, 1992. All voted in favor except Councilman Workman who wasn't present in the room at the time, and the motion carried. l j;, r COMPREHENSIVE PLAN AMENDMENT AND ZONING ORDINANCE AMENDMENT (FIRST READING) REGARDING MINIMUM LOT SIZES IN THE RURAL SERVICE AREA. Kate Aanenson: I apologize that the original Planning Commission memo didn't go with this report but just to give you some historical perspective of why this is before you. Originally the Met Council had required the 2.5 acre minimum lot size and when we did the Lake Ann Interceptor Agreement we asked them to look at it since we realize that they had now eliminated that. That they agreed that we could also eliminate that minimum standard so in December, 1991 when they adopted that . 1 per 10 still remains in place but there is no minimum. So therefore we took it to the Planning Commission and we went ahead with no minimum. The Planning Commission felt uncomfortable with that because our minimum lot size in the city is 15,000 square feet so they felt it would make sense to be consistent with that minimum lot size. So then we also looked at the rarifications of the 2.5 acre lots, subdivisions that we already have in place such as Timberwood. So what we did is, it 's kind of hard to read this. 30 City Council Meeting • 'ay 18, 1992 Your copy got crosshatched but we recommended that the comprehensive land use plan be amended and that the zoning ordinance be amended in two places. The A2, Rural Estate zone and then the RR zone. And what we're recommending is that those subdivisions that are in place right now continue to have the same minimum lot size which would be 2 1/2 acres but any new subdivisions that would come in would still have to have the 1 per 10 density but the minimum lot size would then be 15,000 square feet and the same development standards for the RSF, which is 15,000 square feet would apply. Mayor Chmiel: That almost all sounds like double talk. Councilwoman Dimler: It does to me too. Mayor Chmiel: Go ahead. I'm sorry. Kate Aanenson: I was going to say that really we fell that it makes sense as far as urban sprawl. If the people do want to be out in the rural area and then later at a future date they want to split those lots off again, it makes sense for land use planning to have those in the fashion that they can be easily subdivided again. Mayor Chmiel: Okay. This is in accordance with the Metropolitan Council. The City adopted, December 5, 1991 right? Okay. Councilwoman Dimler: Is this favoring clustering then to make future development easier for connection to utilities? Kate Aanenson: Right . Paul Krauss: Well frankly also. . .it also allows somebody in the non-MUSA area to continue farming but still get a little bit of value having a few homesites on the corner . . . Mayor Chmiel: Any questions? Councilwoman Dimler: And it does prevent Timberwoods from occurring again? Kate Aanenson: They could go in that way. Paul Krauss: It doesn't prevent it from happening. It gives another option to that rural property owner so hopefully he won't do that . You can still come in with whatever sized lots you want. Mayor Chmiel: Okay, can I have a motion regarding staff recommendation? Councilman Workman: So moved. Councilman Mason: Second. Resolution 992-64: Councilman Workman moved, Councilman Mason seconded to approve the amendment to the Comprehensive Plan and Zoning Ordinance to eliminate the minimum lot size in the rural area as noted in the staff report dated March 20, 1992. A11 voted in favor and the motion carried. 31 VJ CITY TF CHANHASSEN 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937-1900 • FAX (612) 937-5739 AWN by Cfty Mministiater MEMORANDUM bido(rse& V MO�Itict+ TO: Planning Commission eejeotel Dat" f2---`,2— FROM: Kate Aanenson, Planner II Date sutimited to Commission `i-i5 -9i SUBJ: Minimum Lot Size in the Rural Service Area Date Sut-r to Council LUP 92-1, ZOA 92-1 S-1 k-7 Z_ DATE: March 20, 1992 BACKGROUND This item was discussed before the Planning Commission on March 4, 1992. During the meeting, there appeared to be two major areas of concern. The Commission and staff concurred that this item should be tabled. The first issue was the Planning Commission felt that there should be a minimum lot size of 15,000 square feet in the rural area. The amendment as proposed stated that there was no minimum lot size. The only stipulation was that the lot had to be large enough to handle the required two drainfield sites. This would be consistent with the city's minimum lot size. The other major issue was the impact of reducing the minimum lot on the existing rural lot subdivisions. Staff is recommending that the land use and code amendments apply to those lots created after the adoption the ordinance. The standards of those rural lots currently in-place would remain the same. ANALYSIS The Comprehensive Plan and the Zoning Ordinance need to be amended to reflect these changes. Staff would recommend the following changes to the Land Use Element of the Comprehensive Plan, Residential- Large Lot (R-LL) section, which states: "Large-Lot residential developments are subject to m lot n e "".5 an overall density limitation of one unit per ten acres... The only means by which new lots can be created is from clustering 2.5 acre lots at a gross density of 1 home per 10 acres." to PRINTED ON RECYCLED PAPER Planning Commission March 20, 1992 Page 2 The 2000 Land Use Map shall be amended to reflect this same change. The Zoning Ordinance should be amended in the following areas: 1. Article X. "A-2" Agricultural Estate District. Section 20- 575, Lot Requirements and Setbacks The following minimum requirements shall be observed in an "A-2" District subject to additional requirements, exceptions and modifications set forth in this chapter: (1) The minimum lot area is two and one-half acres, subject to Section 20-906. (2) The minimum lot frontage is two hundred (200) feet, except that fronting on a cul-de-sac shall be two hundred (200) feet at width at the building setback line. (3) The minimum lot depth is two (200) feet, except that lots fronting on a cul-de- sac shall be two hundred feet at the building setback line. (4) The maximum lot coverage is twenty (20) percent. (5) The setbacks are as follows: a. For front yards, fifty (50) feet. b. For rear yards, fifty (50) feet. c. For side yards, ten (10) feet. (6) The maximum height is as follows : a. For the principal structure, three (3) stories/forty (40) feet. b. For accessory structures, three (3) stories/forty (40) feet. (7) The minimum driveway separation is as follows: a. If the driveway is on a collector street: four hundred (400) feet. b. If the driveway is on an arterial street: one thousand two hundred fifty (1,250). . 4,4*4"; PY/ ttry, Poi 2)4 d "-ye, se. ar tom . :� � >i i"r i r • .T: - 7 • .1 OF •• is Planning Commission March 20, 1992 Page 3 v./4,,_4:e. e> /,,,f ..•RP tr ;ft. live . I*/411 dir#S4,40, Vfelf" 2. Article XI "RR" Rural Residential District Sec. 20-595 Lot Requirements and Setbacks The following minimum requirements shall be observed in an "RR" District subject to additional requirements set forth in this chapter. (1) The minimum lot area is two and one-half acres, subject to Section 20-906. (2) The minimum lot frontage is two hundred (200) feet, except that fronting on a cul-de-sac shall be two hundred (200) feet at width at the building setback line. (3) The minimum lot depth is two (200) feet, except that lots fronting on a cul-de- sac shall be two hundred feet at the building setback line. (4) The maximum lot coverage is twenty (20) percent. (5) The setbacks are as follows: a. For front yards, fifty (50) feet. b. For rear yards, fifty (50) feet. c. For side yards, ten (10) feet. (6) The maximum height is as follows : a. For the principal structure, three (3) stories/forty (40) feet. b. For accessory structures, three (3) stories/forty (40) feet. (7) The minimum driveway separation is as follows: a. If the driveway is on a collector street: four hundred (400) feet. b. If the driveway is on an arterial street: one thousand two hundred fifty (1,250). 'k)(• /weid Alt,* 1#4. 1.4diproe.: iy.„",v,,filx4w"Ago • • • dA0,1411 ; At*. 11 . r • rte►�i►' • r • • •• - "Alf* • 1 •T 0. is .' - •.;• I 1��'`: O r- . . , , a d • ' . ° • Planning Commission March 20, 1992 Page 4 • &es, ‘0##./ / • ,,,f,;:for,o4,,,#.; tv `74V/i,frie* • •, dr„,r , 4r,"%ersr. re- ir„ „ 3. Article XXIII. General Supplemental Regulations Sec. 20-906, Rural lot buildings eligibilities (b)(8)Each site must have at least one acre (1) of an area which can support two (2) septic system sites a slope of less than twenty-five (25) percent. PLANNING COMMISSION UPDATE At the April 15, 1992 meeting, the Planning Commission all voted in favor of recommending approval of the Comprehensive Plan and Zoning Ordinance Amendment. The proposed changes would not apply to lots of record but to newly created rural lot subdivisions. RECOMMENDATION Staff would recommend that the Planning Commission amend the Comprehensive Plan and the Zoning Ordinance to eliminate the minimum lot size in the rural area as noted in the report. ATTACHMENTS 1. Original staff report dated February 27, 1992. Planning Commission Meeting April 15 , 1992 - Page 15 assume from all the comments it 's going to be approved and they 'll be coming in with a very detailed plan later on and there will be a public hearing on that detailed plan. Is that right Paul? Krauss : Yes , exactly . Emmings: And local landowners will be notified again so you 'll get to see it in a lot more detail at that time and have another change to make comments and so forth . Conrad: I 'll make a motion that staff prepare a PUD submittal responding to the issues raised in this report . Staff recommends that the PUD concept plan for the conference/spa center be approved subject to the following conditions and that 's where we prepare a formal PUD submittal in response to the issues raised in the report . While working with staff on the final development and point number 2 in the staff report , respond to issues raised in the conceptual review which are not too many . Emmings: I ' ll second it . Are there any discussions? Conrad moved, Emmings seconded that the Planning Commission recommend that the PUD Concept Plan for the Spa/Conference Center be approved subject to the following conditions: 1 . Prepare a formal PUD submittal responding to issues raised in this report , while working with staff on the plan development . 2 . Respond to issues raised by the conceptual review . All voted in favor and the motion carried. -* COMPREHENSIVE PLAN AMENDMENT AND ZONING ORDINANCE AMENDMENT REGARDING MINIMUM LOT SIZE IN THE RURAL SERVICE AREA . Paul Krauss presented the staff report on this item . Krauss : Oh by the way , I should add that you might actually see one of these developments occur . I was talking to Don Halla and Don has approval for 35 lots I believe it is under that old 2 1/2 acre zoning . He 's been asking me if he would qualify to basically replat his project under this new guideline . I spoke to the City Attorney and we both agreed that sure , it seems to be in everybody's best interest to do that . We would still restrict him to that 35 lots that he was allocated under that pre '87 subdivision that he had because he 's got a density problem . Emmings : But if he replats , wouldn 't he have to , why wouldn 't he have to be 1 in 10? Krauss : Well , that 's where he becomes grandfathered in . He 's entitled to right now , until 1994 , to plat out his 35 , 2 1/2 acre lots . Since that is construed to be in nobody's interest , why not let him get this 35 lots in a smaller corner of his property . Now that 's under his grandfathering . Planning Commission Meeting April 15 , 1992 - Page 16 Emmings: Yeah . So you leave him the same number of lots but you let him develop it under these new ordinances . Okay . Erhart: How many acres does he have total? Krauss: I honestly don 't remember . I mean it 's something like 70 or BO acres . Emmings : Well yeah , if it was 35 lots , they were all about 2 1/2 each weren 't they? Erhart: Oh yeah , and that was the worst scenario. I was wondering if there was some way to negotiate that down a little . Middle kind of thing . Krauss: Well I 'm sure , well I don't know . With Don I don't know if I 'd use that word . We indicated some receptivity with working with him on it . Erhart: I was just trying to think your elimination of 7 . What happens if somebody decides he wants to come in and do a development for 5? How with the 1 in 10 , he may not be so rushed to take out 7 . Say he wanted to do 5 acre lots . Would those restrictions still have some relevance? Krauss: It 's really something we deal with in the subdivision process . Neither we nor the State or the County would allow somebody to have 6 entrance permits within 100 feet of each other . You know we would make the person put in a cul-de-sac or a street or whatever else . Erhart : You 're comfortable with that? Krauss: Yeah . Emmings: That same provision appears on page 2 under number 1 for the A-2 . Krauss : Yes , but that 's the existing 5 acre ones or 2 1/2 acre ones . Emmings: But that you want . Okay . Erhart: Misspelled word on page 4 . Under Article 23 it left out the '1 ' in leased . Conrad: Are we comfortable that the language is clear on page 2 at the bottom? The last . . .the following setbacks shall apply and the first one which is talking about the minimum lot size is 15 ,000 . Krauss : It should probably read the following standards shall apply . Conrad: Yeah . Standards in one but my main point is , when you say or sufficient . Can that mean less than 15 ,000? Or do we say the larger of either 15 ,000 or sufficient to accommodate two septics? Krauss : Well , that doesn 't get at your question either the way you just worded it . Conrad: The larger of either? Planning Commission Meeting April 15 , 1992 - Page 17 Emmings: Just say comma , whichever is larger . Minimum is whichever of those two are larger . Erhart: I think Ladd 's got a good point . Emmings: Yeah . I think just change the period to a comma and say whichever is larger , you 've got it . Erhart: Also , put square feet in after 15,000 . Emmings: And site should be sites . There should be an s after it . You 're talking about two . And all those same comments would apply to what 's at the bottom of page 3 . Change setbacks to standards . Krauss: Right . Emmings: 15 ,000 square feet , sites and whichever is larger . Erhart : In fact the whole line 1 would probably read better if you just said two potential septic system sites . I think that 's what we 're really trying to say . Farmakes: Where is that? Erhart: The first line in all those standards . Just say two potential septic system sites . Krauss: Well one 's not potential . Erhart : Yeah once you build the house then it 's not potential anymore . Emmings: Anybody else? This is a free for all . Since there 's nobody else here so does anybody else got any comments? Anybody want to make a motion? Matt like to make a motion? Ladd says Matt wants to make a motion . Ledvina : I recommend that the Planning Commission amend the Comprehensive Plan and the Zoning Ordinance to eliminate the minimum lot size in the rural area as noted in the report subject to our discussion here . Is that good enough? Emmings: I 'll second that . Any discussion? Ledvina moved, Emmings seconded that the Planning Commission recommend approval of the amendment to the Comprehensive Plan and Zoning Ordinance to eliminate the minimum lot size in the rural area as noted in the staff report . All voted in favor and the motion carried. Erhart: Is that clear that that includes the discussion over on the second section? Krauss : Yes . Erhart : SO we don 't have to vote on two things? CITYOF CHAIIIIASSEN — i 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937-1900 • FAX (612) 937-5739 MEMORANDUM TO: Planning Commission FROM: Kate Aanenson, Senior Planner DATE: July 29, 1993 SUBJ: Zoning Ordinance Amendment to Clarify the Landscaping Regulations for Site Plan Reviews Attached is the proposed amendment with the changes recommended by the Planning Commission at their meeting of July 7, 1993. Major issues were specific tree species for parking lots, valuation formula for existing trees and sprinkling. Changes have been made in bold. ATTACHMENTS 1. Ordinance amendment. 2. Landscape tree valuation. 3. Planning Commission minutes dated July 7, 1993. n to, PRINTED ON RECYCLED PAPER CHANHASSEN CITY CODE — DIVISION 2. TREE PRESERVATION The section below will be amended with the adoption of the Tree Preservation Ordinance proposed for subdivision. Sec. 20-1178. Generally. DIVISION 3. LANDSCAPING STANDARDS — Sec. 20-1179. Landscape budget. (a) Landscaping shall be provided that meets the minimum landscaping budget provided _ in the table below. Project value* Minimum Landscape Value** (Inc-hidings building construction, site (Is the minimum landscape value and shall _ preparation, and the site improvements) include only expenditures on trees and plant material excluding sod or seed, excluding labor and grading.) _ Below $1,000,000 2% $1,000,001- 2,000,000 20,000 + 1% of project value in excess of $1,000,000 2,000,001- 3,000,000 $30,000 + 0.75% of project value in excess of $2,000,000 3,000,001- 4,000,000 $37,500 + 0.25% of project value in excess of $3,000,000 Over $4,000,000 1% (b) At the City's discretion. The value of tree preservation may be utilized to offset landscaping requirements, if there is a finding of significant trees that are worthy of _ preservation. The following formula shall be used for calculating the value of tree preservation: 1 Cross-sectional Dollars Per Species Condition Location Dollar Tree Area x Square Inch x Factor x Factor x Factor = Value (see definitions section) Sec. 20-1180. Screening for visual impacts. (a) Visual impacts must be screened er-buffed- as required by the city. These shall include, but not be limited to, truck loading areas, trash storage, parking lots, interior lot areas and perimeters, outdoor storage areas, large unadorned building massing, garage doors associated with auto-oriented uses and vehicular stacking areas for drive-through uses. (1) Required screening or buffering for any visual impact may be achieved with fences, walls, earth berms, hedges or other landscape materials. All walls and fences shall be architecturally harmonious with the principal building. The use of wooden screen fences or chain link fences equipped with slats is prohibited. Earth berms shall not exceed a slope of 3:1 unless provided with landscaping designed to minimize maintenance. The screen shall be designed to employ materials which provide effective visual barrier during all seasons. (2) All required screening or buffering shall be located on the lot occupied by the use, building, facility or structure to be screened. No landscape screening shall be located on any public right-of-way or within eight (8) feet of the traveled portion of any street or highway. (3) Screening er-beffeFing required by this section shall be of a height needed to accomplish the goals of this section. Height of plantings required under this section shall be measured at the time of installation. (b) The following uses shall be screened or buffered in accordance with the requirements of this subdivision: (1) Principal buildings and structures and any building or structure accessory — thereto located in any business, industrial or planned unit development district containing nonresidential uses shall be buffered screened from lots used for any residential purpose. (2) Principal buildings and structures and any building or structure accessory thereto located in any R4, R8, R12, R16 district or planned unit development district containing residential development at densities exceeding four (4) units per acre shall be buffered from lots located in any Al, A2, RR or RSF district. (3) Additional buffer yard requirements are established by the city comprehensive plan and listed in individual district standards. 2 (4) Outside storage in any district subject to these provisions and allowed by other provisions of this ordinance, shall be screened from all public views. Sec. 20-1181. Vehicular areas. (a) Parking lot perimeters where vehicular areas, including driveways and drive aisles, are not entirely screened visually by an intervening building or structure from any abutting right-of-way, there shall be provided landscaping designed to buffer direct views of cars and hard surface areas. The goal of this section is to break up expanses of hard surface areas, help to visually define boulevards and soften direct views of parking areas and provide for reforestation with overstory tree from the approved tree species list identified parking. Note: The Planning Commission directed staff to review the use of required irrigation on commercial and industrial sites, most cities do not require sprinkling for landscaping. Most larger developments install sprinkling systems, so this is true of commercial and industrial developments. The other request of parking lot trees is identified on the species list at the end of this document. The species list has been modified to reflect interior/parking lot landscaping and exterior/perimeter landscaping. (b) Interior landscaping for vehicular use areas: (1) Any open vehicular use areas - - . • -•. • •, . • .•. -_ •. . - . - TOP and BG districts) containing more than six thousand (6,000) square feet of area, or twenty (20) or more vehicular parking spaces, shall provide interior landscaping in - accordance with this division in addition to "perimeter" landscaping. Interior landscaping may be peninsular or island types. (2) For each one hundred (100) square feet, or fraction thereof, of vehicular use area, five (5) eight (8) square feet of landscaped area shall be provided. (3) The minimum landscape area permitted shall be sixty four (64) two hundred (200) square feet, with a four- ten foot minimum dimension to all trees from edge of pavement where vehicles overhang. (4) In order to encourage the required landscape areas to be properly dispersed, no re- quired landscape area shall be larger than three hundred fifty (350) square feet in vehicular use areas under thirty thousand (30,000) square feet, unless there is a preservation area. In both cases, the least dimension of any required area shall be four-foot minimum dimension to all trees from edge of pavement where vehicles overhang. Landscape areas larger than above are permitted as long as the additional areas are in excess of the required minimum. (5) A minimum of one (1) tree shall be required for each two hundred fifty (250) square feet or fraction thereof, of required landscape area. Trees shall have a clear trunk of at least five (5) feet above the ground, and the remaining area shall be landscaped with shrubs, 3 or ground cover (not to include rocks or gravel), not to exceed two (2) feet in height. (6) Parked vehicles may hang over the interior landscape area no more than two and one-half (21) feet, as long as a concrete curb is provided to ensure no greater overhang or penetration of the landscape area. (7) All landscaped areas shall be protected by concrete curbing. (8) All landscaping area shall have the proper soil preparation to ensure the viability of the vegetation to survive. Sec. 20-1182. Foundation and aesthetic plantings. (a) Landscaping plans shall provide for an appropriate mix of plantings around the exterior footprint of all buildings. The intent of this section is to improve the appearance of the structures and, where necessary, break up large unadorned building elevations. These plantings are not intended to obscure views of the building or accessory signage. (b) All undeveloped areas of the site, excluding protected wetlands and tree preservation areas, shall be seeded or sodded. In addition, an appropriate mix of trees and other plant material shall be provided to create an aesthetically pleasing site. (c) Boulevard and streetscape plantings, Where undeveloped or open areas of a site are located adjacent to public right-of-way, the plan shall provide for over-story boulevard trees. A minimum of one (1) tree for every thirty (30) feet of frontage is required. The city may approve alternatives if it meets the intent of the ordinance from approved tree species list. Sec. 20-1183. Landscaping materials. (a) The landscaping materials shall consist of the following: (1) Walls and fences. Walls shall be constructed of natural stone, brick or other appropriate materials. Fences shall be constructed of wood. Chain link fencing will be permitted only if covered with plant material or otherwise screened. 2) Earth berms. Earth berms shall be physical barriers which block or screen the view similar to a hedge, fence, or wall. Mounds shall be constructed with proper and adequate plant material to prevent erosion. A difference in elevation between areas requiring screening does not constitute an existing earth mound, and shall not be considered as fulfilling any screening requirement. (3) Plants. All plant materials shall be living plants; artificial plants are prohibited. Plant materials shall meet the following requirements: 4 a. Deciduous trees. Shall be species having an average crown spread of greater than fifteen (15) feet and having trunk(s) which can be maintained with over five (5) feet of clear wood in areas which have visibility requirements, except at vehicular use area intersections where an eight-foot clear wood requirement will control. Trees having an average mature spread of crown less than fifteen (15) feet may be substituted by grouping of the same so as to create the equivalent of a fifteen foot crown spread. A minimum of ten (10) feet overall height or minimum caliper (trunk diameter, measured six (6) inches above ground for trees up to four (4) inches caliper) of at least two and one-half (22) inches immediately after planting shall be required. Trees of species whose roots are known to cause damage to public roadways or other public works shall not be placed closer than fifteen (15) feet to such public works, unless the tree root system is completely contained within a barrier for which the minimum interior containing dimensions shall be five (5) feet square and five (5) feet deep and for which the construction requirements shall be four (4) inches thick, reinforced concrete. Trees shall be selected from the approved list of tree species. b. Evergreen trees. Evergreen trees shall be a minimum of six (6) feet high with a minimum caliper of one and one-half (11/2) inches when planted. c. Shrubs and hedges. Deciduous shrubs shall be at least two (2) feet in average height when planted, and shall conform to the opacity and other requirements within four (4) years after planting Evergreen shrubs shall be at least two (2) feet in average height and two (2) feet in diameter. d. Vines. Vines shall be at least twelve (12) inches high at planting, and are generally used in conjunction with walls or fences. • e. Grass or ground cover. Grass shall be planted in species normally grown as permanent lawns, and may be sodded, plugged, sprigged, or seeded; except in swales or other areas subject to erosion, where solid sod, erosion reducing net, or suitable mulch shall be used, nurse-grass seed shall be sown for immediate protection until complete coverage otherwise is achieved. Grass sod shall be clean and free of weeds and noxious pests or diseases. Ground cover such as organic material shall be planted in such a manner as to present a finished appearance and seventy-five (75) percent of complete coverage after two (2) complete growing seasons, with a maximum of fifteen (15) inches on center. In certain cases, ground cover also may consist of rocks, pebbles, sand and similar approved materials. f. Retaining. Retaining walls exceeding five (5) feet in height, including stage walls which cumulatively exceed five (5) in height, must be constructed in accordance with plans prepared by a registered engineer or landscape architect of brick, concrete or natural stone. Artificial material may be approved if appropriate. 5 DIVISION 4. MAINTENANCE AND INSTALLATION Sec. 20-1184. Generally. The owner, assigns, tenant, and their respective agents shall be held jointly and severally responsible to continually maintain their property and landscaping as approved with the official site plan in a condition presenting a healthy, neat and orderly appearance and free from refuse and debris. Plants and ground cover which are required by an approved site or landscape plan and which have died shall be replaced within three (3) months of notifications by the city. However, the time for compliance may be extended up to nine (9) months by the director of planning in order to allow for seasonal or weather conditions. Sec. 20-1186--20-1260. Reserved. DEFINITIONS: _ Screening - Visually shielding or obscuring structures or uses through the use of densely planted vegetation. Vegetation shall include a mix of deciduous and coniferous to provide year round screening. Cross-Sectional Area - is a measure of tree size. It is calculated from the trunk diameter using the formula 0.785d2 where d2 is the trunk diameter of the tree measured in inches squared. Diameter measurements should be taken at a point on the trunk 41/2 feet above the level. Dollars per square Inch - is the value determined by the Council of Trees and Landscape appraisers. The current value is $27.00 per square inch. Species Factor - is the measure of the relative value of each shade or ornamental tree species. See attached list with values ( Attachment A). Condition Factor - is the measure of an individual tree and its relative physical condition compared to a tree of the same species which has perfect health and form (Attachment B). Location Factor - is the function value of a tree based on its location in the landscape. The location factor may vary from 0 to 100 percent with 100 percent representing a perfect location. Its greater value is due to its aesthetic and functional impact on the property. Positive functions such as providing shade, controlling snow drifting, or providing wildlife habitat enhances a tree's location value. Negative functions such as interference with public safety, utilities, sidewalks, building or other properties can lessen the value. 6 List of Desirable Tree Species for Planting in Chanhassen means the following list tree species. List of Desirable Tree Species for Planting in Chanhassen Key to notations used: ST = Relatively tolerant to deicing salt DT = Relatively tolerant to drought or dry sites Size: (in terms of expected mature height) L = Large (over 50 feet) M = Medium (between 25 to 50 feet) S = Small (less than 25 feet) Blvd = Suitable for boulevard planting and parking lot Pkg = Suitable for parking lots Suitable Tree Species Broadleaf Species Size Tolerance Location Notes Ash, Marshall PKG Seedless Froxinus pennsylvania Ash, Mountain M BLVD Protect from sunscald Sorbus spp. Birch, River M Relatively tolerant of wet Betula nigra sites Coffeetree, L DT BLVD Kentucky Gymnocladus dioicus Corktree, Amur S DT Phellodendron amurense Crabapple, S BLVD Many varieties available; Flowering check for disease Malus spp. resistance; protect from sunscald 7 Ginkgo M BLVD Male trees only Ginkgo biloba Hackberry L DT ST PKG Celtis occidentalis Hawthorn S DT ST PKG Thornless varieties Crataegus spp. available Hickory, Shagbark L DT Carya ovata Honeylocust M-L ST BLVD/PKG Protect from sunscald. Gleditsia Thornless varieties Hatriacanthos popular Ironwood M Grows well under shade Ostrya virginiana of other trees Lilac, Japanese S ST BLVD Tree Syringa amurensis japonica Linden, American L BLVD/PKG A.K.A Basswood; Tilia americana Relatively tolerant of wet sites Linden, Littleleaf M BLVD Tilia chordata Locust, Black L DT Robinia psuedoacacia Maple, Amur S Shade tolerant. Acer ginnala Maple, Norway M-L ST BLVD/PKG Protect from sunscald. Acer platanoides Maple, Red M BLVD Protect from sunscald. Acer rubrum Grows best on moists, acid soils. Maple, Sugar L BLVD Protect from sunscald. Acer saccharum Prefers heavy, moist soils. Shade tolerant. 8 Northern Catalpa M-L DT Catalpa speciosa Oak, White L Quercus alba Oak, Bur L DT ST BLVD/PKG Quercus macrocarpa Oak, Red L ST BLVD/PKG Quercus rubra Oak, Swamp L Relatively tolerant of wet White sites Quercus bicolor Ohio Buckeye NI BLVD Aesculus glabra Walnut, Black L Juglans nigra CONIFERS Arborvitae, S American Thuja occidentalis Fir, Balsam M Relatively tolerant of wet Abies balsamea sites. Shade tolerant. Fir, White M DT Abies con color Pine, Austrian L Pinus nigra Pine, Red L DT State tree Pinus resinosa Spruce, Black M Hills Picea glauca densata 9 Spruce, Colorado M Picea pungens Spruce, Norway L Picea abies Spruce, White L Picea glauca Tamarack M Tolerant of wet sites. Larix laricina Only conifer that drops its needles each year in fall. 10 4-+40 ffi1en4 — i 1 Table 2. Species Factor for Minnesota Shade and Ornamental Trees Common Name Botanical Name Species Common Name Botanical Name Species _ Factor Factor (% Value) (% Value) - Evergreen Arborvitae (white ceder) Thuja occidentalis 80 Cucumbertree Magnolia acuminate 80 Douglas fir Pseudotsuga menziesii glauca 80 Dogwood, pagoda Cornus alternifolia 70 Fir, balsam Abies balsamea 70 Elm, American Ulmus americana 50 Fir, white Abies concolor 90 Elm, Siberian Ulmus pumila 20 Hemlock, Canada(eastern) Tsuga canadensis 70 Elm, slippery (red) Ulmus rubra 50 Juniper (other than Juniperus sp. 60 Elm. rock Ulmus thomasii 50 virginiana) Ginkgo (male trees) Ginkgo biloba 90 Larch Larix sp. 90 Hackberry Ceftis occidentalis 80 _ Pine, Austrian Pinus nigra 80 Hawthorn Craleegus sp. 80 Pine, eastern white Pinus strobus 90 Hickory, bitternut Carya cordiformis 70 Pine, jack Pinus banksiana 50 Hickory, shagbark Carya ovata 70 Pine, mugo Pinus montana 60 Honeylocust, common Gleditsia triacanthos 60 Pine, ponderosa Pinus ponderosa 70 Honeylocust (thornless Gleditsia triacanthosinermis 70 Pine, red (Norway) Pinus resinosa 60 and male cuttivars) Pine, Scots Pinus sylvestris 60 Hoptree, common Ptelea trifoliata 60 Red cedar, eastern Juniperus virginiana 50 Ironwood Ostrya virginiana 80 Spruce, black Picea mariana 50 Lilac, Japanese tree Syringa reticulate 100 Spruce, Blackhills Picea glauca densate 70 Linden, American Tilia americana 70 Spruce, Colorado Picea pungens 80 (basswood) Spruce, Norway Picea abies 70 Linden, littleleaf Tilia cordata 90 Spruce, white Picaa glauca 70 Linden (cultivars) Tilia sp. (cuttivars) 90 Yew Taxus sp. 80 Locust, black Robinia pseudoacacia 30 London planetree Platanus x acerifolia 60 Deciduous Maple, amur Acer ginnala 80 Maple, Norway and Acer platanoides 80 Ash, black Fraxinus nigra 60 cultivars Ash, blue Fraxinus quadrangulata 40 Maple, red and cultivars Acer rubrum 90 Ash, green Fraxinus pennsylvanica 50 Maple, silver Acer saccharinum 50 Ogtigk Ash (male cultivars) Fraxinus sp. 60 Maple, sugar Acer saccharum 100 Ash, white Fraxinus americana 60 Maple, tatarian Acer tatarica 80 Aspen, bigtooth Populus grandidentata 40 - Mountain ash Sorbus sp. 80 Aspen, quaking Populus tremuloides 20 Mulberry Morus sp. 60 Blue beech Carpinus caroliniana 100 Nannyberry Viburnum lentago 80 Birch, European Betula penduta 60 Oak, black Quercus velutina 80 Birch, gray Betula populifolia 50 Oak, bur Quercus macrocarpa 100 Birch, paper (white) Betula papyri}era 70 Oak, northern pin Quercus ellipsoidalis 70 Birch, river Betula nigra 80 Oak, northern red Quercus rubra 100 Birch, yellow Betula alleghaniensis 70 Oak, eastern pin Quercus palustris 40 Boxelder Acer negundo 20 Oak, bicolor Quercus bicolor 90 Buckeye, Ohio Aesculus glabra 70 Oak, white Quercus alba 100 Buckthorn, glossy Rhamnus frangula 20 Plum, American Prunus americana (cultivars) 60 Butternut Juglans cinerea 60 Plum, Canada Prunus nigra (cuttivars) 100 Catalpa Catalpa sp. 50 Poplar, balsam Populus balsamifera 30 Cherry, black Prunus serotina 30 Poplar, Bolleana Populus alba 'Bolleana' 30 Cherry, amur choke Prunus maacki 50 Poplar, Lombardy Populus nigra 'Italica' 20 Cherry, choke Prunus virginiana 40 Poplar, white Populus alba 20 Cherry, choke (cultivars) Prunus virginiana (cultivars) 50 Redbud, eastern Carols canadensis 80 Cherry, pin Prunus pensylvanica 40 Russian olive Elaeagnut angustifolia 40 Chestnut, American Castanea dentate 50 Service berry Amelanchier sp. 100 Coffeetree, Kentucky Gymnocladus dioica 80 Sumac Rhus typhina 60 Corktree, amur Phellodendron amurense 80 Walnut, black Juglans nigra 60 Cottonwood. eastern Populus deltoides 40 Willow Salix sp. 30 Crabapple (ornamental) Malus sp. 80 .wS• er ►.tee• - . -Str.14 -tea-= ttce' '�;ii; 40111 -- .:24:S.• 4 A-Hach me(Ai Table 3. Descriptions of tree condition classes Condition Condition Description Class (percent) 100 Excellent -Perfect specimen. Excellent form and vigor. No pest problems or inju- ries. No corrective work required. Life expectancy of 30 years or more. 80 Good Better than average specimen. Good form and vigor.No significant pest problems or injuries. No corrective work required. Life ex- pectancy of 20 years or more. 40-60 Fair Fair specimen in form and vigor. May need corrective pruning or re- pair. May have some in- sect, disease, or physiological damage. Life expectancy of 10 years or more. 20 Poor General state of decline. May have severe me- chanical, insect, or dis- ease injury, but death not imminent. May require major repair or renova- - tion. Life expectancy of 5 years or more. 0 Dying Death likely within 5 years. NR-FO-0726-C MINNESOTA EXTENSION SERVICE Revised 1990 Um%ERSITI OF M \ESOTA NATURAL RESOURCES Landscape Tree Valuation • x - .1ei 1 REPLACEMENT COST •.S - f The value of a tree or shrub may be estimated from .1"— ' L i the cost required to replace it with another tree or shrub . .2%. of the same species, size, and condition in the same lo- i 1 'L' t[1,[11' u = s cation. Replacement costs should include: Fr l` ,=3�� ���L. Tom'•:, 6� - • removal of the damaged or dead tree; INTRODUCTION purchase of the new tree; . planting and staking, guying, wrapping or Trees and shrubs do more than beautify the land- mulching of the new tree; and scape; they enhance property values. Research studies • maintenance until the new tree becomes in the United States have compared property values of established or reaches the size of the homes with and without trees. These studies indicate original tree. that healthy, well-placed trees increase residential property values by 9 to 27 percent. Buyers pay more for well-landscaped property because they recognize that The cost for a new tree can be obtained from a trees and shrubs have both aesthetic and functional value. tree nursery. The costs for removal of tree debris, The functional value of trees and shrubs includes cooling planting, staking, guying, wrapping, mulching, and main- the air, reducing wind velocity, filtering dust and certain tenance can be obtained from an arborist or tree nursery pollutants from the air,providing wildlife habitat,and con- that regularly performs these services. This method of trolling soil erosion. evaluation is most appropriate for shrubs and for trees up to 4 inches in stem diameter. Trees up to this size When trees or shrubs are damaged or destroyed, generally are available in the nursery trade. This method property owners may need to determine their monetary may be used for larger trees, up to 12 inches in diameter, value in order to reclaim the financial loss through in- if they are available from nurseries in your area. surance, a tax deduction (casualty loss), court settlement, or other means. Urban foresters and city tree boards may need to appraise the value of street and park trees for budgeting purposes. This publication describes four COMPOUNDED REPLACEMENT COST methods for estimating the monetary value of those trees and shrubs which are an integral part of the landscape It is not always possible to replace a tree or shrub around homes and businesses: with another of the same size and quality. If you replace the damaged tree or shrub with a smaller plant, the re- (1) Replacement cost placement may take many years to grow to a size equal (2) Compounded replacement cost to the original. Under these circumstances it may be appropriate to appraise the value of the damaged tree (3) Decrease in fair market value of the real or shrub by the compounded replacement cost method. estate You must determine three things before using this (4) Council of Tree and Landscape Appraisers method: (1) the replacement cost for the largest tree formula available from nurseries in your area as described above, (2) the estimated number of years the new tree would These methods are not appropriate for appraising need to grow to reach the same size as the damaged the value of trees and shrubs in woodlots where trees tree, and (3) the interest rate you would expect to earn derive their primary value from the wood products that from investing your replacement cost over the estimated can be produced from them. growing years of the new tree. When you know the replacement cost (present DECREASE IN FAIR MARKET VALUE value) the expected interest rate, and the estimated grow OF THE REAL ESTATE ing years (number of periods to be compounded), go to the formula shown below to calculate the compounded Because trees often increase real estate values, it replacement cost or "future value." may be appropriate to have a real estate appraiser es- The formula for compounding a future value is as timate the fair market value of the whole property before follows: and after the tree damage. The change in fair market value represents the value of property damaged. PV(1 + i)° = FV If the property includes buildings or improvements Where: other than trees, have the damage to these improvements PV = present value appraised. Subtract that amount from the change in fair i = interest rate expressed as a decimal market value of the whole property. The residual value represents the value of trees on the property. This method n = number of periods to be compounded FV = future value might be appropriate for valuing a single specimen tree As an example of the compounded replacement that significantly affects property value or for valuing a cost method, assume the following: heavily wooded lot on which many trees have been dam- - aged or destroyed. • An eight inch diameter tree was destroyed. For an example of this appraisal method, assume that a house was located on a heavily wooded lot. A • The largest tree of that species and condi- tornado damaged or destroyed nearly all of the trees on tion available from a nursery is four the lot and damaged the house. A real estate appraiser inches in diameter. estimated that the fair market value of the whole property The replacement cost for the four-inch (trees, land, and house) before the tornado damage was diameter tree is $500. $180,000 and after the tornado damage was $130,000. ▪ An arborist estimated the four-inch diame- The reduction in fair market value of the whole property _ ter tree would need to grow for 16 years to was $50,000. An insurance adjustor then estimated that reach an eight-inch diameter. repairs to the house would cost $35,000. The remaining ▪ Over a 16 year period the tree's owner $15,000 decrease in fair market value of the whole prop- - could invest $500 in a bond that returns 7 erty can be attributed to tree damage. Before being dam- percent interest annually aged, the trees contributed $15,000 to the value of the whole property'. To calculate the compounded replacement cost of this tree, compound the $500 replacement cost for 16 COUNCIL OF TREE AND LANDSCAPE years at 7 percent interest: APPRAISERS FORMULA $500(1 + 0.07)16= $1,476 The compounded replacement cost for this tree The Council of Tree and Landscape Appraisers' is $1,476. (CTLA) in cooperation with its member organizations developed a formula for appraising the value of trees If you expect to incur annual or periodic mainte- nance expenses to grow your replacement tree to the size and shrubs. This formula standardizes procedures for of the original, estimate those additional expenses. Com- valuing trees, but is flexible. CTLA recommends using this formula for appraising trees larger than eight inches pound those costs forward from the year in which they occur to the last year of the growth period you are in trunk diameter and for calculating a replacement cost for smaller diameter trees. The CTLA formula may be projecting. used for trees smaller than eight inches in diameter if replacement trees are not available. A detailed descrip- The CTLA Formula Tree Cross-sectional $27.00 per Species Condition Location Value = Area x Square Inch x Factor x Factor x Factor 2 tion of this formula and its use has been published in Valu- ation of Landscape Trees, Shrubs, and Other Plants. Table 1. Cross-sectional Areas Additional information concerning tree and shrub ap- of Tree Trunks by Diameter praisal is available in Manual for Plant Appraisers: A Handbook of Methods, Procedures and Problems of Plant Trunk Cross-sectional i Trunk Cross-sectional Appraisal. Both publications can be purchased from the Diameter Area Diameter Area International Society of Arboriculture' (ISA). Tree (inches) (square inches) (inches) (square inches) appraisers are encouraged to acquire these books and to study them thoroughly. 4 12.6 23 415.5 5 19.6 24 452.4 Cross-sectional Area, expressed in square inches, 6 28.3 25 490.9 is a measure of tree size (see figure). It is calculated 7 38.5 26 530.9 from the trunk diameter using the formula 0.7854d2, 8 50.3 27 572.6 where d' is the trunk diameter of the tree measured in 9 63.6 28 615.8 inches, squared. Diameter measurements should be 10 78.5 29 660.5 taken at a point on the trunk 4 1/2 feet above ground 11 95.0 30 706.9 level or as near that point as possible. Abnormal trunk 12 113.1 31 754.8 conditions (e.g., trunk flare, branch, or forked trunk) may 13 132.7 32 804.2 make it necessary to alter the position of the measure- 14 153.9 33 855.3 ment. In these cases, measure diameter above or below 15 176.7 34 907.9 the deformity at a height that gives a realistic diameter. 16 201.1 35 962.1 The cross-sectional area of multi-stemmed trees is 17 227.0 36 1017.9 usually based on the diameter of the largest trunk plus 18 254.5 37 1075.2 40 to 80 percent of the cross-sectional area derived from 19 283.5 38 11341 the remaining trunks. 20 314.2 39 1194.6 21 346.4 40 1256.6 An easy way to determine a tree's diameter is to 22 380.1 measure its circumference with a tape measure and then divide its circumference by 3.14. Cross-sectional areas for trunk diameters ranging _ from 4 to 40 inches are in Table 1. The $27 Per Square Inch value was determined r _ _ by the Council of Tree and Landscape Appraisers. This �-= • -�, z'"' c� c-/-/1--c.":-:?--'-z, s uare inch value has :,, .`_ �; �,.- q gradually risen to reflect increases si,-J- -� - .,1� v' ,...:„\s_ in property value due to inflation. The $27 value was � �, `^", -!`L-,J rte., - - `, ``� effective as of June, 1990. It is an estimate of the contribu- \; `,.- z^ tion trees make to property value based on their size alone. Species Factor, expressed as a percent, is a measure of the relative value of each shade or ornamental tree species. Criteria used in determining the species factor include tree hardiness, form, color, growth habits, flower- ): ing and fruiting characteristics, structural strength, lon- gevity, insect and disease resistance, maintenance re- quirements, and general desirability in the landscape. diameter Table 2 lists a suggested percentage value for shade • cross-sectional area and ornamental tree species commonly found in Minne in square inches soca. These values are applicable to trees growing on good ft. sites and in regions of the state where they are well- , adapted. Appraisers should reduce these percentages for trees occurring on growing sites that are poor for that species or in parts of the state where the species is not climatically suited. Likewise appraisers may need to in- crease percentages for tree species growing in parts of Figure 1. Cross-sectional area is based on trunk the state or on sites where very few species will survive diameter measured at 4 2 feet above the ground. because of the harsh climate or growing site. 3 Table 2. Species Factor for Minnesota Shade and Ornamental Trees Common Name Botanical Name Species Common Name Botanical Name Species Factor Factor — (% Value) (% Value) Evergreen — Arborvitae (white cedar) Thuja occidentalis 80 Cucumbertree Magnolia acuminate 80 Douglas fir Pseudotsuga menziesii glauca 80 Dogwood, pagoda Cornus alternifolia 70 Fir, balsam Abies balsamsa 70 Elm, American Ulmus americana 50 Fir, white Abies concolor 90 Elm, Siberian Ulmus pumila 20 Hemlock, Canada(eastern) Tsuga canadensis 70 Elm, slippery (rad) Litmus rubra 50 Juniper (other than Juniperus sp. 60 Elm, rock litmus thomasii 50 virginians) Ginkgo (male trees) Ginkgo bilobs 90 Larch Leris sp. 90 Hackberry Collis occidentalis 80 Pine, Austrian Pinus nigra 80 Hawthorn Crataegus sp. 80 Pine, eastern white Pinus atrobus 90 Hickory, bitternut Cary& cordiformis 70 Pine, jack Pinus banksiana 50 Hickory, shagbark Ca rya ovata 70 Pine, mugo Pinus montana 60 Honeylocust, common Gleditsia triacanthos 60 Pine, ponderosa Pinus ponderosa 70 Honeylocust (thornless Gleditsia triacanthosinermis 70 Pine, red (Norway) Pinus resinosa 60 and male cultivars) Pine, Scots Pinus sylvestris 60 Hoptree, common Ptalea trifoliata 60 Red cedar, eastern Juniperus virginians 50 Ironwood Ostrya virginians 80 Spruce, black Picea mariana 50 Lilac, Japanese tree Syringa reticulata 100 Spruce, Blackhiils Picea glauca densata 70 Linden, American Tilia americana 70 Spruce, Colorado Picea pungens 80 (basswood) Spruce, Norway Picea ables 70 Linden, littleleaf Tilia cordata 90 Spruce, white Picea glauca 70 Linden (cultivars) Tilia sp. (cultivars) 90 yew Taxus sp. 80 Locust, black Robinia pseudoacacia 30 London planetree Platanus x acerifolia 60 Deciduous Maple, amur Acer ginnals 80 Maple, Norway and Acer platanoides 80 Ash, black Fraxinus nigra 60 cultivars Ash, blue Fraxinus quadrangulata 40 Maple, red and cultivars Acer rubrum 90 — Ash, green Fraxinus pennsylvanica 50 Maple, silver Acer saccharinum 50 Ash (male cultivars) Fraxinus sp. 60 Maple, sugar Acer saccharum 100 Ash, white Fraxinus americana 60 Maple, tetarian Acer tatarica 80 Aspen, bigtooth Populus grandidentata 40 Mountain ash Sorbus sp. 80 Aspen, quaking Populus tremuloides 20 Mulberry Morus sp. 60 Blue beech Carpinus caroliniana 100 Nanny Wry Viburnum lentag° 80 Birch, European Betula pendula 60 Oak, black Quercus volutins 80 Birch, gray Betula populifolia 50 Oak, bur Quercus macrocarpa 100 Birch, paper (white) Betula papyrifera 70 Oak, northern pin Quercus ellipsoidalis 70 Birch, river Betula nigra 80 Oak, northern red Quercus rubra 100 Birch, ye'low Betula alleghaniensis 70 Oak, eastern pin Quercus palustris 40 Boxelder Acer negundo 20 Oak, bicolor Quercus bicolor 90 Buckeye, Ohio Aesculus glabra 70 Oak, white Quercus alba 100 _ Buckthorn, glossy Rhamnus frangula 20 Plum, American Prunus americana (cultivars) 60 Butternut Juglans cinerea 60 Plum, Canada Prunus nigra (cultivars) 100 Catalpa Catalpa sp. 50 Poplar, balsam Populus balsamifera 30 Cherry, black Prunus serotina 30 Poplar, Bolleana Populus alba 'Bolleana' 30 Cherry, amur choke Prunus maacki 50 Poplar, Lombardy Populus nigra 'Italica' 20 — Cherry, choke Prunus virginians 40 Poplar, white Populus alba 20 Cherry, choke (cultivars) Prunus virginiana (cultivars) 50 Redbud, eastern Cercis canadensis 80 Cherry, pin Prunus pensylvanica 40 Russian olive Elaeagnus angustifolia 40 Chestnut, American Castanea dentate 50 Serviceberry Amelanchier sp. 100 _ Cotleetree, Kentucky Gymnocladus dioica 80 Sumac Rhus typhina 6C Corktree, amur Phellodendron amurense 80 Walnut, black Juglans nigra 6C Cottonwood, eastern Populus deltoides 40 Willow Salix sp. 30 Crabapple (ornamental) Malus sp. 80 i •Al ' S . 'mfr s 4 Condition Factor, expressed as a percent, is a measure of an individual tree's relative physical condition Table 3. Descriptions of tree condition classes compared to a tree of the same species which has perfect health and form. The condition class may range from 0 to Condition Condition Description 100 percent with 100 percent representing a tree in per- Class fect condition. (percent) If a tree is being appraised to determine its value subsequent to serious damage, the tree should be evalu- 100 Excellent Perfect specimen. ated based on its condition immediately before any dam- Excellent form and vigor. age occurred. Deductions from 100 percent should be No pest problems or inju- made for physical defects such as poor form, wounds, ries. No corrective work decay, broken branches, insect or disease damage, or old required. Life expectancy age. Table 3 provides general guidelines for the condition of 30 years or more. factor, but remember that the condition factor can be any 80 Good Better than average percentage from 0 to 100. specimen. Good form Location Factor, expressed as a percent, reflects and vigor.No significant the functional value of a tree based on its location in the pest problems or landscape. A tree's location factor may range from 0 to injuries. No corrective 100 percent with 100 percent representing a well-placed work required. Life ex- specimen tree on high value property. For example, a pectancy of 20 years or specimen tree in a key location on a residential lot may more. have greater value than a tree of the same size, species, 40-60 Fair Fair specimen in form and and condition that is one of many trees located along a vigor. May need street or on a heavily wooded lot. Its greater value is due corrective pruning or re- to its aesthetic and functional impact on the property. pair. May have some in- Positive functions such as providing shade, controlling sect, disease, or snow drifting, or providing wildlife habitat enhance a physiological damage. tree's location value. Negative functions such as interfer- Life expectancy of 10 ence with public safety, utilities, sidewalks, buildings, or years or more. other property can lessen the location value. 20 Poor General state of decline. May have severe me- chanical, insect, or dis- APPLYING THE CTLA FORMULA ease injury, but death not imminent. May require major repair or renova- The CTLA formula is simple to use. First determine tion. Life expectancy of 5 the tree's trunk diameter in inches at a height of 4 1/2 feet years or more. above ground level,or as near that height as practical. Use Table 1 to determine the cross-sectional area of the trunk. 0 Dying Death likely within 5 years. Multiply the cross-sectional area by the dollar value per square inch (currently $27 per square inch) to determine the tree's basic dollar value. Then multiply the tree's basic dollar value by the percentages (converted to decimals) Next, assume that it is a sugar maple with a species factor , chosen for species, condition, and location factors. The of 100%. The appraiser estimates its condition factor to - resulting figure is the tree's dollar value. be 80 percent and its location factor to be 70 percent. For example,assume that a tree is 18 inches in trunk According to the CTLA formula, the value of this diameter. From Table 1, its cross-sectional area is 254.5 tree is$3,848. 1 square inches. Its basic value is $27 per square inch. Cross-sectional Dollars Per Species Condition Location DollarTree 1 Area x Square Inch x Factor x Factor x Factor - Value 0.7854 x d2 ($27) 1 1 254.5 x $27 x 1.00 x 0.80 x 0.70 - $3,8481 5 Table 4. Sample tree inventory and formula value Number Dollars Species Condition Location Dollar of Trees Diameter 0.7854d2 per sq. in. Factor % Factor % Factor % Value 18 12 113.1 $27 Linden, Amer. 70 Excel 100 Street 60 23,086 42 12 113.1 $27 Linden, Amer. 70 Good 80 Street 60 43,094 23 16 201.1 $27 Linden, Amer. 70 Good 80 Street 60 41,961 26 16 201.1 $27 Linden, Amer. 70 Fair 50 Street 60 29,646 12 24 452.4 $27 Linden, Amer. 70 Good 80 Street 60 49,250 8 24 452.4 $27 Linden, Amer. 70 Poor 20 Street 60 8,208 Total Value $195,245 - USING THE CTLA FORMULA TO APPRAISE t Council of Tree and Landscape Appraisers. 1250 ALL STREET TREES I St. NW, Suite 504, Washington, D.C. 20005; telephone (202) 789-2592. — Urban foresters and city tree boards may find it useful to estimate the dollar value of all street and park 2 International Society of Arboriculture. P.O. Box trees on public property. This appraised value may be 908,Urbana, IL.61801; telephone (217) 328-2032. — used as evidence of the contribution that public trees make to property value in the community and demonstrate Issued in furtherance of cooperative extension work in the need for an appropriate budget to manage this re- agriculture and home economics, acts of May 8 and June 30, source. The CTLA formula can be used to appraise the 1914,in cooperation with the U.S. Department of Agriculture. value of street and park trees. Patrick J. Borich, Dean and Director of Minnesota Extension The estimating process should begin with a tree Service,University of Minnesota, St. Paul, Minnesota 55108. inventory that lists trees by diameter, species, condition The University of Minnesota, including the Minnesota Exten- _ sion Service, is committed to the policy that all persons shall factor, and location factor. A partial tree inventory is have equal access to its programs, facilities, and employment shown in Table 4. without regard to race, religion, color, sex, national origin, Reading across the first row,this community has 18 handicap, age, veteran status, or sexual orientation. — trees with 12-inch diameters. They are American lindens Copyright ©1990, Minnesota Extension Service, Uni and have a species factor of 70 percent, a condition factor verity of Minnesota. All rights reserved. of 100 percent,and a location factor of 60 percent. Apply- - the CTLA formula to this information we can estimate that these American lindens have a collective value of AUTHORS $23,086. By applying the CTLA Formula to each row of _ information in the table, we calculate the value of all Melvin J.Baughman,Extension Specialist--Forest American lindens to be $195,245. Resources and Associate Professor, Department By using an expanded table that includes all species, of Forest Resources. diameters, condition factors, and location factors, it is David W.French,Extension Plant Pathologist and possible to calculate the value of all trees in a community. Professor, Department of Plant Pathology. C.Gustav Hard,Extension Horticulturist and Pro- CALTION! fessor, Department of Horticultural Science. This publication gives a brief overview of tree and Ken Holman,Plant Health Specialist,Minnesota shrub appraisal procedures. Appraisals should be under- Department of Agriculture, Plant Industry - taken only by experienced foresters, arborists, or other Division. tree specialists who can fully evaluate plant conditions. Michael E.Zins,Assistant Extension Horticulturist, These specialists may need to work in collaboration with a and Assistant Professor, Department of Horticul- real estate appraiser who is knowledgeable about local tural Science. property values. Different appraisers may arrive at widely differing appraisals of tree and shrub values. Check the credentials of appraisers and obtain more than Editor:Richard Sherman one appraisal when possible. Designer: Michael Mechavich 6 Planning Commission Meeting July 7 , 1993 - Page 20 Conrad: Any discussion? Ledvina moved, Mancino seconded that the Planning Commission recommend approval of a Non-Conforming Recreational Beachlot Permit to Boyer 's Sterling Estates with the following conditions: No motor vehicle access. No off street parking. No boat launch . No buildings. A seasonal dock 50 — 50 feet in length with the extension to be reviewed for compliance with the dock setback ordinance. No canoe racks. No boats on land. Two boats at the dock. No boats moored . A swimming beach. No swimming raft. All voted — in favor and the motion carried. PUBLIC HEARING: ZONING ORDINANCE AMENDMENT REGARDING THE LANDSCAPING REGULATIONS FOR SITE PLAN REVIEWS . Kate Aanenson presented the staff report on this item going over the proposed ordinance . Mancino: Does it include labor? Harberts: It should exclude labor . Mancino: Yeah , thank you . Labor , grading , maintenance . Any of that stuff? Aanenson: Yeah , this is just planting materials . Ledvina : So previously those things were included and now they 're excluded so? Aanenson: No , it wasn 't defined . In the bold , under minimum landscape value , that definition is completely new . We never explained what value meant . So I guess if somebody said that includes the site prep . Krauss : Well actually it was pretty nebulous . It did include , if you wanted to put . Aanenson: The project value . Krauss: If you wanted to put nice pavers in, you could have included anything . Aanenson: That 's what I 'm saying . Krauss : It 's strictly landscaping now which gives us a lot more . . . Aanenson: Or even site prep . It could have included that . That 's what I was saying . So now we 're excluding that out . We want to use , if planting materials , trees , shrubbery , that sort of thing . — Krauss: It 's also a lot easier for us to administer because we say give us a contract and show us that you did it . — _ Planning Commission Meeting July 7 , 1993 - Page 21 Mancino : Well and the other part is that $20 ,000 .00 for a million to $2 million building isn 't very much . If you included all that other . — Aanenson: Right . Krauss: Well except it isn 't except that most construction goes up pretty radically from there and if you figure a million dollars , I mean that 's , a house is normally $200 ,000 .00 plus these days so if you want to take 1/5 of it so you 're spending , according to a house , you 're spending $4 ,000 .00 or $5 ,000 .00 in landscaping for a house which is probably pretty reasonable . Aanenson: Again , what we found is that the percentages held through . What we need to do is clarify what we 're going to include as far as the — landscape material or the value . So that 's been clarified . Kate Aanenson continued with her staff report . Mancino: I have a question about that . I 'd like to see year round screened . - Aanenson : Well what we need to do is develop a definition . I didn 't put it in here Nancy but that 's a good comment . We ' ll develop that definition of screened as what it means in this definition and year round . Mancino : Right , because all through here I felt that . Krauss : It probably would be appropriate in the definition but it would also be appropriate just to list it that way every time it appears in the text . — Mancino : Great . Harberts : Comment on ( b ) when you talk about the , at the city 's discretion the value of tree preservation may be utilized to offset landscaping requirements . Are you comfortable with using the city discretion or does it need to be something more defined so that the city isn 't perceived as harrassing someone or something? Krauss : Well , we 're comfortable with it . I think more appropriately is the developer going to be comfortable . Aanenson : Well I guess my concern would be , what if someone decides to save some trees that we don 't consider of high value or junk and tries to give us , well geez these have been here for 20 years . Harberts : Well that 's what I 'm saying . When you say at the City 's discretion . Does that really give you enough meat? Krauss: Jo Ann 's pointing out , we did define substantial tree . What that means in the new tree protection ordinance . . . .assigned a dollar value and offsetting something . And where is it located on the site . It 's really a subjective matter that 's going to change on every plan . Planning Commission Meeting July 7 , 1993 - Page 22 Harberts : Do we need to use maybe as the baseline , and maybe you touched on it Paul , is the fact that we have some standards here in terms of dollar - values and then if we 've got the , you know like the size of the tree , it somehow offsets and if they don 't make that amount . Krauss: Well we can ask Jeff if there 's any kind of a way to assign a dollar value . But you know , it really , I 'm not sure you 're going to be able to . . .scientific measure . When I look at something like Target . I mean Target came to us and said well . . .trees on the site , therefore you owe - us a credit and we shouldn 't have to have to landscape as much . Well , first of all they didn 't save the trees . We bought them but and then you 're not going to want to trade off the fact that they have a 350 car — parking lot and that you have to do something sensitive to it . So I think you want to leave yourself some outs . Harberts : Well and I can understand that . My only concern was , you know when you leave things being subjective , it 's us against them type of thing . Who 's right and then we sit here as the arbitrators in a sense . So that 's why I was just trying to come up with something a little bit more . . . — Aanenson : No , I think there 's some things we can look at . My other concern would be , even though there is a substantial tree preservation in one area , but we still have a large parking lot and we still feel like we need some buffer and they said , gee we 've already met it with saving all this . But we still may want additional basis , so I think you 're right . I think maybe we can build in some qualifiers there . Harberts : Yeah , and I 'm just looking how do a I make a decision here . Aanenson : Okay . We ' ll look at that . Mancino : Well we 're writing a whole new conservation easement . Aanenson : Right , and that 's why this really needs to dovetail with that ordinance . Mancino : Which may help give some guidelines . Harberts : That 's what I 'm looking for is basically the guidelines . — Aanenson: Correct . That will have to be brought into this one . Okay then turning to page 3 . Again , the buffering issue . Then on Section 20-1181 . Vehicular areas . Mancino : Oh , I have lots to say . Aanenson : Okay . You know the goals of breaking up the hard surface and then we added the and provide for a reforestation with overstory trees from the species list . I did attach a species list . That hasn 't been adopted . _ That 's what they 're looking at as far as the tree preservation ordinance but I just put that in there so you could have an idea of what sort of things we 're looking at . But again , the intent is not to put shrubbery in there but to create a different , a micro environment where we have over story and shading of the parking lot . A canopy . Planning Commission Meeting July 7 , 1993 - Page 23 Mancino: I think it 's great . I just would like to add some things for us to think about in there for guidelines for developers and one is , a list of suitable trees for these small landscaped areas in the parking lots . It 's different from the list that follows that are for small areas in a parking lot and can take the heat of the parking lot surface , which I think we can do . And I 'd also like to talk a little bit about irrigation in those areas . Should we . Aanenson: We did on Target require irrigation and that 's a good point . Maybe that 's something we want to go to on a commercial . Krauss: Minnetonka always mandated it . I think Eden Prairie requires it . We never have . Now you have developers that put it in and then you have people like Gene Borg who we made put a lot of landscaping in . This is a number of years ago , who then went through 5 or 6 years of drought and was working overtime just to get the stuff to live and lost a lot of stuff . — Mancino : And this year we wouldn 't need it at all . Krauss: It may well be an appropriate thing to do and I don 't think we 'd be out of line with other communities . There is a significant expense of course attached to it . Mancino : We 're also helping in the long run instead of having to replace - these trees and the shrubbery every year . Aanenson: I think that also ties into one of the conditions that we put in here is that , which is some new language , is that we want to have continued maintenance of the site and that may be one way to achieve it is requiring irrigation . And a lot of the bigger developers like Target , that 's pretty much mandatory . It 's the small ones and maybe there 's a breaking point . I don 't know . Mancino: Yeah , that 's a good question . Aanenson : Maybe that 's something we can look at too . Compare with other cities . If there 's a size parcel that they look at but I know like Target - just does it automatically . Krauss: We can do a check of ordinances again but I haven 't looked at it for 4-6 years but I don 't know . . . Harberts: What 's considered expanses of hard surface? What 's the number? You know , what 's considered an expanse? I mean is it like a parking lot? Aanenson : It 's defined further in here in the ordinance . Where it talks about 6 ,000 square feet . Anything over 6 ,000 and then we start giving _ percentages . So I think that 's really more of an intent statement . What the goal is to have over story trees to break up that and then if you look under the top of page 4 , that kind of gets into the specifics as far as how much , based on the square footage . I can go through those really quick and - then if you feel like we need to add something there to clarify that , you can go back and do that because maybe that makes sense . I don 't know . Planning Commission Meeting July 7 , 1993 - Page 24 Harberts: Well you know , just in my thought process here is , you know the industrial area where we have the parking , things like that , they seem to sometimes be at a premium for space . Is it really necessary to put the trees there? I guess I 'm not a real strong proponent . Aanenson: Maybe industrial versus commercial area too? Harberts : Yeah . I don 't know . I ' ll certainly defer to some of my other colleagues here but is it always a good idea or necessary to try and get that effect in an industrial area? In a parking lot? Krauss: Well the screening we certainly want . Harberts : Yeah . Oh the screening . Aanenson: You 're talking about the interior? Harberts : Interior yeah . Krauss : I don 't think it 's necessarily a bad example of how to do things but industrial area isn 't necessarily hidden someplace down in the park . It 's also on Highway 5 and it 's Redmond Products , it 's DataServ . It 's sites that have a tremendous amount of visibility . Now the Highway 5 corridor plan is going to give some additional drive as to what you 're going to do on properties in those areas but we really weren 't going to change the landscaping standards much Kate , were we? I mean that 's pretty - much . Aanenson : Well I did make one or two small changes that aren 't on your _ copy and I 'd like to review with you . Krauss : You know I think when you have a Rosemount that has 1 ,100 people working there , that 's an awful lot of parking stalls . And it 's not an invisible site . It 's sitting astride what 's going to be a State , well . . . I 'd be relunctant to kind of waive it . On the other hand , I understand why you know , especially in public transit and stuff , if we can get people - closer to the door . Aanenson : But we have looked at other issues . We kind of use that word micro climate but you know they do need a place for snow removal . If they build any larger areas where they can put some of this stuff and just all the heat loss and what that 's doing . Harberts : I guess there 's always the opportunity to request a waiver with reasons why . Aanenson : Sure . Harberts : And I think the comment that was said earlier that there 's numerous communities that do this . But I know it 's expensive to maintain and looking from the perspective of the employer or business owner . Krauss : And the common , the complaint I 've heard for 16 years is , snow plow drivers will hit them . You can 't put the curbs there because snow Planning Commission Meeting July 7 , 1993 - Page 25 - plow drivers can 't steer around them . Well , you 'd think that sooner or later they could learn . Yeah , we could hold a snowplow derby or something and train them to turn . Not to be facetious but actually what we 're doing - here is advantageous because instead of allowing there to be 40 or 50 little tree planters stuck in a parking lot , which is the typical thing , we 're saying we want fewer bigger ones . Harberts : Right . Oh and I agree with you on that . I find it a hazard at Market Boulevard but that 's my comment for what it 's worth . - Mancino : I 'd also like to add a section in here about soil preparation for the parking lot trees . Because one of the things that we saw at the parking lot seminar at the Arboretum was they showed some of the holes that were dug and there was still just construction material in it . There was not good soil preparation . So I think there needs to be some , also for any tree , any landscaping material to survive , it 's going to need a good soil composition . And I 'd also , on page 4-5 . A minimum of one tree shall be required for each . . . Aanenson : I was going to make some changes to that whole section . Mancino : Okay , good . I 'd love to add to these , just to expand people 's thinking of landscaping in areas , especially of retail/commercial that you _ could also add flowering plants . Perennials . You could add indigenous grasses . So to give a little more openness to what could be ground cover . It could be you know indigenous grasses . Perennials . Because perennials are great because in the winter they won 't be up and they won 't get , you - could put rebechi or something there that would just come up and be great . Wild flowers . - Kate Aanenson continued with her staff report . Mancino: On page 5 . C , Boulevard and Streetscape plantings . I 'm not sure I understand the last sentence . I think what you want to say is that trees shall be selected from the approved list of tree species . The city may approve alternatives if it meets the intent of the ordinance period . Correct? Page 5 , ( C ) . Aanenson: Oh C at the top , I 'm sorry . Right . Mancino : I would just reword that . Aanenson : Well yeah , it needs to tie back down to what we said before . The two different lists maybe even . Ledvina : Are we in a public hearing situation? - Conrad : I don 't think so . No . No . . . Mancino: Kate , on the species of all the trees . Can we put those in alphabetical order according to common name? I think that would be easier for people to locate . Aanenson : According to the . Planning Commission Meeting July 7 , 1993 - Page 26 Mancino: I 'd do common name . Because I don 't know what , you know people don 't know how to look for . Conrad: When this comes back , this comes back for a public hearing . Aanenson: It is . It 's noticed as a public hearing . — Conrad: Is this it? Aanenson: Yeah . But if you 'd like to see it back with the changes , that 's great . Conrad: So have you just been giving a staff report? Okay , thanks . — Aanenson: Detailed . Conrad: Okay . We will open it up for public comments . We 'll note that there 's nobody . Richard , anything you want to talk about? Councilman Wing: It 's over my head . Conrad: Okay . We ' ll note that there were no comments . Is there a motion to close the public hearing? — Mancino moved, Ledvina seconded to close the public hearing. All voted in favor and the motion carried. The public hearing was closed. — Conrad: Kate can you , I guess the only thing that concerns me , I think it 's some neat stuff . The cost associated with the water and whatever . I 'm not sure that . — Aanenson: That 's something I think if you 'd like to have it brought back , that 's something I would do between now and then is research what other — communities do and then look at , and then maybe as we . . .maybe there is a breakdown in the size as efficiency whatever . Like parking for the Target lot obviously is very large and maybe it makes sense based on far away it _ is to sprinkle it . Maybe there 's smaller ones so that it doesn 't . . .that 's something we can look at . Conrad : Yeah , I 'd like to know a little bit more . — Harberts: We 've got irrigation over at the park and ride . And that was just recent . What was that last year that we completed it I think . We put — irrigation in . Aanenson: How big is your parking lot? Harberts: Well Filly 's . Krauss: But it 's not in the parking lot . It 's around the perimeter . — Harberts: Well it 's around in the grass , yeah . Mancino: What about down at Chaska? Does your new one have irrigation too? Planning Commission Meeting July 7 , 1993 - Page 27 Harberts: Yep . The only way to water it . Then we make the city pay for the water . - Conrad : How do you trigger that? What turns it on and off? Harberts : Just a box . There 's a box and . Ledvina : A black box . Harberts : Yeah , or is it green . I don 't know . But it 's . Aanenson: It 's a timer . Harberts : Timer , yeah . Krauss: Well for that matter , I mean we irrigate all the islands in 78th _ Street . It caused an accident when it went off and froze and somebody slammed into a light pole . But otherwise it worked perfectly well . Aanenson : So we 'll look at for next time . That 's a good comment . Conrad: It 's a public hearing . What do you need in terms of , you don 't need a motion do you? Aanenson: I can make the changes and bring it back . Table it . Ledvina : I have some additional comments or questions . Conrad: Oh , okay . That 's right , we 've only gone through Nancy 's comments . — Ledvina : I 'm just going to start at the beginning here where on page 1 . I was thinking that maybe we can in some areas we can tighten up the language a little bit . I mean if we 're going to , just my philosophy that if we 're _ going to lay this thing out for developers to follow , we don 't want to have so many may 's in there where the developer thinks it 's at his discretion whether he needs to do this or not . I have a concern about that . I understand when you want to use discretion on how you apply it but when I - looked at this thing kind of from the developer 's perspective , I 'm thinking for example number 3 . Replacement of trees . Approve for removal by the city may be required . Aanenson: Well that section right here , maybe I need to make that clear again . That section we didn 't make any changes to because we 're going to take the new tree preservation ordinance and kind of work those two together . Krauss: Jo Ann and I are working on that right now. Aanenson : So this whole section is going to be completely rewritten . _ Krauss : We ' ll take out the may 's and substitute with shall 's . Ledvina : Okay . Well I would just say , by the city will be required and then maybe another paragraph . Exceptions granted in certain instances and Planning Commission Meeting July 7 , 1993 - Page 28 describe those or something like that . If you want to identify alternatives for that specific requirement . Again let 's see , so that that 's specific one . In what instance will we not require the replacement — of trees on a caliper per inch basis? Aanenson: They 're considered of no value , isn't that what you 're looking at? Olsen: Right . That 's a hole in the ordinance . When do we not require it? Ledvina: Yeah . Olsen: What we 're doing now is that we 'll be specifying which tree , when it goes through review process . Which trees can be removed like we 've been doing with Trotter 's and such . You don 't have to replace that for instance . And what we 're saying that if they 're trees that were designated _ for preservation that were removed that were not supposed to be removed , then you have to do . . . Ledvina : Okay , I see that you 've got a good idea of how this works down in — terms of the developer following this thing and working toward compliance and to meet the requirements . And let 's see . Moving down to number 5 . Just using the terminology , removal of diseased and damaged trees is — permissible only if they can be saved . I mean who determines that and all of that and what is saved? If that 's flushed out in some other place , so someone that 's reading this can interpret that somehow . Mancino: Yeah , I 'd like to say it 's determined by the City 's Forester . Harberts: I think with something like that too , isn 't there some — consideration for even like cost . Maybe a diseased tree can be saved by that cost . I mean we have to be sensible about it . Olsen: We 're looking at an ordinance that if it is a diseased tree , you have to remove it . Krauss: Yeah , we actually flipped it on it 's head and changed the orirentation of that section . Ledvina : So this is all rewritten? Krauss : The whole thing . What we said is if trees require trimming or removal , that we 're ordering people to do it as a part of the tree — preservation plan . Aanenson: Unfortunately saying that this will be rewritten appears on the top of the next page . So I tried to make an attempt to say that we didn 't — really look at this because that will be , as it says here , will be amended with the adoption of the tree preservation . Ledvina : Just one other thing and I won 't belabor the point but just one other thing in item 6 . We talked about this and our deliberations here . When we talk about looking at the third sentence . No fill material or construction activity shall occur in these areas . I think we should also Planning Commission Meeting July 7 , 1993 - Page 29 say something to the effect too . No fill material or construction activity , including heavy equipment traffic , shall occur within these areas because I can just see the developer needing to get through an area and - just taking his 50 ton tractor and going right over this big old oak and then putting the fence back up . And who 's to know that he hasn 't . _ Olsen : Well we 'll know because the tree will die and you ' ll be able to see that . Harberts: But how long later? Ledvina : I know we 've talked about that many times but I think it 's a real important thing that the developer understands . Aanenson: Jo Ann , aren 't you going to put in snow fence around all of them? - Olsen: Right . Krauss: I mean we 're doing everything we can but you 're talking about long term tree loss? Ledvina : Just talking about construction activity . And I would just say it includes heavy equipment traffic because you might want to take the fence down to get something over there . Not doing anything to the tree . Aanenson : It still damages the roots . Ledvina : Yeah , it will still damage the root system . So at any rate . And then let 's move to . On page 2 . Section 8 . Just so I understand . When — you say , at the city 's discretion the value of tree preservation may be utilized to offset landscaping requirements . You mean the value of tree preservation easement? Krauss : The value of the trees . Ledvina : The value of the other trees on the site? We 're not specifically — tying it to the tree preservation easement in this case . Okay . Krauss : You mean some kind of a land cost analysis? Ledvina : Right . I thought about that and I was wondering , was that when you were getting at here? That 's it . = Conrad : Diane , anything else? Harberts: No . Conrad: Nancy , anything? Mancino: No . Conrad: Well you know , we 've given some comments . Again Kate I 'm back to , what are we doing here? We 're really not passing , the comments you 're Planning Commission Meeting July 7 , 1993 - Page 30 going to incorporate them . Will they come back? Aanenson: Yes . I 'd like to bring them back . Conrad : So really our comments are good and we don 't really have to make a motion now do we? - Aanenson: No . Unless you want to table it . Conrad: Maybe we should just table it . Krauss : Or continue it . Aanenson: It 'd be at least a month for me to do a quick turn around and call other cities and may Jeff maybe come up with different species list . Interior . Exterior . So maybe a month so maybe the first one in August . The next one in July is pretty full . So August would be a month so August 4th probably would be . Conrad: Nancy , you had a motion? Mancino: I move that we table the , what are we looking at? Zoning Ordinance amendment to the landscaping regulations and we see it again when Kate has added our comments to it . Conrad : Is there a second? Ledvina : Second . Mancino moved , Ledvina seconded to table the Zoning Ordinance amendment regarding the landscaping regulations for site plan reviews . All voted in favor and the motion carried . PUBLIC HEARING: SUBDIVISION ORDINANCE AMENDMENT INCREASING THE NUMBER OF TREES REQUIRED PER RESIDENTIAL LOT FROM 1 TO 2 OVERSTORY TREES . Jo Ann Olsen presented the staff report on this item . Harberts : Is there concern by engineering or whoever , when you talk about boulevard planting . I 'm guessing you 're not just talking trees . Maybe some other type of planting materials . Olsen: We were just talking trees . Harberts : Are they concerned that the root system may , in a sense somehow get involved with the utilities and cause problems? Olsen : Oh yeah . Sidewalks . Mancino : How have other cities dealt with that? I mean Minneapolis . You go to any city around the country . CITY OF CHANHASSEN - i 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN. MINNESOTA 55317 (612) 937-1900 • FAX (612) 937-5739 IS MEMORANDUM TO: Planning Commission FROM: Paul Krauss, AICP; Director of Planning DATE: July 12, 1993 SUBJ: Ordinance Regulating Sexually Oriented Businesses Last year the Planning Commission reviewed proposals for regulating sexually oriented businesses. The ordinance had been requested by the Mayor and City Council who were made aware of the problem by then-current news accounts of communities who were caught short without regulations. When confronted by problem uses, they had few options and often had to resort to protracted and costly legal battles. Our City Attorney advised us that nobody could construct a total prohibition to such uses due to First Amendment protection. Therefore, a community must allow some reasonable options for these uses. There are thought to be two approaches. The first is the "combat zone" wherein an area is specifically designated to accept these uses. This must be a legitimate commercial area to qualify. Nobody preferred this option since there is no willingness to write off a portion of our town. The second approach is to use an ordinance to define such uses and then require setbacks from sensitive uses such as churches, schools and day care centers. You can also require a physical separation between sexually oriented uses. A $500 licensing fee is proposed to be charged annually and this is managed in a manner that is similar to liquor licenses. The City can inspect the premises at any time. A minimum 500' setback from sensitive land uses is proposed. At that point we all agreed that this had become less of a zoning and more of a licensing matter. _ It was then referred to the Public Safety Commission for action. They approved of the approach and modified the ordinance slightly. However, when we finally got it back to the City Council we found we had to have a formal Public Hearing on the ordinance at the Planning Commission. While this is not strictly speaking a zoning ordinance, it does establish setbacks which is a land use standard. f .14, PRINTED ON RECYCLED PAPER Planning Commission July 12, 1993 Page 2 STAFF RECOMMENDATION Staff recommends that the Planning Commission recommend the City Council approve the proposed ordinance regulating sexually oriented businesses. ATTACHMENTS 1. Memo from Paul Krauss dated April 7, 1992. 2. Proposed ordinance. 3. Example of required factual record from Lakeville. CITY OF CHANHASSENf t 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937-1900 • FAX (612) 937-5739 MEMORANDUM TO: Planning Commission FROM: Paul Krauss, Planning Director DATE: April 7, 1992 SUBJ: Continued Discussion on Proposed Ordinance Amendment Dealing with Sexually-Oriented Businesses Last month, staff presented a memo from the City Attorney outlining possibilities for the regulation of adult entertainment establishments. The Planning Commission has been asked on several occasions by the Mayor and City Council to deal with this issue. Recently, the newspaper has had extensive reports on the impact adult entertainment establishments have had on a daycare center in the town of Ramsey. It was my understanding that the Planning Commission is being asked to address this issue to pre- empt such situations to the greatest extent possible. • In the City Attorney's memo, he indicates that there are basically two approaches to regulating adult entertainment. The first is the "war zone" approach wherein the city establishes a district or neighborhood where all adult entertainment establishments are required to locate. The second approach is to establish a definition for adult businesses, require permits, and require that these be located a certain distance from sensitive land uses such as churches and daycare centers. Due largely to court interpretations of first amendment rights, it is not legally possible to completely preclude the location of these businesses in our community. We also note that since the last Planning Commission meeting where this was discussed, the City of Bloomington adopted an ordinance regulating adult entertainment. The City Attorney has drafted an amendment to Chapter 10 of the Chanhassen City Code dealing with licenses, permits, and miscellaneous business regulations to deal with sexually-oriented businesses. In the attorney's opinion, this adequately defines sexually- - oriented businesses, and under Section 10-162 precludes their location within 500 feet of a church, public or private elementary or secondary schools, licensed daycare centers, or a public park adjacent to a residential district. Roger told me that this is the type of �0, PRINTED ON RECYCLED PAPER Planning Commission — April 7, 1992 Page 2 ordinance that has been consistently upheld and is being adopted by other communities in the Twin Cities area. Staff is comfortable with the approach being proposed by the City Attorney. We believe this ordinance responds to the requests of the City Council while being enforceable and reasonably easy to administer. We would ask that the Planning Commission review the — attached ordinance and provide some comments and direction. After your review, the Public Safety Commission will also be asked to review this ordinance for comment. Since this section of the code is not a part of the Zoning Ordinance, any public hearing that may be held would need to be held at the City Council level. RECOMMENDATION — Staff recommends that the Planning Commission adopt the position recommending review and approval of this ordinance by the Chanhassen City Council. — pc: Scott Harr, Public Safety Director CITY OF CHANHASSEN CARVER AND HENNEPIN COUNTIES, MINNESOTA ORDINANCE NO. AN ORDINANCE AMENDING CHAPTER 10 ; DEFINING AND LICENSING SEXUALLY ORIENTED BUSINESSES; PROVIDING FOR DISTANCING REQUIREMENTS; RESTRICTIONS OF SUCH BUSINESSES FROM SCHOOLS AND OTHER USES; AND PENALTIES FOR VIOLATIONS THE CITY COUNCIL OF THE CITY OF CHANHASSEN ORDAINS: Section 1. Chapter 10 of the Chanhassen City Code is hereby amended by adding Article V to read: ARTICLE V. SEXUALLY ORIENTED BUSINESSES Sec. 10-150. Purpose and intent Sec. 10-151. Definitions Sec. 10-152 . Classification Sec. 10-153 . License required Sec. 10-154 . Issuance of license Sec. 10-155 . Fees Sec. 10-156 . Inspection Sec. 10-157 Expiration of license Sec. 10-158 . Suspension Sec. 10-159 . Revocation. Sec. 10-160 . Appeal Sec. 10-161 . Transfer of license Sec. 10-162 . Location of sexually oriented businesses Sec. 10-163 . Exemption from location restrictions Sec. 10-164 . Additional regulations for escort agencies Sec. 10-165 . Additional regulations for nude model studios Sec. 10-166 . Additional regulations for adult theaters and adult motion picture theaters Sec . 10-167 . Additional regulations for adult motels Sec. 10-168 . Regulations pertaining to exhibition of sexually explicit films or videos Sec. 10-169 . Enforcement Sec. 10-170 . Injunction Sec. 10-150 . PURPOSE AND INTENT. (a) It is the purpose of this Chapter to regulate sexually oriented businesses to promote the health, safety, morals, and general welfare of the citizens of the City, to guard against the inception and transmission of disease, and to establish reasonable and uniform regulations to prevent the concentration of sexually 6834 r07/06/93 oriented businesses within the City. The provisions of this Chapter have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, it is not the intent nor effect of this Chapter to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. (b) The City Council further finds that experience from other cities demonstrates that sexually oriented businesses conducted in private by members of the same or the opposite sex, and employing personnel with no specialized training, are susceptible to operation in a manner contravening, subverting or endangering the health, safety and welfare of members of the community by being the sites of acts of prostitution, illicit sex, and occasions of violent crimes, thus requiring close inspection, licensing, and regulation. (c) It is the intent of the City Council that the locational - regulations of Section 10-162 of this Chapter are promulgated pursuant to Minnesota Statutes § 462 . 357 et. seq. , Chapter 20 of the City Code (the zoning ordinance) , and the City's Comprehensive Plan. Sec. 10-151. DEFINITIONS. The following words, terms, and phrases, when used in this Chapter, shall have the meanings ascribed to them in this Section, except where the context clearly indicates a different meaning: ADULT ARCADE means any place to which the public is permitted or invited wherein coin-operated or slug-operated or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, or other image-producing devices are maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are - distinguished or characterized by the depicting or describing of "specified sexual activities" or "specified anatomical areas. " ADULT BOOKSTORE, ADULT VIDEO STORE, or ADULT STORE means a commercial establishment which as one of its principal business purposes offers for sale or rental for any form of consideration any one or more the following: (1) books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes or video reproductions, slides, or other visual representations which depict or describe "specified sexual activities" or "specified anatomical areas" ; or (2) instruments, devices, or paraphernalia which are designed for use in connection with "specified sexual activities. " 6834 r07/06/93 2 ADULT CABARET means a nightclub, bar, restaurant, or similar commercial establishment which regularly features: (1) persons who appear in a state of nudity; or (2) live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities" ; or (3) films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas. " ADULT MASSAGE PARLOR means a massage parlor which excludes minors by reason of age, or which provides, for any form of consideration, the rubbing, stroking, kneading, tapping, or rolling of the body, if the service provided by the massage parlor is distinguished or characterized by an emphasis on "specified sexual activities" or "specified anatomical areas" . ADULT MOTEL means a hotel , motel or similar commercial establishment which: (1) offers accommodations to the public for any form of consideration; provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas" ; and has a sign visible from the public right of way which advertises the availability of this adult type of photographic reproductions ; or (2) offers a sleeping room for rent for a period of time that is less than 10 hours ; or (3) allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than 10 hours. ADULT MOTION PICTURE THEATER means a commercial establishment where, for any form of consideration, films, motion pictures, video cassettes , slides, or similar photographic reproductions are regularly shown which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas. " ADULT THEATER means a theater, concert hall , auditorium, or similar commercial establishment which regularly features persons who appear in a state of nudity or live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities. " CITY MANAGER means the city manager of the City of Chanhassen. _ 6834 r07/06/93 3 ESCORT means a person who, for consideration, agrees or offers to act as a companion, guide, or date for another person, or who agrees or offers to privately model lingerie or to privately perform a striptease for another person. ESCORT AGENCY means a person or business association who furnishes, offers to furnish, or advertises to furnish escorts as one of its primary business purposes, for a fee, tip, or other consideration. ESTABLISHMENT means and includes any of the following: (1) the opening or commencement of any sexually oriented business as a new business; (2) the conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business ; (3) the addition of any sexually oriented business to any other existing sexually oriented business ; or (4) the relocation of any sexually oriented business. LICENSEE means a person in whose name a license to operate a sexually oriented business has been issued, as well as the individual listed as an applicant on the application for a license. NUDE MODEL STUDIO means any place where a person who appears in a state of nudity or displays "specified anatomical areas" is provided to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons who pay money or any form of consideration. NUDITY or a STATE OF NUDITY means: (1) the appearance of a human bare buttock, anus, male genitals, female genitals, or female breast; or (2) a state of dress which fails to opaquely cover a human buttock, anus, male genitals, female genitals, or areola of the female breast. PERSON means an individual , proprietorship, partnership, corporation, association, or other legal entity. RESIDENTIAL DISTRICT means that area of the City zoned as RSF, R-4 , R-8 , R-12 , or R-16 by the City Code. SEMI-NUDE means a state of dress in which clothing covers no more than the genitals, pubic region, and areolae of the female breast, as well as portions of the body covered by supporting straps or devices. 6834 r07/06/93 4 SEXUAL ENCOUNTER CENTER means a business or commercial enterprise that, as one of its primary business purposes, offers for any form of consideration: ( 1) physical contact in the form of wrestling or tumbling between persons of the opposite sex; or (2) activities between male and female persons and/or persons of the same sex when one or more of the persons is in a state of nudity or semi-nude. SEXUALLY ORIENTED BUSINESS means an adult arcade, adult bookstore or adult video store, adult cabaret, adult motel , adult motion picture theater, adult theater, escort agency, nude model studio, or sexual encounter center. SPECIFIED ANATOMICAL AREAS means human genitals in a state of sexual arousal . SPECIFIED SEXUAL ACTIVITIES means and includes any of the following: (1) the fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breasts ; (2) sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, or sodomy; (3) masturbation, actual or simulated; or (4) excretory functions as part of or in connection with any of the activities set forth in (1) through (3) above. SUBSTANTIAL ENLARGEMENT of a sexually oriented business means the increase in floor area occupied by the business by more than 25 percent (25%) , as the floor area existed on March 31 , 1992 . TRANSFER OF OWNERSHIP OR CONTROL of a sexually oriented business means and includes any of the following: ( 1) the sale, lease, or sublease of the business; (2) the transfer of securities which constitute a controlling interest in the business, whether by sale, exchange, or similar means ; or (3) the establishment of a trust, gift, or other similar legal device which transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control . _ 6834 r07/06/93 5 Sec. 10-152 . CLASSIFICATION. The following are classified as sexually oriented businesses: (a) adult arcades; (b) adult bookstores, adult video stores, adult stores; (c) adult cabarets: (d) adult motels; (e) adult massage parlors; (f) adult motion picture theaters ; (g) adult theaters ; (h) escort agencies ; (i) nude model studios ; and (j ) sexual encounter centers. Sec. 10 . 153 . LICENSE REQUIRED. (a) A sexually oriented business may not be operated without a valid license, issued by the City for the particular type of business. (b) An application for a license must be made on a form provided by the City Clerk. The application must be accompanied by a sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared but must be drawn to a designated scale or drawn with market dimensions of the interior of the premises to an accuracy of plus or minus six inches. Applicants who must comply with Section 10-168 of this Chapter shall submit a diagram meeting the requirements of that Section. (c) The applicant must be qualified according to the provisions of this Chapter and the premises must be inspected and found to be in compliance with the law by the fire department and building official . (d) If a person who wishes to operate a sexually oriented business is an individual , the individual must sign the application for a license as applicant. If a person who wishes to operate a sexually oriented business is other than an individual , each individual who has a 10 percent or greater interest in the business must sign the application for a license as applicant. Each applicant must be qualified under Section 10-154 and each applicant shall be considered a licensee if a license is granted. 6834 r07/06/93 6 Sec. 10-154. ISSUANCE OF LICENSE. (a) The City Manager shall approve the issuance of a license by the City clerk to an applicant within 30 days after receipt of an application unless the Manager finds one or more of the following to be true: (1) An applicant is under 18 years of age. (2) An applicant is delinquent in his or her payment to the City of taxes, fees, fines, or penalties assessed against him or her or imposed upon him or her in relation to a sexually oriented business. (3) An applicant has failed to provide information reasonably necessary for issuance of the license or has falsely answered a question or request for information on the application form. (4) An applicant has been convicted of a violation of a provision of this Chapter within two years immediately preceding the application. The fact that a conviction is being appealed shall have no effect. (5) An applicant is residing with a person who has been denied a license by the City to operate a sexually oriented business within the preceding 12 months, or residing with a person whose license to operate a sexually oriented business has been revoked within the preceding 12 months. (6) The premises to be used for the sexually oriented business have not been approved by the fire department and the building official as being in compliance with applicable laws and ordinances. (7) The license fee required by this Chapter has not been paid. (8) An applicant has been employed in a sexually oriented business in a managerial capacity within the preceding 12 months and has demonstrated that he or she is unable to operate or manage a sexually oriented business premises in a peaceful and law-abiding manner, thus necessitating action by law enforcement officers. (9) An applicant or the proposed establishment is in violation of or is not in compliance with this Ordinance. (10) An applicant or an applicant's spouse has been convicted of a crime: 6834 r07/06/93 7 a. involving any of the following offenses: 1. prostitution as described in Minn. Stat. § 609 . 321 ; 2 . solicitation, inducement of promotion of prostitution as described in Minn. Stat. § 609 . 322 ; 3 . receiving profit derived from prostitution as described in Minn. Stat. § 609 . 323 ; 4 . other prohibited acts relating to prostitution as described in Minn. Stat. § 609 . 324 ; 5 . obscenity as described in Minn. Stat. § 617 . 241 ; 6 . sale, dissemination, distribution, display or exhibition of harmful material to minors as described in Minn. Stat. §§ 617 . 293 and 617 . 294 ; 7 . sexual performance by a child as described in Minn. Stat. § 617 . 246 ; 8 . dissemination or possession of child pornography as described in Minn. Stat. § 617 . 247 ; 9 . indecent exposure as described in Minn. Stat. § 617 . 23 ; 10 . criminal sexual conduct as described in Minn. Stat. §§ 609 . 342 , 609 . 343 , 609 . 344 , and 609 . 345 ; 11 . incest, as described in Minn. Stat. § 609 . 365; or 12 . criminal attempt, conspiracy, or solicitation to commit any of the foregoing offenses ; b. for which: (i) less than two years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is of a misdemeanor offense; 6834 r07/06/93 8 (ii) less than five years have elapsed since the date of conviction or the date of release from confinement for the conviction, whichever is the later date, if the conviction is of a felony offense; or (iii) less than five years have elapsed since the date of the last conviction or the date of release from confinement for the last conviction, whichever is the later date, if the convictions are of two or more misdemeanor offenses or combination of misdemeanor offenses occurring within any 24-month period. (b) The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant or applicant's spouse. (c) An applicant who has been convicted or whose spouse has been convicted of an offense listed in Section 10-154 (a) (10) (a) may qualify for a sexually oriented business license only when the time period required by Section 10-154 (a) (10) (b) has elapsed. (d) The license, if granted, shall state the name of the person or persons to whom it is granted, the expiration date, and the address of the sexually oriented business. The license shall _ be posted in a conspicuous place at or near the entrance to the sexually oriented business so that it may be easily read at any time. Sec. 10-155 . LICENSE FEES; LICENSE INVESTIGATION FEES. The annual fee for a sexually oriented business license is $500 . The investigation fee for the purpose of issuing a license is $500 . In the event that the license is denied upon application, the license fee shall be refunded; however, no part of the license investigation fee shall be returned to the applicant. No part of the annual license fee shall be refunded if the license is suspended or revoked. Sec. 10-156. INSPECTION. (a) An applicant or licensee shall permit representatives of the police department, fire department, and building inspection division to inspect the premises of a sexually oriented business for the purpose of insuring compliance with the law, at any time it is occupied or open for business. (b) A person who operates a sexually oriented business or their agent or employee commits an offense if the person refuses to permit a lawful inspection of the premises by a representative of 6834 r07/06/93 9 the police department at any time it is occupied or open for business. (c) The provisions of this section do not apply to areas of an adult motel which are currently being rented by a customer for use as a permanent or temporary habitation. Sec. 10-157 . EXPIRATION OF LICENSE. (a) Each renewal license shall be issued for a maximum period of one (1) year. All licenses expire on June 30 of each year. Each license may be renewed only by making application as provided in Section 10-153 . Application for renewal should be made at least 90 days before the expiration date. If the Council determines good and sufficient cause is shown by the Applicant for failure to file a timely renewal application, the Council may, if other provisions of the Chapter are complied with, grant the application. (b) When the City Manager denies renewal of a license, the applicant shall not be issued a license for one year from the date of denial . If, subsequent to denial , the City Manager finds that the basis for denial of the renewal license has been corrected or abated, the applicant may be granted a license if at least 90 days have elapsed since the date denial became final . Sec. 10-158 . SUSPENSION. The City Manager may suspend a license for a period not to exceed thirty (30) days following written notice and an opportunity to be heard if the Manager determines that a licensee or an employee of a license has : (1) violated or is not in compliance with this Chapter; (2) engaged in excessive use of alcoholic beverages while on the sexually oriented business premises ; ( 3) refused to allow an inspection of the sexually oriented business premises as authorized by this Chapter; (4) knowingly permitted unlawful gambling by any person on the sexually oriented business premises; (5) demonstrated inability to operate or manage a sexually oriented business in a peaceful and law-abiding manner thus necessitating action by law enforcement officers. Sec. 10-159 . REVOCATION. (a) The City Manager may revoke a license preceded by written notice and an opportunity to be heard if a cause for suspension set 6834 r07/06/93 10 forth in Section 10-158 occurs and the license has previously been suspended within the preceding 12 months. (b) The City Manager may revoke a license preceded by written notice and an opportunity to be heard if the City Manager determines that: (1) a licensee gave false or misleading information in the material submitted to the City during the application process; (2) a licensee or an employee has knowingly allowed possession, use, or sale of controlled substances on the premises; (3) a licensee or an employee has knowingly allowed prostitution on the premises ; (4) a licensee or an employee knowingly operated the sexually oriented business during a period of time when the licensee's license was suspended; (5) a licensee has been convicted of an offense listed in Section 10-154 (a) (10) (a) for which the time period required in Section 10-154 (a) (10) (b) has not elapsed; (6) on two or more occasions within a 12-month period, _ a person or persons committed an offense occurring in or in the licensed premises of a crime listed in Section 10-154 (a) (10) (a) , for which a conviction has been obtained, and the person or persons were employees of the sexually oriented business at the time the offenses were committed; (7) a licensee or an employee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation, or sexual contact to occur in or on the licensed premises. The term "sexual contact" shall have the meaning as it is defined in Minn. Stat. § 609 . 341, Subd. 11 (b) ; or (8) a licensee is delinquent in payment to the City for ad valorem taxes, local lodging tax, or other taxes or fees related to the sexually oriented business. (C) The fact that a conviction is being appealed shall have no effect on the revocation of the license. (d) Subsection 10-159 (b) (7) does not apply to adult motels as a ground for revoking the license unless the licensee or employee knowingly allowed the act of sexual intercourse, sodomy, oral copulation, masturbation, or sexual contact to occur in a public place or within public view. _ 6834 r07/06/93 1 1 (e) When the City Manager revokes a license, the revocation shall continue for one year and the licensee shall not be issued a sexually oriented business license for one year from the date revocation became effective. If, subsequent to revocation, the City Manager finds that the basis for the revocation has been corrected or abated, the applicant may be granted a license if at least 90 days have elapsed since the date the revocation became effective. If the license was granted under Subsection 10-159 (b) (7) , an applicant may not be granted another license until the appropriate number of years required under Section 10-154 (a) (10) (a) have elapsed. Sec. 10-160 . APPEAL. (a) If the City Manager denies the issuance of a license, or suspends, or revokes a license, the Manager shall send to the applicant, or licensee, by certified mail , return receipt requested, written notice of the action, and the right to an appeal . The aggrieved party may appeal the decision of the City Manager within 10 days of receiving notice of the City's action. The filing of an appeal stays the action of the City Manager in suspending or revoking a license until the City Council makes a final decision. (b) PROCEDURE: The City Council may appoint a committee of the Council or an independent hearing officer to hear the matter, report findings of fact and a recommendation for disposition to the Council . Hearings on the appeal shall be open to the public and the licensee or applicant shall have the right to appear and be represented by legal counsel and to offer evidence in its behalf. At the conclusion of the hearing, the City Council shall make a final decision. (c) ADDITIONAL REQUIREMENTS : The City Council may condition denial , suspension, revocation, or non-renewal of a license upon appropriate terms and conditions. Sec. 10-161. TRANSFER OF LICENSE. A licensee shall not transfer his or her license to another, nor shall a licensee operate a sexually oriented business under the authority of a license at any place other than the address designated in the application. Sec. 10-162 . LOCATION OF SEXUALLY ORIENTED BUSINESSES. (a) A person commits an offense if he or she operates or causes to be operated a sexually oriented business within 500 feet of: (1) a public or private elementary or secondary school ; (2) a licensed day care center; 6834 r07/06/93 12 (3) a residential district; or (4) a public park adjacent to a residential district. (b) A person commits an offense if he or she causes, caused or permits the operation, establishment, substantial enlargement, or transfer of ownership or control of a sexually oriented business within 500 feet of another sexually oriented business. (c) A person commits an offense if he or she causes, caused or permits the operation, establishment, or maintenance of more than one sexually oriented business in the same building, structure or portion thereof, or the increase of floor area of any sexually oriented business in any building, structure, or portion thereof containing another sexually oriented business. (d) For the purposes of Subsection (a) , measurement shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure used as a part of the premises where a sexually oriented business is conducted, to the nearest property line of the premises of a church or public or private elementary or secondary school or licensed day care center, or to the nearest boundary of an affected public park, residential district, or residential lot. — (e) For purposes of Subsection (b) of this section, the distance between any two sexually oriented businesses shall be measured in a straight line, without regard to intervening structures or objects, from the closest exterior wall of the structure in which each business is located. (f) Any sexually oriented business lawfully operating on — March 31 , 1992 , that is in violation of Subsections (a) , (b) , or (c) of this section shall be deemed a nonconforming use. The nonconforming use will be permitted to continue. Such nonconforming uses shall not be increased, enlarged, extended or altered except that the use may be changed to a conforming use. If two or more sexually oriented businesses are within 500 feet of one another and otherwise in a permissible location, the sexually oriented business which was first established and continually operating at a particular location is the conforming use and the later-established business (es) is nonconforming. (g) A sexually oriented business lawfully operating as a conforming use is not rendered a nonconforming use by the location, subsequent to the grant or renewal of the sexually oriented business license, of a church, public or private elementary or secondary school , licensed day care center, or public park within 500 feet of the sexually oriented business. This provision applies - only to the renewal of a valid license, and does not apply when an application for a license is submitted after a license has expired or has been revoked. — 6834 r07/06/93 13 Sec. 10-163 . EXEMPTION FROM LOCATION RESTRICTIONS. (a) If the City Manager denies the issuance of a license to an applicant because the location of the sexually oriented business establishment is in violation of Section 10-162 of this Chapter, then the applicant may, not later than 10 calendar days after receiving notice of the denial , file with the City Clerk a written request for an exemption from the location restrictions of Section 10-162 . (b) If the written request is filed with the City Clerk within the 10-day limit, the City Council shall consider the request. The City Clerk shall set a date for the hearing within 60 days from the date the written request is received. (c) The City Council shall hear and consider evidence offered by any interested person. The formal rules of evidence do not apply. (d) The City Council may, in its discretion, grant an exemption from the locational restrictions of Section 10-162 if it makes the following findings: ( 1) that the location of the proposed sexually oriented business will not have a detrimental effect on nearby properties or be contrary to the public safety or welfare; (2) that the granting of the exemption will not violate the spirit and intent of this Chapter of the City Code ; (3) that the location of the proposed sexually oriented business will not downgrade the property values or quality of life in the adjacent areas or encourage the development of urban blight; (4) that the location of an additional sexually oriented business in the area will not be contrary to any program of neighborhood conservation nor will it interfere with any efforts of urban renewal or restoration ; and (5) that all other applicable provisions of this Chapter will be observed. - (e) The City Council shall grant or deny the exemption by a majority vote. Failure to reach a majority vote shall result in denial of the exemption. Disputes of fact shall be decided on the basis of a preponderance of the evidence. The decision of the City Council is final . (f) If the City Council grants the exemption, the exemption is valid for one year from the date of the Council 's action. Upon 6834 r07/06/93 14 the expiration of an exemption, the sexually oriented business is in violation of the locational restrictions of Section 10-162 until the applicant applies for and receives another exemption. (g) If the City Council denies the exemption, the applicant may not re-apply for an exemption until at least 12 months have elapsed since the date of the Council's action. (h) The grant of an exemption does not exempt the applicant from any other provisions of this Chapter other than the locational restrictions of Section 10-162 . Sec. 10-164 . ADDITIONAL REGULATIONS FOR ESCORT AGENCIES. (a) An escort agency shall not employ any person under the age of 18 years. (b) A person commits an offense if he or she acts as an escort or agrees to act as an escort for any person under the age of 18 years. Sec. 10-165. ADDITIONAL REGULATIONS FOR NUDE MODEL STUDIOS. (a) A nude model studio shall not employ any person under the age of 18 years. (b) A person commits an offense if he or she appears in a state of nudity or knowingly allows another to appear in a state of nudity in an area of a nude model studio premises which can be viewed from the public right of way. Sec. 10-166 . ADDITIONAL REGULATIONS FOR ADULT THEATERS AND ADULT MOTION PICTURE THEATERS. (a) A person commits an offense if he or she knowingly allows — a person under the age of 18 years to appear in a state of nudity in or on the premises of an adult theater or adult motion picture theater. (b) It is a defense to prosecution under Subsection (a) of this section if the person under 18 years was in a restroom not open to public view or persons of the opposite sex. Sec. 10-167 . ADDITIONAL REGULATIONS FOR ADULT MOTELS. (a) Evidence that a sleeping room in a hotel , motel , or similar commercial establishment has been rented and vacated two or more times in a period of time that is less than 10 hours creates _ a rebuttable presumption that the establishment is an adult motel as that term is defined in this Chapter. (b) A person commits an offense if, as the person in control of a sleeping room in a hotel , motel, or similar commercial establishment that does not have a sexually oriented business 6834 r07/06/93 15 license, he rents or subrents a sleeping room to a person and, within 10 hours from the time the room is rented, he or she rents or subrents the same sleeping room again. (c) For purposes of Subsection (B) of this section, the terms "rent" or "subrent" mean the act of permitting a room to be occupied for any form of consideration. Sec. 10-168. REGULATIONS PERTAINING TO EXHIBITION OF SEXUALLY EXPLICIT FILMS OR VIDEOS. (a) A person who operates or causes to be operated a sexually oriented business, other than an adult motel , which exhibits on the premises in a viewing room of less than 150 square feet of floor space, a film, video cassette, or other video reproduction which depicts specified sexual activities or specified anatomical areas, shall comply with the following requirements : (1) Upon application for a sexually oriented business license, the application shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one or more manager's stations and the location of all overhead lighting fixtures and designating any portion of the premises in which patrons will not be permitted. A manager's station may not exceed 32 square feet of floor area . The diagram shall also designate the place at which the permit will be conspicuously posted, of granted. A professionally prepared diagram in the nature of an engineer's or architect's blueprint shall not be required; however, each diagram should be oriented to the north or to some designated street or object and should be drawn to a designated scale or with marked dimensions sufficient to show the various internal dimensions of all areas of the interior of the premises to an accuracy of plus or minus six inches . The City Manager may waive the foregoing diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certifies that the configuration of the premises has not been altered since it was prepared. (2) The application shall be sworn to be true and correct by the applicant. (3) No alteration in the configuration or location of a manager's station may be made without the prior approval of the City Manager or his or her designee. (4) It is the duty of the owners and operator of the premises to ensure that at least one employee is on duty and situated in each manager's station at all 6834 r07/06/93 16 times that any patron is present inside the _ premises. (5) The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager's station of every area of the premises to which any patron is permitted access for any purpose excluding restrooms . Restrooms may not contain video reproduction equipment. If the premises has two or more manager's stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose from at least one of the manager's stations. The view required in this subsection must be by direct line of sight from the manager's station. (6) It shall be the duty of the owners and operator, and it shall also be the duty of any agents and employees present in the premises to ensure that the view area specified in Subsection (5) remains unobstructed by any doors, walls, merchandise, display racks or other materials at all times that any patron is present in the premises and to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to Subsection (1) of this section. (7) The premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are _ permitted access at an illumination of not less than one (1 . 0) footcandle as measured at the floor level . (8) It shall be the duty of the owners and operator and it shall also be the duty of any agents and employees present in the premises to ensure that the illumination described above, is maintained at all times that any patron is present in the premises. (b) A person having a duty under Subsections (1) through (8) of Subsection (a) above commits an offense if the person knowingly fails to fulfill that duty. _ 6834 r07/06/93 17 Sec. 10-169 . ENFORCEMENT. (a) Any person violating a provision of this Chapter, upon conviction, is punishable by a fine not to exceed $700 . 00 and ninety (90) days in jail . (b) It is a defense to prosecution under this Chapter that a person appearing in a state of nudity did so in a modeling class operated: (1) by a proprietary school licensed by the State of Minnesota ; a college, junior college, or university supported entirely or partly by taxation; (2) by a private college or university which maintains and operates educational programs in which credits are transferrable to a college, junior college, or university supported entirely or partly by taxation; or (3) in a structure: a. which has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing; and b. where in order to participate in a class a student must enroll at least three days in advance of the class ; and c. where no more than one nude model is on the premises at any one time. Sec. 10-170 . INJUNCTION. A person who operates or causes to be operated a sexually oriented business without a valid license or in violation of Section 10-162 of this Chapter is subject to a suit for injunction as well as prosecution for criminal violations. Section 2 . Effective Date. This Ordinance shall be effective ninety (90) days after its passage and publication according to law. PASSED AND ADOPTED by the Chanhassen City Council this day of , 1993 . ATTEST: Don Ashworth, Clerk/Manager Donald J. Chmiel , Mayor (Published in the Chanhassen Villager on , 1993 . ) 6834 r07/06/93 18 GtiV CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A. L Attorneys at Law C!'. OF C HaN;NAccFh L Thorn.,-I.C:a' 1 II (61')45' Ro_ur N. Knut-,m '1 _ 452.5550 Thorn \1 Fax l61 (;ar% G.Fuch, Jame,R \\Akron Elliott R. F:nct,ch Nlickid A.Rroh.tck July 9 , 1993 Renae D.Steiner V. Mr. Paul Krauss Chanhassen City Hall 690 Coulter Drive, Box 147 Chanhassen, Minnesota 55317 RE: Adult Use Ordinance Dear Paul : To separate the adult business ordinance a factual record is required on the secondary effects of such uses. Enclosed is what Lakeville used. You may find the material useful in preparing your report. Very truly yours, CAMPBELL, KNUTSON, SCOTT & FU HS, P.A. RNK: srn Roger N. Knutson Enclosure cc: Scott Harr L L wire 317 • EaganJale Office Center • 1380 Corporate Center Curve • Eagan, N1\ 55121 L j - Northwest Associated Consultants , Inc . IAC URBAN P L A N N I N G • D E S I G N • MARKET RESEARCH 1 - J PLANNING REPORT - PART ONE — iTO: Lakeville Mayor and City Council Lakeville Planning Commission 1 FROM: David Licht — DATE: 6 July 1993 - — RE: Lakeville: Zoning Ordinance Revision Adult Uses IFILE NO: 336 . 00 - 93 . 09 1 BACKGROUND Within the last several years, the issue of adult uses unexpectedly — locating within a community has been a matter of some notice and concern. A primary case in point was the City of Ramsey, Minnesota where an adult bookstore opened in close proximity to a child day — care center. In this situation, the community found it had no controls which were felt necessary to properly regulate adult use r activities . This and other highly published cases have drawn — attention to this issue throughout the Twin Cities Metropolitan Area and surrounding regions . L Lakeville City Officials have noted the experiences which other — communities have confronted. Moreover, given the developing nature of Lakeville, plus its extensive freeway exposure, City Officials project that adult uses may find the community a positive location — for the siting of such activities . As a consequence of this situation, efforts have been directed, authorizing the ' r investigation and analysis of adult use controls which may be _ appropriate for the City. 1 Regulations governing adult use activities are available in three forms . The first is licensing of such business . Licensing focuses — upon the operators and operations of such establishments so as to insure compliance with established laws as well as restriction of 1 potential criminal activity. The second form of regulation is — zoning which addresses physical measures to minimize the adverse secondary impacts of adult use facilities . Crime, property value 1 loss, neighborhood deterioration, and exposure to minors are the _ r _ 5775 Wayzata Blvd. • Suite 555 • St. Louis Park, MN 55416 . (612) 595-9636•Fax. 595-9837 primary concerns dealt with by this regulatory technique. A third type of regulation deals with public health and the spread of communicable diseases. Within the last several months, Lakeville has proceeded with an evaluation and subsequent adoption of adult use licensing provisions . With this aspect of the matter addressed, attention is now being directed towards zoning. The approach being taken to the establishment of adult use zoning controls for Lakeville is divided into two parts . The first part encompasses analyzing adult uses to determine whether or not further controls are in fact needed as _ well as the extent and general types of regulations which are available if a need is found to exist . Should a conclusion be reached that additional regulations are necessary, Part Two of the effort will be the formulation and enactment of appropriate zoning measures . At some later point in time, the City may wish to consider public health regulations which it believes may be necessary. This planning report responds to Part One of the zoning regulatory effort . In the material which follows and accompanies this report, background information on adult uses is provided as is comment on general adult use regulation concerns . The intent of this material is to provide a basis from which City Officials can make a determination on the need for adult uses controls . ADULT USE IMPACTS AND GENERAL REGULATION An initial step in any evaluation effort is to first define and understand the topic which is being addressed. As it relates to adult use control , this is a highly critical aspect of the process . Adult uses are afforded special protections under the First Amendment (Free Speech) of the U.S . Constitution. As a consequence _ of this situation, an extreme degree of precaution must be exercised so as to not restrict or infringe upon constitutionally protected rights . Simultaneously, if and where a need may exist, appropriate measures which protect the general health, safety, and welfare of the public must be outlined. Based upon work completed in other Minnesota cities, adult uses have been defined as follows : Adult uses include adult bookstores, adult motion picture _ theaters, adult mini-motion picture theaters, adult massage parlors, adult steam room/bathhouse/sauna facilities, adult companionship establishments, adult rap/conversation parlors, adult health/sport clubs, adult cabarets, adult novelty businesses , adult motion picture arcades, adult modeling studios, adult hotels/motels, adult body painting studios, and other premises, 2 1 jenterprises, establishments, businesses or places open to — some or all members of the public, at or in which there is an emphasis on the presentation, display, depiction or Idescription of "specified sexual activities" or — "specified anatomical areas" which are capable of being seen by members of the public. Activities classified as 1 obscene as defined by Minnesota Statutes 617 .241 are not included. 1 As previously noted, adult uses are protected by the First Amendment of the U.S. Constitution. As recognized by the above definition, however, activities classified as obscene do not have similar rights and as such, are already prohibited by State law in — Minnesota. Due to the extent of controversy surrounding adult use activities, 1 there is a vast amount of documentation on the subject matter. In essence, this material can be divided into two types or categories . _ The first deals with the psychological and behavioral impact upon 1 individuals . To a major extent, the findings of such studies concluded that for typical, well adjusted mature person, adult uses do not produce negative results . The second type of information 1 available deals with a broader community or societal perspective and such issues as crime, property values, physical deterioration, public health, and exposure to minors . It is on the basis of this second type of study information and the potential negative impacts 1 that control of adult uses has been judged as acceptably by the courts . — D The matter of potential negative impact is an extremely important factor of adult use control . Due to the constitutional protections, adult use controls cannot be "content" based. In other words, up to the point where material or activities become I� classified as obscene, a City cannot impose regulations. Rather, — JJ communities can only enact ordinances which address what have been defined as negative or adverse "secondary" impacts . J — Appendix A of this report provides a listing of documentation and studies which are available on community based impacts of adult J uses . Due to perceived applicability, only this category of data has been listed. Should City Officials desire a listing of studies or specific documentation on individual impact analysis, such can be provided upon request . JWithin the context of community impact of adult uses, Appendix B of this report is a reproduction of the Report of the Attorney 1 General' s Working. Group on the Regulation of Sexually Oriented Business, June 6, 1989 . It is requested that City Officials give this material special attention and consideration as a basis upon ,] which to make a determination on the need for adult use regulations J within the City of Lakeville . 1 3 _ i I - Going beyond a question of need for controls is the issue of the extent of control . A primary source of information on this aspect of adult use regulation is the U. S . Supreme Court decision involving the Renton, Washington case . A copy of this decision is _ contained in Appendix C for City Officials reference. Again, a thorough review of this material is strongly recommended. This case reiterates the requirement that communities afford adult uses the right to operate and provides parameters on the extent of regulation which may be exercised. While it is essential and critical that Lakeville City Officials draw their own conclusions and determinations on the need and possible extent of adult use controls , the following is a summary of our office' s review of potential regulatory measures : 1 . Activities defined as adult uses are protected by First Amendment to the U. S . Constitution. 2 . A community must provide reasonable opportunity for adult uses to exist . The Renton, Washington Supreme Court case provides a guidance in this regard. 3 . Adult uses may produce a secondary impact or effect which is judged as negative to the health, safety, and general welfare of the community and as a result, these secondary impacts or effects can be controlled. 4 . A community, due to the secondary impact of adult uses , can regulate such activities and restrict their proximity to sensitive activity sites which are typically oriented toward minors . 5 . Due also to secondary impacts, a community can maintain the separation of adult uses from one another. 6 . A community has the right to police adult uses to insure they are operating in a fashion where the secondary impacts or effects are mitigated to the extent possible . SUMMARY It is again emphasized that as a first step in the matter of the possible establishment of adult use regulations, City Officials must first determine that a need exists due to possible adverse secondary impacts . A thorough discussion and public input on this issue needs to take place . Moreover, from the outset , the community needs to recognize the basis and extent of control which may be exercised. t 4 pr -] Representatives of Northwest Associated Consultants, Inc. are available to attend City meetings where this topic is to be I discussed and to provide comment as needed. Additionally, our office can provide copies of other studies and documentation which — City Officials may view as necessary or appropriate for their discussions and decisions . 1 A final matter is that if a conclusion is reached that the potential adverse secondary impacts of adult uses require 1 regulation, such a determination should be in the form of a formal resolution. To this possible end, our office has prepared a draft _ findings which have been included as Appendices D and E. Upon modification as may be viewed as appropriate, this type of resolution and findings should be enacted by both the City Council — and Planning Commission. 1 — ij - I pc : Robert Erickson Michael Sobota Daryl Morey Roger Knutson Ir — D - a _ ] _ I - 1 5 — 1 — ADULT USE STUDIES ES SELECTED REFERENCES r CO1VMUNITY IMPACT EVALUATIONS I Adult Entertainment Businesses in Indianapolis, An Analysis, February 1984 Adult Entertainment, 40 Acre Study, St. Paul Division of Planning, 1 1987 Adult Entertainment, Supplement Study, St . Paul Division of Planning, 1988 ASPO Planning Advisory Service Report #327: Regulating Sex Businesses by William Toner, May 1977 City of Coon Rapids, City Code-Licenses ' City of Minneapolis City Code ! — City of Ramsey, Adult Uses, Planning Report, 20 September 1990, Northwest Associated Consultants, Inc. City of Renton, et al, Appellant V. Playtime Theatre, Inc. , et al, [475 US 41] (No. 84-1360] Director' s Report, Adult Entertainment, Department of Construction and Land Use, City of Seattle, Washington, August 1989 Relation of Criminal Activity and Adult Businesses; Prepared by the City of Phoenix Planning Department, May 1979 �J Report of the Attorney General' s Working Group on the Regulation of Sexually Oriented Businesses , June 6, 1989 Rochester/Olmsted Planning Department Adult Entertainment Research Report, March 2, 1988 Surveys of X-Rated Pornographic Activity in Dakota County 1986- 1989 , May 20, 1989 1 APPENDIX A U i . • : I 1 NAC 'C FILE: ---,z.---....,:....,:.— --t — • • Client Project .fob No — • REPORT OF THE ATTORNEY GENERAL'S . WORKING GROUP ON THE REGULATION11 _ OF SEXUALLY ORIENTED BUSINESSES 1 - • g June 6, 1989 - id - 0 ` V• ZC1L^Du v.. ;11{„ cr 'L� Cy1`•O?? l Fc: r ..& '2� — 1 v4u S5S — J • HUBERT H. HUMPHREY, Ill - Attorney General State of Minnesota _ t i, DEEPDXSITION EXHIBIT i _ I., ;I - • • MEMBERS OF THE ATTORNEY GENERAL'S WORKING GROUP ON THE REGULATION OF SEXUALLY ORIENTED BUSINESSES • Ann Burkhart John Laux Associate Professor Minneapolis Chief of Police University of Minnesota Minneapolis, Minnesota Law School Minneapolis, Minnesota Sharon Sayles-Belton Councilwoman Honorable Kathleen A .Blatz .. Minneapolis, Minnesota Minnesota House of Representatives IR/Bloomington, Minnesota Honorable Kathleen Vellenga Minnesota House of Representatives Honorable Terry M. Dempsey DFL/St. Paul, Minnesota Minnesota House of Representatives IR/New Ulm, Minnesota William Wilson ;. Councilman - Thomas L Fabel St. Paul, Minnesota Lindquist & Vennum Minneapolis, Minnesota .\\ i f • • • I I I I TABLE OF CONTENTS INTRODUCTION 1 ISUMMARY 3 I IMPACTS OF SEXUALLY ORIENTED BUSINESSES 6 — Minneapolis Study 6 I St. Paul7 — 1 Indianapolis 8 — I Phoenix 9 ILos Angeles 10 _ Concentration of Sexually Oriented Businesses Neighborhood Case Study 10 II Testimony 12 — SEXUALLY ORIENTED BUSINESSES AND ORGANIZED CRIME 14 �1 — PROSECUTORIAL AND REGULATORY ALTERNATIVES 20 I OBSCENITY PROSECUTION 21 _ RECOMMENDATIONS 24 Il OTHER LEGAL REMEDIES 25 :i RICO/FORFEITURE 25 RECOMMENDATIONS 28 11 NUISANCE INJUNCTIONS 28 _ RECOMMENDATIONS 30 J ZONING • 30 — -i Supreme Court Decisions 31 LL — L - -1- k 6 .. . • Standards and Need for Legal Zoning • 35 Documentation to Support Zoning Ordinances 36 I Availability of Locations for Sexually Oriented Businesses 37 Distance Requirements 39 Requiring Existing Businesses to Comply with New Zoning 40 1 RECOMMENDATIONS 41 LICENSING AND.OTHER REGULATIONS 41 I RECOMMENDATIONS 44 • CONCLUSION _45 1 1 I _ I 1 I INTRODUCTION — Many communities in Minnesota have raised concerns about the impact of — sexually oriented businesses on their quality of life. It has been suggested that sexually oriented businesses serve as a magnet to draw prostitution and other crimes into a vulnerable neighborhood. Community groups have also voiced the concern that sexually oriented businesses can have an adverse effect on property values and impede neighborhood revitalization. It has beer. suggested that spillover effects of the — businesses can lead to sexual harassment of residents and scatter unwanted evidence of sexual liaisons in the paths of children and the yards of neighbors. — I Although many communities have sought to regulate sexually oriented businesses, — these efforts have often been controversial and equally often unsuccessful. Much community sentiment against sexually oriented businesses is an outgrowth of hostility — to sexually explicit forms of expression. Any successful strategy to combat sexually oriented businesses must take into account the constitutional rights to free speech which limit available remedies. Only those pornographic materials which•are determined to be "obscene" have no — constitutional protection. As explained Ler in more detail, only that pornography which, according to community ssvdards and taken as a whole, "appeals to the — prurient interest" (as opposed to an"•ihterest in healthy sexuality), describes or depicts sexual conduct in a "patently offensive\,'ay" and "lacks serious literary, artistic, political — or scientific value," can be prohibited or prosecuted. Miller v. California, 413 U.S. 15, 24 (1973). — • Other pornography and the businesses which purvey it can only be regulated 4 where a harm is demonstrated and the remedy is sufficiently tailored to prevent that — harm without burdening First Amendment rights. In order to reduce or eliminate the impacts of sexually oriented businesses, each community must find the balance between the dangers of pornography and the constitutional rights to free speech. Each community must have evidence of harm. Each community must know the range of — legal tools which can be used to combat the adverse impacts of pornography and sexually oriented businesses. -1- — L On June 21, 1988, Attorney General Hubert Humphrey Ill announced the formation of a Working Group on the Regulation of Sexually Oriented Businesses to assist public officials and private citizens in finding legal ways to reduce the impacts of sexually oriented businesses. Members of the Working Group were selected for their special expertise in the areas of zoning and law enforcement and included bipartisan representatives of the state Legislature as well as members of both the Minneapolis and St. Paul city councils who have played critical roles in developing city ordinances reculating sexually oriented businesses. The Working- Group heard testimony and conducted briefings on the impacts of sexually oriented businesses on crime and communities and the methods available to reduce or eliminate these impacts. Extensive research was conducted to review regulation and prosecution strategies used in other states and to analyze the legal ramifications of these strategies. As testimony ony was presented, the Working Group reached a consensus that a comprehensive approach is required to reduce or eliminate the impacts of sexually oriented businesses. Zoning and licensing regulations are needed to protect residents from the intrusion of "combat zone" sexual crime and harassment into their neighborhoods. Prosecution of obscenity hls played an important role in each of the cities which have significantly reduCd or eliminated pornography. The additional threat posed by the involvement of o%-nized crime, if proven to exist, may justify the resources needed for prosecution of obscenity or require use of a forfeiture or racketeering statute. The \',forking Group determined that it could neither advocate prohibition of all sexually explicit material nor the use of regulation as a pretext to eliminate all sexually oriented businesses. This conclusion is no endorsement of pornography or the businesses which profit from it. The Working Group believes much pornography conveys a message which is degrading to women and an affront to human dignity. Commercial pornography promotes the misuse of vulnerable people and can be used by either a perpetrator or a victim to rationalize sexual violence. Sexually oriented — businesses have a deteriorating effect upon neighborhoods and draw involvement of organized crime. -2- ,.. , • , ! _ 3 Communities are not powerless to combat these problems. But to be most effective in defending itself from pornography each community must work from the evidence and within the law. The report of this Working Group is designed to assist local communities in developing an appropriate and effective defense. — IThe first section of the report discusses evidence that sexually oriented _ businesses, and the materials from which they profit, have an adverse impact on the Isurrounding communities. It provides relevant evidence which local communities can — use as part of their justification for reasonable regulation of sexually oriented Ibusinesses. • _ I The Working droup also discussed the relationship between sexually oriented businesses and organized crime. Concerns about these broader effects of sexually • — II oriented businesses underlie the Working Group's recommendations that obscenity should be prosecuted and the tools of obscenity seized when sexually oriented — businesses break the law. The second section of this report describes strategies for regulating sexually Ioriented businesses and prosecuting obscenity. The report presents the principal _ alternatives, the recommendations of the W&king Group and some of the legal issues Ito consider when these strategies aresadopted. — I The goal of the Attorney General's\\Working Group in providing this report is to support and assist local communities who are struggling against the blight of — 3 pornography. When citizens, police officers and city officials are concerned about crime and the deterioration of neighborhoods, each of us lives next door. No — community stands alone. Il SUMMARY — IThe Attorney General's Working Group on the Regulation of Sexually Oriented Businesses makes the following recommendations to assist communities in protecting Ithemselves from the adverse effects of sexually oriented businesses. Some or all of — 1 -3- — these recommendations may be needed in any given community. Each community must decide for itself the nature of the problems it faces and the proposed solutions which would be most fitting. 1. City and county attorneys' offices in the Twin Cities metropolitan area should designate a prosecutor to pursue obscenity prosecutions and support that prosecutor with specialized training. - 2. The Legislature should consider funding a pilot program to demonstrate the efficacy of obscenity prosecution and should encourage the pooling of resources between urban and suburban prosecutor offices by making such cooperation a condition for receiving any such grant funds. 3. The Attorney General should provide informational resources for city and county attorneys Who prosecute obscenity crimes. 4. Obscenity prosecutions should begin with cases involving those materials which most flagrantly offend community standards. 5. The Legislature should end the present forfeiture statute to include as grounds for forfeitur \ all felonies and gross misdemeanors pertaining to solicitation, inducement, promotion or receiving profit from prostitution and operation of a "disorderly house." 6. The Legislature should consider the potential for a RICO-like statute with an obscenity predicate. 7. Prosecutors should use the public nuisance statute to enjoin operations of sexually oriented businesses which repeatedly violate laws pertaining to prostitution, gambling or operating a disorderly house. - , ` 8. Communities should document findings of adverse secondary 4` - to enactingzonin \ effects of sexually oriented businesses prior . 9 y r��� regulations to control these uses so that such regulations can be upheld n _i r ,,,,/;`. _ if challenged in court. ,1�'�4 �t,,� 9. To reduce the adverse effects of sexually oriented businesses, communities should adopt zoning regulations which set distance requirements between sexually oriented businesses and sensitive uses, - including but not limited to residential areas, schools, child care facilities, churches and parks. _ i 10. To reduce adverse impacts from concentration of these — businesses, communities should adopt zoning ordinances which set distances between sexually oriented businesses and between sexually _ oriented businesses and liquor establishments, and should consider le ___restricting sexually oriented businesses to one use per building. _ 11. Communities should require existing businesses to comply with 1 new zoning or other regulation of sexually oriented businesses within a reasonable time so that prior uses will conform to new laws. • .a 12. Prior to enacting licensing regulations, communities should Idocument findings of adverse secondary effects of sexually oriented - — f businesses and the relationship between these effects and proposed Elregulations so that such regulations can be upheld if challenged in _ court. 0 13. Communities should adopt regulations which reduce the likelihood of criminal activity related to sexually oriented businesses, including but 01 not limited to open booth ordinances and ordinances which authorize — denial or revocation of licenses when the licensee has committed 0 offenses relevant to the operation of the business. — it — -5- I 14. Communities should adopt regulations which reduce exposure of the community and minors to the blighting appearance of sexually oriented businesses, including but not limited to regulations of signage and exterior design of such businesses, and should enforce state law requiring sealed wrappers and opaque covers on sexually oriented material. (./ J‘� l _ C 1 'j , 41 • 11t IMPACTS OF SEXUALLY ORIENTED BUSINESSES The Working Groupreviewed evidence from studies conducted in Minneapolis and St. Paul and in other cities throughout the country. These studies, taken together, provide compelling evidence that sexually oriented businesses are associated with high crime rates and depression of property values. In addition, the Working Group heard testimony that the character of a neighborhood can dramatically change when there is a concentration of sexually oriented businesses adjacent to residential property. Minneapolis Study In 1950, on direction from the,t.finneapolis City Council, the Minneapolis Crime Prevention Center examined the e'i cs of sex-oriented and alcohol-oriented adult `.1 entertainment upon property values and crime rates. This study used both simple regression and multiple regression statistical analysis to evaluate whether there was a causal relationship between these businesses and neighborhood blight. Tne study concluded that there was a close association between sexually oriented businesses, high crime rates and low housing values in a neighborhood. When the data was reexamined using control variables such as the mean income in the neighborhood to determine whether the association proved causation, it was unclear whether sexually oriented businesses caused a decline in property values. The Minneapolis study concluded that sexually oriented businesses concentrate in areas _ which are relatively deteriorated and, at most, they may weakly contribute to the continued depression of property values. -6- • . However, the Minneapolis study found a much stronger relationship between _ sexually oriented businesses and crime rates. A crime index was constructed including robbery, burglary, rape and assault. The rate of crime in areas near sexually oriented businesses was then compared to crime rates in other areas. The study drew the following conclusions: 1. The effects of sexually oriented businesses on the crime rate index is positive and significant regardless of which control variable is used. 2. Sexually oriented businesses continue to be associated with higher — crime rates, even when the control variables' impacts are considered simultaneously. _ • According to the statistical analysis conducted in the Minneapolis- study, the addition of one sexually oriented business to a census tract area will cause an increase in the overall crime rate index in that area by 9.15 crimes per thousand people per year Veven if all other social factors remain unchanged. St. Raul In 1978, the St. Paul Divisior�of PIanning and the Minnesota Crime Control Planning board conducted "a study ,of the relationship between sex-oriented and alcohol-oriented adult entertainment businesses and neighborhood blight. This study looked at crime rates per thousand and median housing values over time as indices of neighborhood deterioration. The study combined sex-oriented and alcohol-oriented businesses, so its conclusions are only suggestive of the effects of sexually oriented 1 businesses alone. Nevertheless, the study reached the following important conclusions: 1. There is a statistically significant correlation between the location of adult businesses and neighborhood deterioration. 1 ' -7- 2. Adult entertainment establishments tend to locate in somewhat deteriorated areas. 3. Additional relative deterioration of an area follows location of an adult business in the area. • LZ 1 4. There is a significantly higher crime rate associated with two such 9 Y businesses in an area than is associated with only one adult business. 5. Housing values are also significantly lower in an area where there are three adult businesses than they are in an area with only one such business. Similar conclusions about the adverse impact of sexually oriented businesses on the community were reached in studies conducted in cities across the nation. Indianapolis In 1983, the City of Indianapolis researched the relationship between sexually oriented businesses and property valuea The study was based on data from a national random sample of 20 percent of the American Institute of Real Estate Appraisers. The Study found the following: 1. The appraisers overwhelmingly (80%) felt that an adult bookstore located in a neighborhood would have a negative impact on residential property.values within one block of the site. 2. The real estate experts also overwhelmingly (71%) believed that there _ would be a detrimental effect on commercial property values within the same one block radius. -8- 3. This negative impact dissipates as the distance from the site increases, so that most appraisers believed that by three blocks away from an adult 1, 1 �,2 - — bookstore, its impact on property values would be minimal. i Indianapolis also studied the relationship between crime rates and sexually — . oriented bookstores, cabarets, theaters, arcades and massage parlors. A 1984 study entitled "Adult Entertainment Businesses in Indianapolis" found that areas with sexually — oriented businesses had higher crime rates than similar areas with no sexually oriented businesses. — 1 • 1. Major crimes, such as criminal homicide, rape, robbery, assault, — 1 burglary, and larceny, occurred at a rate that was 23 percent higher in those areas which had sexually oriented businesses. • — i2. The sex-related crime rate, including rape, indecent exposure, and child molestation, was found to be 77 percent higher in those areas with sexually — oriented businesses. — il PhoeAix I la The Planning Department of Phoenix, Arizona published a study in 1979 entitled "Relation of Criminal Activity and Adult B'usinesses." This study showed that arrests for sexual crimes and the location of sexually oriented businesses were directly related. iThe study compared three areas with sexually oriented businesses with three control areas which had similar demographic and land use characteristics, but no sexually Coriented establishments. The study found that, — 1. Property crimes were 43 percent higher in those areas which contained — itia sexually oriented business. 2. The sex crime rate was 500 percent higher in those areas with sexually oriented businesses. II - 0 3. The study area with the greatest concentration of sexually oriented _ businesses had a sex crimes rate over 11 times as laroe as a similar area having no sexually oriented businesses. Los Angeles A study released by the Los Anoeles Police Department in 1984 supports a- - relationship between sexually oriented businesses and rising crime rates. This study is . less definitive, since it was not designed to use similar areas as a control. The study _ indicated that there were 11 sexually oriented adult establishments in the Hollywood, California, area in 1969. By 1975, the number had grown to 88. During the same time _ period, reported incidents of "Part I" crime (i.e., homicide, rape, aggravated assault, robbery, burglary, larceny and vehicle theft) increased 7.6 percent in the Hollywood area while the rest of Los Angeles had a 4.2 percent increase. "Part II" arrests (i.e. fernery, prostitution, narcotics, liquor law violations, and gambling) increased 3.4 percent in the rest of Los Angeles, but 45.4 percent in the Hollywood area. ,\• — Concentration of Sexuallv\Oriented Businesses NeiahboTood Case Study In St. Paul, there is one neighborhood which has an especially heavy concentration of sexually oriented businesses. The blocks adjacent to the intersection of University Avenue and Dale Street have more than 20 percent of the city's adult uses (4 out of 19), including all of St. Paul's sexually oriented bookstores and movie theaters. The neighborhood, as a whole, shows signs of significant distress, including the highest unemployment rates in the city, the highest percentage of families below the poverty line in the city, the lowest median family income and the lowest percentage of high school and college graduates. (See 40-Acre Study on Adult Entertainment, St. Paul Department of Planning and Economic Development, Division of Planning, 1987 at p. 19.) It would be difficult to attribute these problems in any simple way to sexually oriented businesses. • -10- I However, it is likely that there is a relationship between the concentration of sexually oriented businesses and neighborhood crime rates. The St. Paul Police Department has determined that St. Paul's street prostitution is concentrated in a "street prostitution zone" immediately ad;acent to the intersection where the sexually oriented businesses are located. Police statistics for 1966 show that, of 279 prostitution arrests for which specific locations could be identified, 70 percent (195) were within the - "street prostitution zone." Moreover, all of the locations with 10 or more arrests for Iprostitution were within this zone. - I The location of sexually oriented businesses has also created a perception in the community that this is an unsafe and undesirable part of the city. In 1983, Western State Bank, which is currently located across the street from an adult bookstore, hired a research firm to survey area residents regarding their preferred location for a bank and their perceptions of different locations. A sample of 305 people were given a list of locations end asked, "Are there any of these locations where you would not feel safe conducting your banking business?" No more than 4 per cent of the respondents said they would feel unsafe banking at r7 other locations in the city. But 36 percent said they would feel unsafe banking at Dale _ and University, the corner where the sexual& oriented businesses are concentrated. jThe Working Group reviewed the 1987 40-Acre Study on Adult Entertainment r prepared by the Division of Plannir1g in St. Paul's Department of Planning and Economic Development. This study su'mmarized testimony presented to the Planning r Commission regarding neighborhood problems: LI Residents in the University/Dale area report frequent sex-related harassment Cby motorists and pedestrians in the neighborhood. Although it cannot be proved that the harassers are patrons of adult businesses, it is reasonable to Ususpect such a connection. Moreover, neighborhood residents submitted evidence to the Planning Commission in the form of discarded pornographic a literature allegedly found in the streets, sidewalks, bushes and alleys near adult businesses. Such literature is sexually very explicit, even on the cover, U - 1 -11- - and under the present circumstances becomes available to minors even though its sale to minors is prohibited. i Testimony The Working Group heard testimony that a concentration of sexually oriented businesses has serious impacts upon the surrounding neighborhood. The Working Group heard that pornographic materials are left in adjacent lots. One person reported I to the police that he had found 50 pieces of pornographic material in a church parking lot near a sexually oriented business. Neighbors report finding used condoms on their lawns and sidewalks and that sex acts with prostitutes occur on streets and alleys in plain view of families and children. The Working Group heard testimony that arrest rates understate the level of crime associated with sexually oriented businesses. Many robberies and thefts from "johns" and many assaults upon prostitutes are never reported to the police. _ Prostitution also results in harassment of neighborhood residents. Young girls on their way to school or young women on their.,way to work are often propositioned by I johns. The Flick theater caters to homosVxual trade, and male prostitution has been noted in the area. Neighborhood47oys and men are also accosted on the street. A police officer testified that one residt had informed him that he found used condoms in his yard all the time. Both his teen4,3e son and daughter had been solicited on their way to school and to work. _ The Working Group heard testimony that in the Frogtown neighborhood, f immediately north of the University-Dale intersection in St. Paul, there has been a - change over time in the quality of life since the sexually oriented businesses moved into _ the area. The Working Group heard that the neighborhood used to be primarily middle class, did not have a high crime rate and did not have prostitution. St. Paul police officers testified that they believed the sexually oriented businesses caused neighborhood problems, particularly the increase in prostitution and other crime rates. Property values were suffering, since the presence of high crime rates made the area i -12- less desirable to people who would have the ability and inclination to improve their I _ homes. The Working Group made some inquiry to determine to what extent smaller cities — outside the Twin Cities Metropolitan area suffered adverse impacts of sexually oriented businesses. The Working Group was informed by the chiefs of police of Northfield and _ Owatonna that neither city had adult bookstores or similar sexually oriented businesses. Police chiefs in Rochester and Winona stated that sexually oriented — businesses in their communities operate in non-residential areas. In addition, there is no "concentration" problem. In Rochester, there are two facilities in a shopping mall — and a single bookstore in a depressed commercial/business neighborhood. The Winona store is located in a downtown business area. The police chiefs stated that • they had no evidence of increased crime rates in the area adjacent to these facilities. — They had no information as to the effect which these businesses might have on local property values. • — - Information presented to the Working Group indicates that community impacts of — sexually oriented businesses are •rimaril a function of two variables •roxi •% o residential areas and concentration. Property values are directly affected within a small 7 radius of the location of a sexually oriented business. Concentration may compound depression of property values and may lead to an increase in crime sufficient to change the quality of life and perceived des' bility of property in a neighborhood. : %• The evidence suggests that the impacts of sexually oriented businesses are — exacerbated when they are located near each other. Police officers testified to the AWorking Group, that "vice breeds vice." When sexually oriented businesses have _ multiple uses (i.e. theater, bookstore, nude dancing, peep booths), one building can 11 have the impact of several separate businesses. The Working Group heard testimony — that concentration of sexually oriented businesses creates a "war zone" which serves 11 as a magnet for people from other areas who "know" where to find prostitutes and sexual entertainment. The presence of bars in the immediate ' i i of sexually oriented businesses also compounds impacts upon the neighborhood. I -13- — as — The Attorney General's Working Group believes that regulatory strategies designed to reduce the concentration of sexually oriented businesses, insulate residential areas • i from them, and reduce the likelihood of associated criminal activity would constitute a rational response to evidence of the impacts which these businesses have upon local I communities. ff — 1 SEXUALLY ORIENTED BUSINESSES AND ORGANIZED CRiME I — infiltration of organized crime into sexually oriented businesses reinforces the need for prosecution of obscenity and requires specific regulatory or law enforcement tools. I _ The Working Group attempted to assess both the present and potential relationship between organized crime and sexually oriented businesses. I The Working Group heard testimony from a witness who had been prosecuting obscenity cases for the past thirteen years that many sexually oriented businesses have out-of-town absentee owners. If the manager of a local business is prosecuted on an I obscenity charge, his testimony may make it possible to pierce the corporate veil and identify the true owners. V The Working Group heard tes Tony that an organized crime entity may operate somewhat like a franchisor. In orer to stay in business, the local manager of a l _ sexually oriented business may have td\pay fees to organized crime. The makers and wholesalers of pornographic materials bre also likely to be involved with organized crime. The Working Group conducted additional research to assess the relationship between sexually oriented businesses and organized crime. The Working Group was informed by prosecutors of obscenity that there were many ways in which organized — crime entities could derive a benefit from sexually oriented businesses. There is a large profit margin in pornography. The presence of coin-operated peep booths provides an I — opportunity to launder money. Cash obtained from illegal activities, such as prostitution or narcotics, can be explained as the income of peep booths. Cash I _ income can also escape taxation, in violation of law. I • — -14- I - Although it is clear that organized crime is involved to some degree in the — pornography industry, various sources reach different conclusions as to the depth and . extent of this involvement. Part of the difference in assessment is based on differences in the way the term "organized crime" is defined. Authorities who restrict their definition of organized crime to the highly organized ethnic hierarchy known as La Cosa 1 Nostra (LCN) tend to find fewer links than those who define the term to include other — organized criminal enterprises. Where there has been intensive law enforcement and tprosecution, it is more likely that linkage between sexually oriented businesses and _ organized crime figures will be evident. The Working Group has adopted the definition of organized crime contained in Minnesota's Report of the Legislative Commission on Organized Crime (1975). The Working Group is concerned about the relation between sexually oriented businesses and any "organized criminal conspiracy of two or more persons that is continuous in rnature, involves activity generally crossing jurisdictional lines and results in third-party — profit." The threat from organized crime includes, but is not limited to involvement of tnational crime enterprises such as LCN. — Recent federal indictments of James G..;.Hafiz in Indiana for perjuryl/ and of _ Harry V. Mohney in Michigan for tax evasian suggest a possible connection between !I organized crime and a Minnesota pornography business. Hafiz, a Minnesota resident _ who is an agent of Beverly Theate . Inc., the company which operated the Faust Theater in St. Paul,2/ has been linked to Mohney, a major pornographer based in — Michigan. The indictments allege that' Mohney caused the incorporation of the company which operated the Faust, that a corporation owned by Mohney paid for improvements to the Faust and that Mohney is, in fact, the owner of numerous sexually — oriented businesses, including the Faust. (See United States v. Hafiz, Indictment, No. IP 88-102-CR (S.D. Ind., Sept. 15, 1988); United States v. Mohney, Indictment, No. _ 88-50062 (E.D. Mich. Sept. 9, 1988)). I - 1/ Hafiz was acquitted of the perjury charges. St. Paul Pioneer Press, Jan. 11, 1989, p. _ 10A. — 2/ The City of St. Paul bought out the Faust for $1.8 million, closing the entertainment Ilicomplex on March 7, 1989. • _ -15- — Mohney, in turn, has been linked with national organized crime enterprises. A 1977 I report of the United States Justice Department stated: It is believed that Harry V. Mohney of Durand, Michigan, is one of the largest dealers in pornography in the United States . . . He is alleged to have a close association with the LCN. Columbo and the LCN DeCavalcante, both of which are very influential in pornography in the eastern United States. In Michigan, Mohney is known to hire individuals with organized crime - I associations to manage his businesses. His businesses and corporations consist of 60 known adult bookstores, massage parlors, art theaters, adult drive-in movies, go-go type lounges and pornographic warehouses in Michioan, Indiana, Illinois, Kentucky, Tennessee, Wisconsin, Iowa, Ohio and California. He is involved in the financing and production of pornographic movies, magazines, books and newspapers. He also directs the importation and distribution of his own and other pornographic publications to retail and wholesale outlets "throughout the United States and Canada . . He. has a working relationship with DeCavalcante's representative Robert DiBernardo and has met with Vito Giacalone and Joseph Zerilli of the LCN Detroit. He has to cater to both to operate in Michigan. ' U.S. Justice Dep't, Orcanized Crime Involvement in Pornooraohy, reprinted in the • Attorney General's Comm'n on Pornograpl-ky (hereinafter "Pornography Commission"), 2 Final Report at 1229-30 (1986). 1 Organized crime has the potentia\\o infiltrate Minnesota's pornography industry. Evidence on a national level highlights the vulnerability of sexually oriented businesses _ to criminal control. A number of sources have reported that there is a connection . - between organized crime and the pornography industry. i The Pornography Commission reported that the Washington, D.C., Metropolitan Police Department "determined that traditional organized crime was substantially involved in and did essentially control much of the major pornography distribution in the United States during the years 1977 and 1978." 2 Final Report at 1044-45. The . I Washington, D.C., study "further concluded that the combination of the large amounts of money involved, the incredibly low priority obscenity enforcement had within police _ departments and prosecutors' offices in an area where manpower intensive I -16- J I investigations were essential for success, and the imposition of minimal fines and no — jail time upon random convictions resulted in a low risk and high profit endeavor for organized crime figures who became involved in pornography." Id. at 1045. — The FBI concluded in 1978: Information obtained . . . points out the vast control of the multi-million dollar pornography business in the United States by a few individuals with direct — connections with what is commonly known as the organized crime establishment in the United States, specifically, La Cosa Nostra . . . ' Information received from sources of this bureau indicates that pornography — is (a major) income maker for La Cosa Nostra in the United States behind gambling and narcotics. Although La Cosa Nostra does not physically oversee the day-to-day workings of the majority of pornography business in the United States, it is apparent that they have "agreements" with those involved in the pornography business in allowing these people to operate — independently by paying off members of organized crime for the privilege of being allowed to operate in certain geographical areas. Id. at 1046 (quoting Federal Bureau of Investication Report Regarding the Extent of Oroanized Crime Development in Pornooraohv, 6 (1978)). A brief survey of 59 FBI field offices conducted in 1985 found that about three-quarters of those offices could` of verify that traditional organized crime families were involved in the manufacture or�istribution of pornography. Several offices did, however, report some involvement by n-iembers and associates of organized crime. Id. — at 1046-47. Stanley Ronquest, Jr., a supervisory FBI special agent for traditional organized crime at FBI headquarters in Washington, D.C., was interviewed by Attorney General — staff. Ronquest stated that LCN has not been directly involved in the pornography industry in the last ten years. However, a former FBI agent told the Pornography — 3 Commission: In my opinion, based upon twenty-three years of experience in pornography — and obscenity investigations and study, it is practically impossible to be in the retail end of pornography industry (today) without dealing in some — r -17- — fashion with organized crime either the mafia or some other facet of non- . mafia never-the-less highly organized crime. I Id. at 1047-48. — Thomas Bohling of the Chicago Police Department Organized Crime Division, Vice Control Section, told the Pornography Commission that "it is the belief of state, federal I — and local law enforcement that the pornography industry is controlled by organized crime families. If they do not own the business outright, they most certainly extractI street tax from independent smut peddlers? Id. at 1048 (emphasis in original). — • The Pornography Commission stated that it had been advised by Los Angeles Police Chief Daryl F. Gates that "organized crime families from Chicago, New York, New Jersey and Florida are openly controlling and directing the major pornography operations in Los Angeles." Id. • — The Pornography Commission was told by Jimmy Fratianno, described by the Commission as a member of LCN, "that large profits have kept organized crime heavily I _ involved in the obscenity industry." Id. at 1052. Fratianno testified that "95% of the families are involved in one way or another in pornography. . . . It's too big. They just won't let it go? Id. at 1052-53. — I The Pornography Commission concluded that "organized crime in its traditional LCN forms and other forms exerts substantial influence and control over the obscenity industry. Though a number of significant producers and distributors are not members — of LCN families, all major producers and distributors of obscene material are highly organized and carry out illegal activities with a great deal of sophistication."' Id. at 1053. 1 The Pornography Commission reported that Michael George Thevis, reportedly I _ one of the largest pornographers in the United States during the 1970's was convicted in 1979 of RICO (Racketeer Influenced and Corrupt Organizations) violations including I _ murder, arson and extortion. The Commission also reported examples of other crimes associated with the pornography industry, including prostitution and other sexual -18- I I abuse, narcotics distribution, money laundering and tax violations, copyright violations • and fraud. Id. at 1056-65. Although the Pornography Commission report has been criticized for relying on the — testimony of unreliable informants in drawing its conclusions finding links between pornography and organized crime (See Scott, Book Reviews, 78 J. Crim. L. & — Criminology 1145, 1158-59 (1988)), its conclusions find additional support in recent state studies. — The California Department of Justice recently reported that: — California's primacy in the adult videotape industry is of law enforcement concern because the pornography business has been prone to organized — crime involvement. Immense profits can be realized through pornography operations, and until recently, making and distributing pornography involved — 1 a relatively low risk of prosecution. But more aggressive law enforcement efforts and turmoil within the pornography business has destabilized the smooth flow of easy money for some of its major operations . . . . — As long as control over pornography distribution is contested, and organized crime figures continue their involvement,in the business, the pornography _ industry will remain of interest to law eiforcement officials statewide. Bureau of Organized Crime and Criminal Intelligence, Department of Justice, State of California, Oroanized Crime in Ca!{fornia 1987: Annual Report to the California Legislature at 59-62 (1988). , — J The Pennsylvania Crime Commission similarly determined in a 1980 report that — most pornography stores examined were affiliated or owned by one of three men who had ties with "nationally known pornography figures who are members or associated of — :�! organized crime families." Pennsylvania Crime Commission, A Decade of Oroanized Crime: 1980 Report at 119. • For example, Reuben Sturman, a leading pornography industry figure based in 1 Cleveland, was reported by the FBI in 1978 to have built his empire with the assistance of LCN member DiBernardo. Federal Bureau of Investigation Report Regardinq the -19- • 19 -- — Extent of Organized Crime Involvement in Pornooraph (1978). Sturman, who reportedly controls half of the S8 billion United States pornography industry, was recently indicted by a federal grand jury in Las Vegas for racketeering violations and by a federal grand jury in Cleveland for income tax evasion and tax fraud. Newsweek, August 8, 1988, p. 3. Evidence of the vulnerability of sexually oriented businesses to organized crime involvement underscores the importance of criminal prosecution of these businesses when they engage in illegal activities, including distribution of obscenity and support of prostitution. Prosecution can increase the risk and reduce the profit margin of conducting illegal activities. It may also disclose organized crime association with local pornography businesses and increase the costs of criminal enterprise in Minnesota. In addition to prosecution, forfeiture of property used in the illegal activities related to sexually oriented businesses can cut deeply into profits. Regulation•to permit license _ revocation for conviction of subsequent crimes may also expose and increase control • over criminal enterprises related to sexually oriented businesses. PROSECUTORIAL AND REGULATORY ALTERNATIVES The regulation of many sexuallybriented businesses, like other businesses dealing in activity with an expressive comporiert, is circumscribed by the First Amendment of the United States Constitution.3/ Nonetheless, the First Amendment does not impose _ a barrier to the prosecution of obscenity, which is not protected by the First Amendment, or to reasonable regulation of sexually oriented businesses if the 3/ The First Amendment provides: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the p►tss, or the right of the people peaceably _ to assemble, or to petition the government for a redress of grievances. The constitutional guarantee of freedom of speech, often the basis for challenges to regulation of sexually oriented businesses, restricts state as well as federal actions. See, etc_., Fiske v. Kansas, 274 U.S. 380, 47 S. Ct. 655 (1927). -20- i ; ' : • • .. • , — 1 • regulation is not designed to suppress the content of expressive activity and is I - sufficiently tailored to accomplish the regulatory purpose. • — i 1 The Working Group believes that communities have more prosecutorial and _ regulatory opportunities than theymay currently recognize. The purpose of this section of the Report is to identify and recommend enforcement and regulatory opportunities. 1 Of course, each community must decide on its own how to balance its limited resources and the wide variety of competing demands for such resources. II. OBSCENITY PROSECUTION — IObscene material is not protected by the First Amendment. Miller v. California, . _ 413 U.S. 15, 93 S. Ct. 2607 (1973). The sale or distribution of obscene material in IMinnesota is a criminal offense. The penalty was recently increased .to up to one year _ in jail and a $3,000 fine for a first offense, and up to two years in jail and a $10,000 fine Ifor a second or subsequent offense within five years. Minn. Stat. § 617.241, subd. 3 _ (1988).4/ IThe Working Group believes that M'�nesota's obscenity statutes are adequate to prosecuteI and penalize the sale and distribution of obscene materials. However, historically, widespread obscenity ptosecution has not occurred. The Working Group believes this is not because the sale or distribution of obscene _ publications in Minnesota is rare, but because prosecutors have been reluctant to bring Iobscenity charges, because of limited resources, difficulties faced when prosecuting — obscenity, and because obscenity has historically been considered a victimless crime. • I. 4/ The prior penalty was a fine only -- up to $10,000 for a first offense and up to — $20,000 for a second or subsequent offense. Minn. Stat. & 617.241, subd. 3 (1986). i_ Obscenity arrests are so infrequent that incidents involving possible violations of section 617.241 are not separately compiled by the Minnesota Bureau of Criminal — Comprehension. See Bureau of Criminal A••rehension 1987 Minnesota Annual 1 Report on Crime, Tssinq hi •ren an. :ureau o rumina •ppre ension Acltvilies. . -21- — Obscenity, however, should no longer be viewed as a victimless crime.5/ There is mounting evidence that sexually oriented businesses are, as described earlier in this I — report, often associated with increases in crime rates and a decline in the quality of life of neighborhoods in which they are located. Further, as discussed previously, when 1 there is no prosecution of obscenity, large cash profits make pornographic operations very attractive to members of organized crime. The Working Group thus believes that prosecution of obscenity, particularly cases involving children, violence or bestiality, should assume a higher priority for law enforcement officials. • — In addition, many of the difficulties faced when prosecuting obscenity can be " r addressed by adequate training and assistance. In order to prove that material is I. — obscene, a prosecutor must prove: _ (i) that the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest in sex; . (ii) that the work depicts sexual conduct . . . in a patently offensive I manner; and (iii) that the work, taken as a yyhole, lacks serious literary, artistic, political, or scientific value. • _ Minn. Stat. § 617.241, subd. 1(G)(i-iii)11988). This statutory standard was drawn to be I — consistent with constitutional standards'set forth in Miller, supra. •I, 5/ Two b lue ribbon commissions have reached different conclusions regarding the harmfulness of sexually explicit material to individuals. A presidential Commission — on Obscenity and Pornography concluded in 1970 that there was no evidence of "social or individual harms" caused by sexually explicit materials and, therefore. "federal, slate and local legislation prohibiting the sale, exhibition, or distribution ci — sexual materials to consulting adults should be repealed." The Report of the Comm'n on Obscenity and Pornooraohy at 57-8 (Bantam Paperback ed. 1970). 1 However, in 1986, the Attorney General's Commission on Pornography concluded _ that "sexually violent materials . . . bear . . . a causal relationship to antisocial acts of sexual violence . [and that) the evidence supports the conclusion that substantial exposure to [non-violent) degrading material increases the likelihood for ` an individual [to] . . . commit an act of sexual violence or sexual coercion." Attorney General's Comm'n on Pornography, 1 Final Report at 326, 333 (1986). ■ -22- I prosecutors• face a number of hazards in prosecuting obscenity. They To be sure, Th _ include inadequate training in this specialized area of law, attempts by defense attorneys to remove jurors who find pornography offensive, the offering into evidence of polls and surveys through expert testimony to prove tolerant community standards, efforts to guide jurors with jury instructions favorable to the defense, and discouragement with unsuccessful prosecutions. — But the hazards can be overcome. Alan E. Sears, former executive director of the — U.S. Attorney General's Commission on Pornography has stated: • Prosecutors can successfully obtain obscenity convictions in virtually any jurisdiction in the United States. In order to obtain a conviction, it is incumbent upon a prosecutor to prepare well, know the law, not fall into the — "one case syndrome" trap, obtain a representative jury through proper voir dire, keep the focus of the trial on the unlawful conduct of the defendant, and obtain legally sound instructions. Sears, "How To Lose A Pornography Case," The CDL Reporter (n.d.). The Working Group heard testimony from prosecutors who have pursued obscenity cases nationally regarding ejeptive ways to prosecute obscenity cases. Materials can be bought or rented, rather than seized under warrant. In the absence of survey data, community standards c�n be left to the wisdom of the jury. In that case, experts should be prepared to testify if;the defense attempts to make a statistical case that the material is not obscene. Prosecution of obscenity is also likely to be most effective if initial prosecutions focus on materials which are patently offensive to the community, such as those involvino children, violence or beastiality. The experience of other cities has demonstrated that vigorous and sustained — �� enforcement of obscenity statutes can sharply reduce or virtually eliminate sexually oriented businesses. Cincinnati, Omaha, Atlanta, Charlotte, Indianapolis and Fort Lauderdale were cited to the Working Group as examples of cities which have -23- successful programs of obscenity prosecution.6/ The Working Group encourages prosecutors to take advantage of increasing training opportunities and other assistance I for obscenity prosecutions and to reassess the desirability of increased enforcement. The Working Group is pleased to note that county attorneys and law enforcement . groups in Minnesota have recently held forums and seminars on obscenity law enforcement and prosecution. The U.S. Justice Department's National Obscenity Enforcement Unit offers assistance to local prosecutors, including sample pleadings, indictments, search warrants, motions, responses and trial memoranda.7/ RECOMMENDATIONS 1. City and county attorneys' offices in the Twin Cities metropolitan area should designate a prosecutor to pursue obscenity prosecutions i — " and support that prosecutor with specialized training. • 2. The Legislature should consider funding a pilot program to demonstrate the efficacy of obscenity prosecution and should encourage the pooling of resources between urban and suburban prosecuting offices by making such cooperation a condition of receiving any such grant funds. �• , - � I 6/ Memorandum to Jim Bellus, executive assistant to St. Paul Mayor George Latimer (prepared by St. Paul Department of Planning and Economic Development) (July 5, 1988); see also Waters, The Squeeze on Sleaze," Newsweek, Feb. 1, 1988, at 45 ( After more than 10 years of levying heavy fines and making arrests, Atlanta has won national renown as 'the city that cleaned up pornography.'"). 7/ The Address of the National Obscenity Enforcement Unit is U.S. Justice Departurent 10th & Pennsylvania Ave. N.W., Room 2216, Washington, D.C. 20530. i Y Its telephone number is 202-633-5780. Assistance is also available from Citizens for Decency through Law, Inc., 2845 E. Camelback Rd., Suite 740, Phoenix, AZ 85016. It is the publisher of "The Preparation and Trial of an Obscenity Case: A Guide for the Prosecuting Attorney." Its telephone number is 602-381-1322. The National Obscenity Law Center, another private organization, is located at 475 Riverside Drive, Suite 236, New York, N.Y. 10115. It publishes an Obscenity Law Bulletin and the "Handbook on the Prosecution of Obscenity Cases." Its telephone number is - 212-870-3216. 1 -24- • _ 3. The Attorney General should provide Informational resources for city and county attorneys who prosecute obscenity crimes. • - ' 4. Obscenity prosecutions should concentrate on cases that most — flagrantly offend community standards. II. OTHER LEGAL REMEDIES A. RICO/FORFEITURE In addition to traditional criminal prosecutions, use of RICO statutes and criminal and civil forfeiture actions may also prove to be successful against obscenity offenders. By attacking the criminal organization and the profits of illegal activity, such actions can provide a strong disincentive to the establishment and operation of sexually oriented — businesses. For example, the federal government and a number of the twenty-eight states which have enacted racketeer influenced and corrupt organization (RICO) --- statutes include obscenity offenses as predicate crimes. Generally speaking, to violate a RICO statute, a person must acquire or maintain an interest in or control of an — enterprise, or must conduct the affairs of an enterprise through a "pattern of criminal activity." That pattern of criminal activity may include obscenity violations, which in turn can expose violators to increased fine and penalties as well as forfeiture of all property acquired or used in the course of a 141CO violation. These statutes generally enable prosecutors to obtain either criminal or civil forfeiture orders to seize assets and may also be used to obtain injunctive relief to divest repeat offenders of financial interests in sexually oriented businesses. See 18 U.S.C. §§ 1961-68 (West Supp. 1968). RICO statutes may be particularly effective in dismantling businesses dominated by organized crime, but they may be applied against other targets as well. — The Working Group believes that Minnesota should enact a RICO-like statute that would encompass increased penalties for using a pattern of criminal obscenity acts J to conduct the affairs of a business entity. Provisions authorizing the seizure of assets for obscenity violations should be considered, but the limitations imposed by the First Amendment must be taken into account. -25- It has been argued that a RICO or forfeiture statute based on obscenity crime violations threatens to "chill protected speech" because it would permit prosecutors to seize non-obscene materials from distributors convicted of violating the obscenity statute. American Civil Liberties Union, Polluting The Censorship Debate: A Summary And Critique Of The Final Report Of The Attorney General's Commission On Pornography at 116-117 (1986). However, a narrow majority of the United States Supreme Court recently held that there is no constitutional bar to a state's inclusion of substantive obscenity violations among the predicate offenses for its RICO statute. Sappenfield v. Indiana, 57 U.S.LW. 4180, 4183-4184 (February 21, 1989). The Court recognized that "any form of criminal obscenity statute applicable to a bookseller will induce some tendency to self-censorship and have some inhibitory effect on the dissemination of material not obscene." Id. at 4184.. But the Court ruled that, "the mere assertion of somepossible self-censorship resulting from a statute is not enough to render an anti-obscenity law unconstitutional under our precedent." Id. The Court specifically upheld RICO provisions which increase penalties where there is a pattern of multiple violations of obscenity laws. However, in a companion case, the Court also invalidated a pretrial seizure of a bookstore and its contents after only a preliminary finding of "probable cause" to believe that a RICO violation had oeRurred. Fort Wayne Books, Inc. v. Indiana, 57 U.S.L.W. 4180, 4184-4185 (February1, 1989). The Court explained there is a rebuttable presumption that expressi'e materials are protected by the First Amendment. That presumption is not rebutted until the claimed justification for seizure of materials, the elements of a RICO violation, are proved in an adversary proceeding. Id. at 4185. _ The Court did not specifically reach the fundamental question of whether seizure of the assets of a sexually oriented business such as a bookstore is constitutionally permissible once a RICO violation is proved. The Court explained: • [F]or the purposes of disposing of this case, we assume without deciding that bookstores and their contents are forfeitable (like other property i -26- such as a bank account or yacht) when it is proved that these items are _ property actually used in, or derived from, a pattern of violations of the state's • obscenity laws. . Id. at 4185. The Working Group believes that a RICO statute which provided for seizure of the contents of a .sexually oriented business upon proof of RICO violations would have the potential to significantly curtail the distribution of obscene materials. Although Minnesota does not have a RICO statute, it does have a forfeiture statute — permitting the seizure of money and property which are the proceeds of designated Ifelony offenses.• Minn. Stat. § 609.5312 (1988). But, this statute does not permit seizure — of property related to commission of the offenses most likely to be associated with I sexually oriented businesses. Obscenity crimes are not among the offenses which _ justify forfeiture. Although solicitation or inducement of a person under age 13 (Minn. Stat. § 609.322, subd. 1) or between the ages of 16 and 18 to practice prostitution — (Minn. Stat. § 609.322, subd. 2) are included among the offenses which could justify I seizure of property, many crimes involving prostitution are outside the reach of the — present Minnesota forfeiture law. IThe following crimes are not included among the crimes which can justify seizure — of property and profits: solicitation, indu`aemept, or promotion of a person between the 1 ages of 13 and 16 to practice prostitution (Minn. Stat. § 609.322, subd. 1A); solicitation, — inducement or promotion of a per�o. n 18 years of age or older to practice prostitution (Minn. Stat. § 609.322, subd. 3); receiving profit derived from prostitution (Minn. Stat. _ § 609.323); owning, operating or managing a "disorderly house," in which conduct habitually occurs in violation of laws pertaining to liquor, gambling, controlled substances or prostitution (Minn. Stat. § 609.33). IAlthough its reach would be much more limited, the legislature should also — consider providing for forfeiture of property used to commit an obscenity offense or ewhich represents the proceeds of obscenity offenses. Under the holding in Fort Wayne — Books, inc. v. Indiana, such forfeiture could not take place, if at all, until it was proved gthat the underlying obscenity crimes had been committed. — i I • -27- I — There are no comparable constitutional issues raised by enacting or enforcement of forfeiture statutes based on violations of prostitution, gambling, or liquor laws. The legislature may require sexually oriented businesses which violate these laws to forfeit their profits. The Working Group believes that such an expansion of forfeiture laws I - would give prosecutors greater leveraoe to control the operation of those businesses which pose the greatest danger to the community. - I RECOMMENDATIONS 1. The legislature should amend the present forfeiture statute to include as grounds for forfeiture all felonies and gross misdemeanors - pertaining to solicitation, Inducement, promotion or receiving profit from - prostitution and operation of a "disorderly house." 2. The legislature should consider the -potential for a RICO-like statute with an obscenity predicate. 1 B. NUISANCE INJUNCTIONS � • Minnesota law enforcement athorities may obtain an injunction and close down operations when a facility constitut s:.a public nuisance. A public nuisance exists when a business repeatedly violates laws pertaining to prostitution, gambling or keeping a "disorderly house: The Minnesota public nuisance IaW permits a court to order a building to be closed for one year. Minn. Stat. 6S 617.80-.87 (1988). Nuisance injunctions to close down sexually oriented businesses which repeatedly I _ violate laws pertaining to prosecution, gambling or disorderly conduct are potentially powerful regulatory devices. The fact that a building in which prosecution or other offenses occur houses a sexually oriented business does not shield the facility from application of nuisance law based on such offenses. Arcara v. Cloud Books, Inc., 478 U.S. 697, 106 S. Ct. 3172 (1986) (First Amendment does not shield adult bookstore I • -28- I . . -. . - f from application of New York State nuisance law designed in part to close places of — prostitution). Although the Working Group believes that nuisance injunctions with an obscenity predicate would be effective in controlling sexually oriented businesses, such provisions would probably be unconstitutional under current U.S. Supreme Court — decisions. Six Supreme Court justices joined in the Arcara result, but two of them -- Justices O'Connor and Stevens — concurred with these words of caution: • — If, however, a city were to use a nuisance statute as a pretext for closing _ down a book store because it sold indecent books or because of the perceived secondary effects of having a purveyor of such books in the neighborhood, the case would clearly implicate First Amendment concerns _ and require analysis under the appropriate First Amendment standard of review. Because there is no suggestion in the record or. opinion below of such pretextual use of the New York nuisance provision in this cae, I concur — in the Court's opinion and judgment. Arcara, suora, 478 U.S. at 708, 106 S. Ct. at 3178. i . • In an earlier case, Vance v. Universal,Arriusement, 445 U.S. 308, 100 S. Ct. 1156 — (1980), the Court ruled unconstitutional a +exas public nuisance statute authorizing the closing of a building for a year if th' building is used "habitual[Iy)" for the "commercial _ exhibition of obscene material." Id. Gf-310 n.2, 100 S. Cl. at 1158 n.2. The Court's recent holdings in Sappen field and Fort Wayne Books, Inc. give no indication that the Court would now look more favorably upon an injunction to close I down a facility which sold obscene materials. The Court assumed without deciding iii that forfeiture of bookstore assets could be constitutional in a RICO case. But, in making this assumption, the Court distinguished forfeiture of assets under RICO from a general restraint on presumptively protected speech. The court approved the 1 reasoning of the Indiana Supreme Court that, "The remedy of forfeiture is intended not to restrain the future distribution of presumptively protected speech but rather to idisgorge assets acquired through racketeering activity." Fort Wayne Books, inc. at _ 4185. The Court assumed that RICO provisions could be upheld on the basis that r- -29- -29- — I 4 "adding obscenity-law violations to the list of RICO predicate crimes was not a mere ruse to sidestep the First Amendment." Id. Without the relationship to proceeds of crime, a remedy which closed a facility for obscenity violations would be far less likely to withstand constitutional scrutiny. RECOMMENDATIONS I 1. Prosecutors should use the -public nuisance statute to enjoin j operations of sexually oriented businesses which repeatedly violate laws pertaining to prostitution, gambling or operating a disorderly I house. • I III. ZONING Zoning ordinances can be adopted to regulate the location of sexually oriented businesses without violating the First Amendment. Such ordinances can be designed I to disperse or concentrate sexually oriented businesses, to keep them at designated distances from specific buildings or area ,such as churches, schools and residential neighborhoods or to restrict buildings to to single sexually oriented usage. Because zoning is an important regulatory'�{ooI when properly enacted, the Working .Group believes a careful explanation of the law and a review of potential problems in drafting zoning ordinances may be helpful toy,communities considering zoning to regulate sexually oriented businesses. . 4 C -30- I • • ' • A. Supreme Court Decisions The U.S. Supreme Court upheld the validity of municipal adult entertainment — zoning regulations in Youno v. American Mini Theaters. Inc., 427 U.S. 50, 96 S.Ct. 2440 (1976), and City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 106 S.Ct. 926 (1986).8/ — In Young, the Court upheld the validity of Detroit ordinances prohibiting the — ' operation of theaters showing sexually explicit "adult movies" within 1,000 feet of any two other adult establishments.9/ The ordinances authorized a waiver of the 1,000-foot — restriction if a proposed use would not be contrary to the public interest and/or other factors were satisfied. Youna, supra, 427 U.S. at 54 n.7, 96 S.Ct. at 2444 n.7. The ordinances were supported by urban planners and real estate experts who testified that — concentration of adult-type establishments "tends to attract an undesirable quantity • and quality of transients, adversely affects property values, causes an increase in — crime, especially prostitution, and encourages residents and businesses to move elsewhere." Id. at 55, 96 S.Ct. at 2445. A "myriad" of locations were left available for adult establishments outside the forbidden 1,000-foot distance zone, and no existing establishments were affected. Id. at 71 n.35, 96 S.Ct. at 2453 n.35. — i Writing for a plurality of four, Justicec'Stevens upheld the zoning ordinance as a reasonable regulation of the placeNwhere adult films may be shown because (1) there was a factual basis for the city's corvclusion that the ordinance wQulcLpte-vent-blight; (2) the ordinance was drr_e_c1Ed at preve in'secondary effects" oLad '11 establishment — concentration rather than protecting citizens from unwanted "offensive" spm; (3) the ofdi ce did not greatly restrict access to lawful speech, and (4) "the cis must be — allowed a reasonable opportunity to experiment with solutions to admittedly serious problems." Id. at 63 n.18, 71 nn.34, 35, 96 S. Ct. at 2448-49 n.18, 2452-53 nn.34, 35. 8/ The only reported Minnesota court case reviewing an adult entertainment zoning — ordinance is City of St. Paul v. Carlone, 419 N.W.2d 129 (Minn. Ct. App. 1988) (upholding facial constitutionality of St. Paul ordinance). 9/ The ordinances also prohibited the location of an adult theaters within 500 feet of a residential area, but this provision was invalidated by the district court, and that decision was not appealed. Youna v. American Mini Theaters. Inc., 427 U.S. 50, 52 — n.2, 96 S.Ct. 24-40, 2444 n.2 (1976). 3 -31- Justice Stevens did not expressly describe the standard he had used, but it was 1 — clear that the plurality would afford non-obscene sexually explicit speech lesser First Amendment protection than other categories of speech. However, four dissenters and I — one concurring justice concluded that the degree of protection afforded speech by the First Amendment does not vary with the social value ascribed to that speech. In his E concurring opinion, Justice Powell stated that the four-part test of United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679 (1968), should apply. Powell explained: . Under that test, a governmental regulation is sufficiently justified, despite its — 1ft incidental impar on First Amendment interests, "if it is within the 7 constitutional power of the Government;--if- it furthers an important or _ �-�e substantial governmental interest; if the governmental interest is unrelated to E- the suppression of free expression and the incidental restriction on . . . First-Arnendment freedom is no greater than is essential to the furtherance of — that interest." [-_-_ 427 U.S. at 79-80, 96 S.Ct. at 2457 (citation omitted), (Powell, J., concurring). 11 Perhaps because Justice Stevens' plurality opinion did not offer a clearly — articulated standard of review, post-Yicung courts often applied the O'Brien test advocated by Justice Powell in lois concurring opinion. Many ordinances regulating — sexually oriented businesses wereinvalidated under the O'Brien test. See R.M. Stein, IL Regulation of Adult Businesses Thrbuoh Zonina After Renton, 18 Pac. L.J. 351, 360 _ (1987) ("consistently invalidated"); S.A. Bender, Regulating Pornography Through Zoning: Can We 'Clean Uo' Honolulu? 8 U. Haw. L. Rev. 75, 105 (1986) (ordinances — • upheld in only about half the cases). El Applying Youna, the Eighth Circuit Court of Appeals invalidated a zoning ordinance adopted by the city of Minneapolis. Alexander v. City of Minneapolis, 698 F.2d 936 (8th Cir. 1983). In Alexander, the challenged ordinance had three major restrictions on II sexually oriented businesses: distancing from specified uses, prevention of concentration and amortization. It prohibited a sexually oriented business from — operating within 500 feet of districts zoned for residential or office-residences, a church, - F . -32- - - C -state-licensed day care facility and certain public schools. It forbade an adults-only facility from operating within 5D0 feet of any other adults-only facility. Finally, the — ordinance required existing sexually oriented entertainment establishments to conform to its provisions by moving to a new location, if necessary, within four years. — The Eighth Circuit ruled that the Minneapolis ordinance created restrictions too — severe to be upheld under the Young decision. It would have required all five of the city's sexually oriented theaters and between seven and nine of the city's ten sexually oriented bookstores to relocate and would have required these facilities to compete with another 18 adult-type establishments (saunas, massage parlors and "rap" parlors) for a maximum of 12 relocation sites. The effective result of enforcing the ordinance — would be a substantial reduction in the number of adult bookstores and theaters, and no new adult bookstores or theaters would be able to open, the Court concluded. — Alexander, supra, 698 F.2d at 938. in Renton, supra, the United States Supreme Court adopted a clearer standard under which regulation of sexually oriented businesses could be tested and upheld. — The Court upheld an ordinance prohibiting adult movie theaters from locating within 1 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park or - school. A` Justice Rehnquist, writing for a :ourt majority that included Justices Stevens and — k Powell, stated that the Renton ordinance did not ban adult theaters altogether and.that, [ therefore, it was "properly analyzed as a form of time, place and manner regulation." — II Id. at 46, 106 S.Ct. at 928. When time, place and manner regulations are •'con�ent- ne neutral" and not enacted "for the pur ose of restricting speech on the basis of its _ content," they are "acceptable so long as they are designed to serve a substantial governmental mental interest and do not unreasonably limit alternative avenues of — communication," Rehnquist staled. Id. He found the Renton ordinance to be content- neutral becauseitwas not aimed at the content of films shown at adult theaters. - Rather, the city's "predominate concerns _were with the secondary effects of the Jtheaters. Id. at 47, 106 S.Ct. at 929 (emphasis in original). Once a time, p ace or manner regulation is determined to be content-neutral, "(t)he appropriate inquiry . . . is — whether the . . . ordinance is designed to serve a substantial governmental interest and i. — -33- _ I • . . . L allows for reasonable avenues of communication," Rehnquist wrote for the Court. Id. at • 50, 106 S.Ct. at 930. • The Supreme Court found that Renton's "interest in preserving the quality of urban _ life" is a "vital" governmental interest. The substantialityof that interest was in no way diminished by the fact that Renton "relied heavily" on studies of the secondary effects of adult entertainment establishments by Seattle and the experiences of other cities, - Rehnquist added. Id. at 51, 106 S.Ct. at 930-31. • The First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so Jong as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses. That was the case here. Nor is our holding affected by the fact that Seattle ultimately chose a different method of adult theater zoning than that chosen by Renton, since Seattle's choice of a different remedy to combat the secondary effects of adult theaters does not call into question either Seattle's identification of those secondary effects or the relevance of • Seattle's experience to Renton. Id. at 51-52, 106 S.Ct. at 931. Rehnquist's inquiry then addressed" the means chosen to further Renton's substantial interest and inquired icto whether the Renton ordinance was sufficiently "narrowly tailored." • His comments on Renton's mean to further its substantial interest suggest that municipalities have a wide latitude in enacting content-neutral ordinances aimed at the secondary effects of adult-entertainment establishments. He quoted the Young plurality for the proposition that: It is not our function to appraise the wisdom of [the city's] decision to require adult theaters to be separated rather than concentrated in the same areas. . . . [T]he city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems. Id. at 52, 106 S.Ct. at 931 (quoting Youna, supra, 427 U.S. at 71, 96 S.Ct. at 2453). ILI -34- t • • • As to the "narrowly tailored" requirement, Rehnquist found that the Renton ordinance only affected theaters producing unwanted secondary effects and, therefore, was satisfactory. Id. — The second prong of Renton's "time, place, manner" inquiry -- the availability of — alternative avenues of communication — was satisfied by the district court's finding that 520 acres of land, or more than five percent of Renton, were left available for adult- _ entertainment uses, even though some of that developed area was already occupied and the undeveloped land was not available for sale or lease. A majority of the Court found: That [adult theater owners] must fend for themselves in the real estate market, on an equal footing with other prospective purchasers and lessees, does not give rise to a First Amendment violation. . . . In our view, the First Amendment requires only that Renton refrain from effectively denying [adult theater owners] a reasonable opportunity to open and operate an adult theater within the city, and the ordinance before us easily meets this — requirement. Id. at 54, 106 S.Ct. at 932. B. Standards and Need for Lena! Zoning • Unlike Youno, the Renton case spells out the standards by which zoning of sexually oriented businesses should be tested. Renton and several lower court decisions rendered in its wake suogest that the two most critical areas by which the ordinances will be judged are 1) whether there is evidence that ordinances 1 9 o d antes were enacted to address secondary impacts on the commurnfy, arid 2) whether there are — enough locations still available for sexually.oriented businesses so that zoning is not just a pretext to eliminate pornographic speech.101 J10/ Of 11 recent post-Renton adult-entertainment zoning decisions by federal courts, — five invalidated or inances, three upheld ordinances and three ordered a remand to district court for further proceedings. Zoning ordinances were struck in Avalon Cinema Corp. v. Thompson, 667 F.2d 659 (8th Cir. 1987)( city council failed tomer — (Footnote 10 Continued on Next Page) -2 -35- — .. _ . . L . . ._ . . This section first describes some of the legal considerations which communities must keep in mind in drafting zoning ordinances for sexually oriented businesses. .. Then, some suggestions are provided, based on evidence reviewed by the Working Group, of types of zoning which can be enacted to reduce the secondary effects of ti — sexually oriented businesses. V 1. Documentation to Support Zoning Ordinances IV , Sexually oriented speech which is not obscene cannot be restricted on the basis of - its content without running afoul of the First Amendment. The justification for regulating 1 sexually oriented businesses is based on proof that the zoning is needed to reduce in t secondary effects of the businesses on the community. it Since Renton, a number of adult entertainment zoning ordinances have been .i — invalidated for failure of the enacting body to document the need for zoning regulations. , Thus, one court invalidated a zoning ordinance because there was "very little, if any, — evidence of the secondary effects of adult'bookstores . . . before the City Council . . . ." A 1 al (Footnote 10 Continued from Previous Page) evidence suggesting neighborfi'Qed decline would result); Tollis. inc. v. San Ifi — Bernadino County, 827 F.2d 1329 (9th Cir. 1987) (no evidence presented ' to legislative body of secondary harmful effects); Ebel v. Corona, 767 F.2d 635 (9th Cir. 1985) (lack of effective alternative locations); 11126 Baltimore �u}fid rd 508) v. Prince George's County of Marland, 6 Supp. — (insufficient evidence of secondary effects presented to• legislative body; special exception provisions grant excessive discretionary authority to zoning 3official); fr and Peoples Taos. Inc. v. Jackson County Legislature, 636 F. Supp. (W _ Mo. 1986) (improper legislative purpose to prevent continued operation of adult- ;f entertainment establishment). Zoning ordinances were upheld in SD.). Inc. v. City of Houston, 837 F.2d 1268 (5th Cir. 1988)• FW/PBS Inc. v. City of Dallas, 837 F IB ri — 1298 (5th Cir. 1988); and S & G News. Inc. v. City of Southoate, 638 F.Supp . 1060 (E.D. Mich. 1986), aff'd without Qublisned opinion, 819 F.2d 1142 (6th Cir. 1987). Remands were ordered in Christy v. City of Annl Arbor, 824aF.2dfo489 (6th Cir. s 1987), cert. denied, U.S. , 108 S. Ct. 1013 (1988)(remand of excessive restrictions); International Food & Beveraoe Systems v. City of Fort Lauderdale, 794 F.2d 1520 (11th Cir. 1986) (remand for reconsideration in light of Renton, supra; nude bar ordinance), and Walnut Properties, Inc. v. City of Whittier, — 808 P 2 1331 (9th Cir. 1986) (remand, in part, for determination of land availability). f�. -36- — I . 11126 Baltimore Boulevard, supra, 684 F. Supp. at 895; see also Tollis v. San Bernadino County, 827 F.2d 1329, 1333 (9th Cir. 1987) (ordinance construed to prohibit . _ single showing of adult movie in zoned area; invalidated for failure to present evidence °t of secondary effects of single showing); but see Thames Enterprises v. City of St. Louis, — . 851 F.2d 199, 201-02 (8th Cir. 1988) (observations by legislator of secondary effects 11sufficient). - 0 I I On the other hand, it is not necessary for each municipality to conduct research independent of that already generated by other cities. The Renton court held that . — evidence of the need for zoning of sexually oriented businesses can be provided by fIstudies from other cities "so long as whatever evidence the city relies upon is _ reasonably believed to be relevant to the problem that the city addresses." id. at 51, . 106 S.Ct. at 931. See also SDJ, Inc. v. City of Houston, 837 F.2d 1268, 1274 (5th Cir. _ 1988) (public testimony from experts, supporters and opponents and consideration of Istudies by Detroit, Boston, Dallas and Los Angeles sufficient evidence of legitimate purpose). The first section of this report summarizes evidence from various cities — 1 documenting the secondary effects of sexually priented businesses. Following Renton, it is intended that local communities will rclake use of this evidence in the course of — li assembling support for reasonable regulation of sexually oriented businesses. ;\ 2. Availability of Locations for Sexua)ly Oriented Businesses Courts also evaluate whether zoning of sexually oriented businesses is merely a pretext for prohibition by reviewing the alternative locations which remain for a sexually — Ioriented business to operate under the zoning scheme. A municipality must "refrain from effectively denying . . . a reasonable opportunity to open and operate" a sexually — ii oriented business. Renton, supra, 475 U.S. at 54, 106 S. Ct. at 932. — IAccess may be regarded as unduly restricted if adult entertainment zones are unreasonably small in area or if the number of locations is unreasonably few. There is _ no set amount of land or number of locations constitutionally required. The Renton 1 -37- • Is _ . . _ • court found that 520 acres of "accessible real estate," including land "criss-crossed by .. freeways" -- more than five percent of the entire land area in Renton -- was sufficient. I 475 U.S. at 53, 106 S.Ct. at 932. The Young court found the availability of "myriad" locations sufficient. 427 U.S. at 72 n.35, 96 S.Ct. at 2453 n.35. Whether .058 square miles constituting .23 of 1 percent of the land area within the city's centralE business zone is sufficient is not clear. See Alexander v. The Cityof Minneapolis (Alexander II), No. 3-88-808, slip op. at 22 (D. Minn. May 22, 1989) (less — than 1% of land area could be valid if "ample actual opportunities" for relocation exist); Christy v. City of Ann Arbor, 824 F.2d 489, 490, 493 (6th Cir. 1987) (remanding for a _ determination of excessive restriction). See also 11126 Baltimore Boulevard, Inc. v. 11-- Prince Georoe's County of Maryland, 684 F. Supp. 884 (D. Md. 1988) (20 alternative locations sufficient); Alexander v. City of Minneapolis, 698 F.2d 936, 939 n.7 (8th Cir. a--- 1983) (pre-Renton; 12 relocation sites for at least 28 existingadult establishments not sufficient). . The sufficiency of sites available for adult entertainment uses may be measured in — relation to a number of factors. See, e.o., Alexander II, supra, slip op. at 22-23 L (insufficient if relocation site owners refuse to sell or lease); international Food & _ Beverace Systems, Inc., 794 F.2d 1520, 1526 111th Cir. 1986) (suggesting number of 1 sites should be determined by reference to community needs, incidence of 4 _ establishments in other cities, goals b. city plan); Basiardanes v. City of Galveston, 682 F.2d 1203, 1209 (5th Cir. 1962) (preenton case striking zoning regulation restricting adult theaters to industrial areas that were "largely a patchwork of swamps, warehouses, and railroad tracks . . . . lack[ing) access roads and retail establishments"). _ C-- However, the fact that land zoned for adult establishments is already occupied or — not currently for sale or lease will not invalidate a zoning ordinance. Renton, supra, 475 U.S. at 53-54, 106 S.Ct. at 932; but see, Alexander II, supra, slip op. at 22-23 (reasonable relocation opportunity absent where owners refuse to sell or rent). There is . i no requirement that it be economically advantageous for a sexually oriented business to locate in the areas permitted by law. -38- - — . . 3: Distance Requirements _-J. = Another factor that may be examined by some courts is the distance requirement established by an adult entertainment zoning ordinance. In SDJ, Inc. v. Houston, 837 = F.2d 1268 (5th Cir. 1988), the Court was asked to invalidate a 750-foot distancing _I ''" requirement on the ground that the city had not proved that 750 feet, as opposed to — some other distance, was necessary to serve the city's interest. J . The Court found that an adult entertainment zoning ordinance is "sufficiently well tailored if it effectively promotes the government's stated interest" and declined to _ "second-guess" the city council. Houston, supra, 837 F.2d at 1276. Courts have sustained both requirements that sexually oriented businesses be located at specified distances from each other, see Young, supra, (upholding distance requirement of 1000 feet between sexually oriented businesses), and requirements that sexually oriented businesses be located at fixed distances from other sensitive uses, see Renton, supra, (upholding distance requirement of 1000 feet between sexually — oriented businesses and residential zones, single-or-multiple family dwellings, churches, parks or schools). _ a5 The Working Group heard testimony that when an ordinance establishes distances _ between sexually oriented uses, ark\additional regulation may be needed to prevent operators of these businesses to defeat the intent of the regulation by concentrating _ sexually oriented businesses of various 'types under one roof, as in a sexually oriented mini-mall. The city of St. Paul has adopted an ordinance preventing more than one rl' adult use (e.g., sexually oriented theater, bookstore, massage parlor) from locating — within a single building. A similar ordinance was upheld in the North Carolina case of Hart Book Stores, Inc. v. Edmisten, 612 F. 2d 821 (4th Cir. 1979), cert. denied, 447 U.S. — 1 929 (1980). • The experience p ce wit h pultiple-use sexually oriented businesses at the University- Dale intersection suggests that these businesses have a greater potential for causing _ neighborhood problems than do single-use sexually oriented businesses. Following Renton, it is suggested that lawmakers document the adverse effects which the _ I -30_ community seeks to prevent by prohibiting multiple-use businesses before enacting this type of ordinance. 4. Requiring Existing Businesses to Comply with New Zoning Zoning ordinances can require existing sexually-oriented businesses to close their operations provided they do not foreclose the operation of such businesses in new locations. Under such provisions, an existing business is allowed to remain at its • present location, even though it is a non-conforming use, for a limited period. 177 The Minnesota Supreme Court has explained the theory this way: The theory behind this legislative device is that the useful life of. the nonconforming use corresponds roughly to the amortization period, so that the owner is not deprived of his property until the end of its useful life. In addition, the monopoly position granted during the amortization period theoretically provides the owner with compensation for the loss of some property interest, since the period specified rarely corresponds precisely to the useful life of any particular structure constituting the nonconforming use. Naeoele Outdoor Advertisina Co. v. Villaoa'of Minnetonka, 162 N.W.2d 206, 213 (Minn. 1968). Such provisions applied to sexually oriented businesses have been said .to be "uniformly upheld." Dumas v. City of Dallas, 648 F. Supp. 1061, 1071 (N.D. Tex. 1986), aff'd, FW/PBS. Inc. v. City of Dallas, 837 F.2d 1298 (5th Cir. 1988) (citing cases). As detailed in the first section of this report (pp. 6-15), there are significant secondary impacts upon communities related to the location of sexually oriented tY businesses. These impacts are intensified when sexually oriented businesses are _ located in residential areas or near other sensitive uses and when sexually oriented businesses are concentrated near each other or near alcohol oriented businesses. The Working Group believes that evidence from studies such as those described in the first . section of this report and anecdotal evidence from neighborhood residents and police 11. icers should be used 10 support the need for zoning ordinances which address these . problems. - k , - RECOMMENDATIONS 1. Communities should document findings of adverse secondary effects of sexually oriented businesses prior to enacting _ zoning regulations to control these uses so that such regulations can be upheld if challenged in court. 2. To reduce the adverse effects of sexually oriented businesses, communities should adopt zoning regulations to set — distance requirements between sexually oriented businesses and sensitive uses, Including but not limited to residential areas, schools, child care facilities, churches and parks. — 3. To reduce adverse impacts from concentration of sexually oriented businesses, communities should adopt zoning ordinances which set distance requirements ' etween liquor establishments and sexually oriented businesses and between sexually oriented businesses • and should consider restrictirtg sexually oriented businesses to one use per building. 4. Communities should require existing businesses to comply with new zoning or other regulation pertaining to sexually oriented businesses within a reasonable time so that prior uses will conform to new laws. IV. LICENSING AND OTHER REGULATIONS Licensing and other regulations may also be used to reduce the adverse effects of — sexually oriented businesses. The critical requirements which communities must keep mit- in mind are that regulations must be narrowly crafted to address adverse secondary effects, they must be reasonably related to reduction of these effects and they must be 1 capable of objective application. If these standards can be met, licensing and other regulatory provisions may play an important role in preventing unwanted exposure to sexually oriented materials and in reducing the crime problems associated with sexually oriented businesses. It is clear that failure to act upon a license application for a sexually oriented _ business cannot take the place of regulation. Without justification, denial or failure to grant a license is a prior restraint in violation of the First Amendment. Parkway Theater Corporation v. City of Minneapolis, No. 716787, slip. op. (Henn. Co. Dist. Ct., Sept. 24, 1975). . An ordinance providing for license revocation of an adult motion picture theater if the licensee is convicted of an obscenity offense is also likely to be held unconstitutional as a prior restraint of free speech. Alexander v. City of St. Paul, 227 N.W.2d 370 (Minn. 1975). The Alexander court stated: [W]hen the city licenses a motion picture theater, it is licensing an activity protected by the First Amendment, and as a result the power of the city is more limited than when the city licenses activities which do not have First Amendment protection, such as the business of selling liquor or running a massage parlor. Id. at 373 (footnote omitted); see also, Cohen v. City of Daleville, 695 F. Supp. 1168, 1171 (M.D. Ala. 1988) (past sale of obscene material cannot justify revocation of license). However, the courts have permitted communities to deny licenses to sexually _ oriented businesses if the person seeking a license has been convicted of other crimes which are closely related to the operation of sexually oriented businesses. In Dumas v. City of Dallas, supra, the court reviewed a requirement that a license applicant not have been convicted of certain crimes within a specified period. Five of the enumerated crimes were held to be not sufficiently related to the purpose of the -42- f • adult entertainment licensing ordinance because the city had made no findings on their — . justification. The invalid enumerated offenses were controlled substances act violations, bribery, robbery, kidnapping and organized criminal activity. The court — upheld requirements that the licensee not have been convicted of prostitution and sex- related offenses. Id. at 1074. If a community seeks to require that persons with a _ history of other crimes be denied licenses, clear findings must first be made which justify denial of licenses on that basis. The Dumas court also invalidated portions of the licensing ordinance permitting the police chief to deny a license if he finds that the applicant "is unable to operate or — manage a sexually oriented business premises in a peaceful and law-abiding manner" or is not "presently fit to operate a sexually oriented business." Neither provision — satisfied the constitutional requirement that "any license requirement for an activity related to expression must contain narrow, objective, and definite standards to guide — the licensing authority." Id. at 1072. See also Alexander II, supra, slip op. at 16 (unconstitutionally vague to define regulated bookstores as those selling "substantial or significant portion" of certain publications); 11126 Baltimore Boulevard, supra, 684 F. Supp. at 898-99 (striking ordinance allowing zoning officials to deny permit if adult entertainment establishment is not "in harmony" with zoning plan, does not — • "substantially impair" master plan, does,, not "adversely affect" health, safety and welfare and is not "detrimental" to neighborhood because such standards are "subject — ' to possible manipulation and arbitrary application"). A number of courts have upheld ordinances requiring that viewing booths iii adult theaters be open to discourage illegal and unsanitary sexual activity. See, e.a., Doe v. — City of Minneapolis, 693 F. Supp. 774 (D. Minn. 1988). ' Licensing provisions and ordinances forbidding massage parlors employees from administering massages to persons of the opposite sex have withstood equal protection and privacy and associational right challenges. See Clampitt v. City of Ft. — Wayne, 682 F. Supp. 401, 407-408 (N.D. Ind. 1988) (equal protection); Wiaginess. Inc. v. Fruchtman, 482 F. Supp. 681, 689-90 (S.D. N.Y. 1979), aff'd, 628 F.2d 1346 (2d Cir. — 1980), cert. denied, 449 U.S. 842, 101 S.Ct. 122. However, some courts have found same-sex massage regulations to be in violation of Title VII of the Civil Rights Act of -43- I • 1964. See Stratton v. Drumm, 445 F. Supp. 1305, 1310-11 (D. Conn. 1978); Cianciolo v. Members of City Council, 376 F. Supp. 719, 722-24 (E.D. Tenn. 1974); Joseph v. House, 353 F. Supp. 367, 374-75 (E.D. Va.), aff'd sub nom. Joseph v. Blair, 482 D.2d 575 (4th Cir.), cert. denied, 416 U.S. 955, 94 S. Ct. 1968 (1974). Contra, Aldred v. Dulinq, 538 F.2d 637 (4th Cir. 1976). Although the Working Group expressed strong concern about the operation of prostitution under the guise of massage parlors, this type of regulation is not advisable because legitimate therapeutic massage establishments could find their operations curtailed. Prostitution may be better controlled through prosecution and use of post- - conviction actions such as forfeiture or enjoining a public nuisance. _ In 1985, a court upheld an ordinance making it unlawful to display for commercial purposes material "harmful to minors" unless the material is ina sealed wrapper and, if the cover is harmful to minors, has an opaque cover. Upper Midwest Booksellers Ass'n v. City of Minneapolis, 780 F.2d 1389 (8th Cir. 1985). Last year, the legislature enacted a state law similarly prohibiting display of sexually explicit material which is harmful to minors unless items are kept in sealed wrappers and, where the cover itself would be harmful to minors, within opaque covers. Minn. Stat. § 617.293 (1988). This law has the potential to protect minors frog exposure to sexually oriented materials. Communities also have considerable discretion to regulate signage so that the exterior of sexually oriented businesses does r ?t expose unwitting observers to sexually explicit messages. - F RECOMMENDATIONS 1. .. . Prior to enacting licensing regulations, communities should document findings of adverse secondary effects of sexually oriented businesses and the relationship between these effects and proposed • regulations so that such regulations can be upheld if challenged in IL court. L- -4.4 i • - - = - 2. Communities should adopt regulations which reduce the L_:, likelihood of criminal activity related to sexually oriented businesses, _ - including but not limited to open booth ordinances and ordinances ilf- which authorize denial or revocation of licenses when the licensee has — committed offenses relevant to the operation of the business. — 3. Communities should adopt regulations which reduce 111 exposure of the community and minors to the blighting appearance of sexually oriented businesses including but not limited to regulations of — signage and exterior design of such businesses and should enforce Istate law requiring sealed wrappers and opaque covers on sexually _ oriented material. I — ICONCLUSION — IThere are many actions which communities may take within the law to protect themselves from the adverse secondary effects of sexually oriented businesses. — I Prosecution of obscenity crimes can play a vital role in decreasing the profitability of sexually oriented businesses and removing materials which violate community — I standards from local outlets. Forfeiture and injunction to prevent public nuisance should be available where sexual y\ oriented businesses are the site of sex-related _ crimes and violations of laws pertaining to °ambling, liquor or controlled substances. These actions will remove the most egregious establishments from communities. . _ IZoning can reduce the likelihood that sexually oriented businesses will lead to — neighborhood blight. Licensing can sever the link between at least some crime figures Iand sexually oriented businesses. Regulation and enforcement can protect minors from exposure to sexually explicit materials. I . Attorney General's Working Group on the Regulation of Sexually Oriented — II Businesses believes that prosecution, seizure of profits, zoning and regulation of sexually oriented businesses should only be done in keeping with the constitutional _ _ — I -45- _ I — . : • requirements of the First Amendment. Rational regulation can be fashioned to protect both our communities and our constitutional rights. _ . — • . • 11% \N • -46- CHANHASSEN PLANNING COMMISSION REGULAR MEETING JULY 21 , 1993 Chairman Batzli called the meeting to order at 7 : 40 p .m . MEMBERS PRESENT: Diane Harberts , Joe Scott , Ladd Conrad , Jeff Farmakes , Matt Ledvina and Brian Batzli MEMBERS ABSENT: Nancy Mancino STAFF PRESENT: Kate Aanenson , Senior Planner ; Sharmin Al-Jeff , Planner I ; Dave Hempel , Asst . City Engineer ; and Tom Scott , City Attorney PUBLIC HEARING: NON-CONFORMING USE PERMIT FOR COLONIAL GROVE HOMEOWNERS ASSOCIATION RECREATIONAL BEACHLOT . THE PERMIT SHALL DESCRIBE THE NATURE AND EXTENT OF THE USE ALLOWED . Public Present: Name Address Larry Crawford 107 Sandy Hook Jeff & Judilyn Kvichaug 6681 Horseshoe Curve Hod Dahl 6631 Horseshoe Curve Lois J . Donnay 7002 Cheyenne Trail Jeffrey H . Zappa 7002 Cheyenne Trail Edward & Peggy Bennett 7017 Sandy Hook Circle Don Leivermann 7003 Cheyenne Trail Len Adler 210 Sandy Hook Road Nicholas & Christa Vassallo 7018 Cheyenne Trail Irene Erhard 7004 Cheyenne Trail Ken & Nancy Sherman 7025 Cheyenne Trail Dave & Lorraine Wessell 7017 Cheyenne Trail Betsy LePlatt 7012 Cheyenne Trail Jim Andrews 7014 Sandy Hook Circle Sue Robbins 7022 Sandy Hook Circle Tom Jamison 30 Sandy Hook Road Susan Conrad 6625 Horseshoe Curve JoEllen Price 7006 Sandy Hook Circle Virginia Hudson 7007 Sandy Hook Circle Paula Mosley 7012 Sandy Hook Carolyn Erny 7008 Sandy Hook Carol Edgerley 7013 Sandy Hook Circle Jim Lee 7015 Sandy Hook Circle Tom & Pat Peterson 7020 Sandy Hook Circle Debbie Engel 7016 Sandy Hook Circle Herb Bloomberg 7008 Dakota Avenue R .C . & Nancy Neer 50 Sandy Hook Road Cliff Whitehill 7001 Dakota Avenue Rob Moschet 7006 Cheyenne Trail Kate Aanenson presented the staff report on this item . Chairman Batzli called the public hearing to order . Planning Commission Meeting July 21 , 1993 - Page 2 Cliff Whitehill : Good evening . My name is Cliff Whitehill . I live at 7001 Dakota Avenue , which is in the Colonial Grove Addition . And I was one of the incorporaters and founders of the Lotus Lake Betterment Association which is the Association that has ownership of the beach outlot , as well as- to make sure that the maintenance and care of that facility is well maintained . This goes back to a little , even before 1981 . Before 1981 that outlot was being utilized as a docking area for some boats . I , as a matter of fact , built the first dock myself which was 45 foot in length . And then when the city started requesting that these uses be under a use permit , we applied in 1981 for the various useage of the outlot which was as a docking area as well as the tennis courts . There were some Minutes preceeding that in 1980 . And the letter that you have addressed to you from Kate Aanenson is incorrect in another manner and that is on the last , or the second page there before summary . It says the Planning Commission 'E Minutes state that the conditional use permit would be required to dock boats overnight . If you ' ll look at those Minutes , it does not say that . The issue then was brought up as to whether the outlot would be used to store boats and we all the difference between the useage of the word store versus the use of the word dock boats at a dock . And that 's certainly correct when the use permit was issued , it did not allow for any boats to be stored on that . After the permit , shortly after the permit was issued , we were a little concerned that while the 100 foot dock that we had requested had been allowed , and the other matters that are specified in the permit , it didn 't say anything about the number of boats . And I called ane- was assured that that was no problem . The practice wasn 't to govern the number of boats . It was to govern the length of the dock and whatever boats fit at the dock would be automatically allowed . So that 's where we went forward from for years and years . As a matter of fact the survey that was done slightly after or around the time of the use permit showing 3 boats being docked at the dock that was , nobody ever said anything about that . Nobody questioned whether 1 boat , 3 boats , or any limited number of boats should be docked . And then it was only until late last fall that the association was contacted by the staff saying that there appeared to be a gap in the understanding of the use permit and would we please apply for an- appropriate adjustment or amendment or clarification of our conditional use permit and I again then expressed some reservation about well , you know this has all been decided before . Why do we have to come back and was told that this is just a matter of clarification and all we had to do was demonstrate the number of boats that were there in 1981 after the dock was built and the matter would simply adjust to that number . Unfortunately , due to some mailing mix-up and what have you though , I had written the request as we stated for 8 boats to be specifically allowed at the dock for overnight docking . This went on for several months . I 'm sure your agenda was busy and at the last minute I didn 't get the notice so neither I nor anybody else from the Association had sufficient notice to be here . And therefore the reason that we asked for a re-hearing on the matter since that you had only granted 3 boats at a dock , which is certainly capable of handling more boats . The last is that , you know a limitation of 3 boats , or no boats , doesn 't really keep any boats off the lake . As a matter of fact , it causes a worse problem for the city than allowing the number of boats that we 've customarily had down there and if you know , there are some- 70 odd houses in the neighborhood so even allocating 8 or 9 spaces , is a real task of draw your lottery and we try to solve everybody . I remember one year we had to go to double allocation so that some people got to use Planning Commission Meeting July 21 , 1993 - Page 3 the docking facility the first half of the summer . If that 'd been this summer , that 'd been a disaster . And some people got to use it the second half but we 've always managed to work out our own problems . If you take the number of docking spaces away , the people have the boats in the neighborhood and all they 're going to do is have the irritation of driving down and further congesting the public dock . Either by their trailer , by useage of it , etc . The same boats are going to be on the lake . Maybe you discourage them once or twice from not using it because they don 't want to drag the boat down to the public ramp , but I doubt that . If somebody wants to use the boat , and we 're that close , you know within less than a mile of the ramp , the people are going to do it . So the boats are going to be on the lake one way or the other and certainly causing less problems . Less congestion at the ramp , highway , etc . for storage of the trailers down there and allowing other people to have useage of that I think is a much _ better way of resolving the problem . Lastly the Association , as I mentioned in my letter , we have never received one verbal or written complaint about the useage of the dock or any other matter associated with the outlot . I think any of you who may have visited that would find that area kept in immaculate shape and I mean immaculate . It 's mowed . It 's manicured . The tennis courts are kept in excellent shape . The driveway 's in good shape and the dock 's in good shape . I mean it is a real asset to the neighborhood and I think an asset to the city of Chanhassen . I 'd be glad to answer any questions you may have . Batzli : We may have some at a later time . Thank you . Is there anyone else that would like to address the Commission on this issue? Ken Sherman : My name is Ken Sherman . I live at 7025 Cheyenne Trail and I 've been living there for 3 years . There are several people here , along with I , who I think have been moved into the neighborhood during that period of time and when we bought our homes we were told by previous owners _ and real estate agents that boats were docked at the dock . We were never given a limitation to the number of boats and it was understood that I would say anywhere from 5 to 8 boats could be there . During the 3 years I 've lived in Chanhassen , I 've enjoyed it . There 's always been an understanding that that was part of what I bought when I purchased my home . And I fail to understand why anybody would feel that they could , and I am in the real estate business . The commercial real estate business . I own property in downtown Minneapolis . I 've come across this in my own business and if there is something that in inherent in an agreement , whether it be in property , we are bound to live with it . I don 't understand why anybody would want to change that understanding that we bought our homes thinking that this is something that was valid . Batzli : Thank you . Betsy LePlatt : My name is Betsy LePlatt . My address is 7012 Cheyenne Trail . We just bought our house several months ago and moved into the neighborhood because we had moved from a lake and believed that we could put a boat at the dock when we purchased a boat . If we lose that , I don 't know what we 're going to do . I guess move to lakefront somewhere else . Thanks . Harberts: Can I ask a question of Betsy? Planning Commission Meeting July 21 , 1993 - Page 4 Batzli : Sure . Harberts: Betsy , you said you moved from a different lake to this lake . Betsy LePlatt : Mitchell Lake in Eden Prairie . Harberts: Okay . When you purchased your home , did you count on the word - of the real estate , the owner that yes , you had docking right? Did you go to the city? Betsy LePlatt: The house was advertised as having deeded access . When they did the title work , it didn 't show up on our deed so we got very upset and said , hey Edina Realty this is advertising , false advertising . So we called the President of the Association and did our research and found out that there was a 99 year lease on this lot beginning in 1981 I believe so we thought that everything was great . We were told that sometimes it was crowded at the dock and we might not get a slot during a certain year , but most of the time it looked like we would be able to . Harberts: Okay , thanks . Betsy LePlatt : Thank you . Rob Moschet : My name is Rob Moschet . I live at 7006 Cheyenne Trail , which- is hichis a part of the Colonial Grove subdivision . I have a question for the Planning Commission and for the staff . I have not seen a copy of the permit that we 've been talking about . Is there a time restrictions on the permit? Batzli : I 'm sorry , time restriction in what manner? Rob Moschet : The number of years that the so called non-conforming use is permitted? Batzli : No . Rob Moschet : Has the permit come up for review? Batzli : No . It 's my understanding , and correct me if I 'm wrong Kate , is that the non-conforming use permit was basically recorded with that piece of property or with , so that it would run with that lease and last as long as the lease . Aanenson : Correct . Rob Moschet : Okay . Then it 's not a question of us , as the Association having violated the terms of the permit or that the permit has expired and we are now required to state reasons why it should be re-issued . Batzli : One of the issues is perhaps whether you have violated the terms of that permit by having more boats there than you 're permitted under the - permit . But I don 't think anyone has suggested that it would be a revocation of the permit kind of situation . What we 're talking about here is we 're trying to establish in 1981 baseline of use and report that useage Planning Commission Meeting July 21 , 1993 - Page 5 up to the Council for their final decision that this is how , this is the number of boats . This is really the only issue we 're focusing on here . The number of boats but we 're trying to establish 1981 as a baseline and to the extent that people have expanded that use , we need to go back to the 1981 baseline . Rob Moschet : Okay , in that circumstance then I would suggest to the Planning Commission and to the Council that if anybody here bears the burden to show that this is a non-conforming use in connection with the permit , it is not the homeowners association at this point but it is the persons who wish to make a change . And that would be the city or the staff in this situation . Batzli : Well we , let me just address that because that is one of the things we 've been doing for the last year and a half here . Is that we have a certain modicum of evidence which described the level of use which we understand to have occurred at the various beachlots throughout the city in 1981 . Pursuant to the ordinance that we 're doing this under , basically it 's up to the applicant to show that our information is flawed . So in fact you have the burden of proof here to show us what the level of use was in 1981 . Rob Moschet : I would suggest respectfully sir that we are not an applicant . We are a permittee . You have granted us the permit . We have no further burden after that . I 'd also suggest , as stated by some of my neighbors here that in a situation where we have abided by the requirements of the use permit , this gives rise to reasonable expectations that the level of use would be continually permitted . I , as a number of other people here , purchased my home in reliance on that reasonable expectation which I would suggest is not to be taken away without very good reasons . Without justifiable reasons and I haven 't heard any reasons . Mr . Whitehill eluded to probably some of the reasons talking about the level of use on the lake . But I haven 't heard any good reasons that would outweigh the resident 's justifiable expectations . I would say that the Planning Commission and the city must carefully balance our reasonable expectations versus the need for any further restrictions and if you do that , I think our reasonable expectations should outweigh those restrictions . Thank you . Batzli : Thank you . Would anyone else like to address the Commission? Jeff Kvichaug: My name is Jeff Kvichaug and I live at 6681 Horseshoe Curve _ on Lotus Lake in Chanhassen . While I respect the wishes of the homeowners , I think the key issue and question is the level of useage that was established in 1981 and what we did is contacted the Lotus Lake Homeowners Association . The Board members that were active and members that were active during the timeframe that 's in question to determine the number of boats that they recall as far as being utilized or located at that dock at that point in time . I have a letter here that I ' ll pass out . I have a letter that 's signed by 14 members of the Lotus Lake Homeowners Association and I can read the letter if you like . In essence the spirit of the letter says that , the Association was incorporated in 1981 because it was involved in city issues effecting area lakes . Among the many issues being dealt with that years was establishment of both the shoreline management ordinance and the beachlot ordinance . In early June of 1981 Lotus Lake Planning Commission Meeting July 21 , 1993 - Page 6 Estates Homeowners requested boat mooring and docking priviledges not previously granted to beachlot groups . Their request was denied in October . During the summer leading up to that decision . We are very concerned with any precedence in relation to beachlots . Consequently , we were keenly alert to any infractions of the mooring regulations . During that summer we observed 2 and sometimes 3 motorized boats moored in front of Colonial Grove 's outlot . When we reported this violation to the subdivision 's Association Board , we were informed that 2 boats belonged to one of their association 's lakeshore owner 's . This particular family had a wetland area in front of their home so the sons docked their boats at the common beach to make water skiing easier . Soon after our notification of this problem , the boats were removed but periodically reappeared . It is possible that the same 2 boats did not reappear but 2 or 3 boats continued to be present at various times that summer . To the best of our knowledge and memories , the undersigned active members of the Lotus Lake Association support the findings in the survey presented by the Lake Study Committee in 1981 . That is the testimony or the letter from the Lotus Lake Homeowners Association Board members and active members at that point in time . Thank you . Batzli : Thank you . Would anyone else like to address the Commission? Cliff Whitehill : I 'd like to . . . Batzli : Would you like to offer some rebuttal to this? Cliff Whitehill : Yes . Batzli : Go ahead sir . Cliff Whitehill : As to the survey that was supposedly done in 1981 , that has little , if any weight . It doesn 't state the time of day . It 's not signed by anybody . We don 't even know who did it . We can 't even question _ the individual who did it . It 's a totally unsworn , unsubstantiated survey at some particular point in time . There could have been 6 boats roaming around the lake and 3 at the dock . As to this particular letter , I was not furnished in advance so we don 't have a chance but to check the names here . We are dealing with the issue as to what was the use in 1981 . We have 5 sworn affidavits that have been presented to you as to what that use was . People who were active in the Association at that time in 1981 . Am I to understand by the gentleman who presented this letter that every person whc signed this was a resident and active in the Association in 1981? Jeff Kvichaug: Yes . That is correct . Cliff Whitehill : Well we can check the Minutes and it 's simply not in keeping with what was sworn to at the time . What was the use . I built the- first dock . Had the second dock built . Have always had a boat down there . Am more than familiar with what the useage was and as I said , in subsequent years we even had to allocate at time , Minutes from our meetings . They weren 't always kept but showed well over 9 people using the dock . And agair no issue has ever been raised by anyone other than recently asking for , that we clarify the use permit . And as we were informed in 1981 after the permit was issued , that if the particular act , i .e . the mooring of the Planning Commission Meeting July 21 , 1993 - Page 7 boats was not a prohibited act under the permit and there are enumerated prohibited acts that cannot be done on the lot , then certainly the dock could be used for mooring of the boats in the ordinary sense . Not just during the day , and by the way that 's even another issue and - clarification . I mean how can you know , no boats can ever come to the dock? Is that what we 're saying? Three overnight . At what time overnight? Does it end automatically at sundown? I mean there 's a whole series of issues that were never intended to arise . I mean the dock was built for 100 foot length and if only 2 or 3 boats , we could have saved ourselves a lot of money by not extending the dock out that far . So everything fits together as far as the evidence and the affidavits . Batzli : Okay , thank you . Carol Edgerley: Hi . My name is Carol Edgerley . I live at 7013 Sandy Hook Circle in Colonial Grove . I have a couple of questions here . I 'm a little confused . First of all , in 1981 I don 't think quite a few of these houses were even built . So why are you trying to establish how many boats there were back in 1981 as a precedent when if the association had a permit to dock boats there , that you didn 't have any specific number on there , the amount of houses in that group has grown quite a bit since then . So you 're going to try and only keep this back to as many as even might have been there in '81 anyway? Secondly , I 'd like to ask this gentleman where Horseshoe Curve is and why the hell are we bugging him . Batzli : Horseshoe Curve is on Lotus Lake . Carol Edgerley : Where? Batzli : Where? Carol Edgerley : Yeah , where . Where on Lotus Lake? Where is he in relation to? Batzli : It 's on the northern part of Lotus Lake off of Pleasant View . Carol Edgerley : So what 's in this for him? Batzli : I 'm sure people around the lake are concerned about access and intensification of use . - Carol Edgerley : So why put in public access a couple of years ago if you 're going to worry about us putting 8 boats at a dock? Are you going to go down and count the amount of boats down there at the public access? Is he down there all the time counting the amount of boats at the public access? Batzli : No . I 'm sure all these questions are rhetorical . I don 't know . Carol Edgerley : Well , I 'm just saying . Why pick on us for heaven 's sake . We can only , if we stacked them this to this we can only put 8 boats at our - dock . It 's not as if we 're going to suddenly have 50 come down there and we can 't even put boats in there . You have to drive around and bring them Planning Commission Meeting July 21 , 1993 - Page 8 around so it 's really only . . .night . So I really don 't see the gentleman 's problem or his objections frankly . Batzli : Okay . Well thank you for your comments . Would anyone else like to address the commission? Chuck Hirt: My name is Chuck Hirt , 7007 Cheyenne Trail . I 've lived in the neighborhood since '71 . I 'm one of the ones that signed one of the affidavits . We did have 8-9 boats there at that time in '81- '82- '80 area . One of the comments I guess I have , if you do allow no boats or 3 boats or whatever it 's certainly , we pay high enough taxes in that neighborhood . I hope that everyone in the neighborhood will hire an attorney and see if we can get our property values reduced and also reduce our taxes . That would be a benefit I guess from this but we did have that many boats at that time . Richard Heer : My name is Richard Heer . I live at 50 Sandy Hook Road . I 've had a boat since 1981 and lately I 've kept it more at the dock but back then I used the dock occasionally . I would occasionally keep it overnight and I can recall 8 to 9 boats being used back in '81 . I 've live(' there since 1979-80 . Batzli : Thank you . Anyone else like to address the commission? Harold Dahl : My name is Harold Dahl . I live also on Horseshoe Curve . That map , it 's difficult to see but Horseshoe Curve and my property is on the northwest corner of the bay that we 're dealing with here in terms of issue The dock is directly across the lake from me . I spoke at the last meeting that was held on June 2nd . I believe I reiterated my primary concern is setting a precedent for other outlots on the lake . It 's my understanding - that there are 6 or possibly 7 other outlots which could be impacted by modification of your previous decision . I 'm particularly concerned because of the size of the lake frontage on this particular outlot . It 's my understanding it 's only approximately 50 feet . And I 'm also concerned because of the evidence that 's being presented in support of their request I sympathize with the Colonial Grove residents . I 'm sure that many of these members have become accustomed , at least in recent years , to docking many boats on their dock . Now they 're being forced to comply with a law change which rolls back their useage to 1981 levels . And if I was a member of that group , I would certainly argue against the change as being unfair , particularly for the members that have joined the association in the last few years who may have come in with expectations about a given number of slips and their continued useage over time . Unfortunately , this is a situation we 're dealing with . It is divisive but we need to have this commission conclude on it and then move on . It 's my belief that the key issue here is measuring the useage in 1981 . I think there 's been a lot of evidence given by members of the association but that issue has not really - been addressed with substantiation to meet my criteria I guess , and I 'd like to hand out something to the members . I have a few extra . . .Again , the key issue here is measuring the useage in 1981 . In my mind there is a hierarchy of evidence of data which may be available to support the useage levels in 1981 . Obviously these are ranked in order of preference . Obviously if there was a non-conforming use permit that governed this issue , we wouldn 't be here tonight . Secondly , some contemperaneous record Planning Commission Meeting July 21 , 1993 - Page 9 would be good evidence in support of the useage that might have occurred in 1981 . I 've listed three possible examples . One is a survey which was conducted . Second is a dated photograph . I 'm aware of some photographs that have ben taken periodically by the Ag Extension Service . I would also consider a contemporaneous record to be notes and memorandum that were taken at the time . Thirdly , as a next level I would consider witness testimony . Particularly from unrelated third parties . And lastly I would consider witness testimony from interested parties . If I go down this list and I 'm talking in terms of the precedent that we 're setting here for other outlots , I don 't think there is a non-conforming use permit that covers the useage of , that allows the dockage of boats in 1981 . I have seen the document and reviewed it . It 's my understanding that a non-conforming use permit is silent on dock of boats . And there 's other language in that permit that suggests that absent of affirmative language on that issue , boat dockage should not be allowed . In terms of the next piece , contemperaneous record , I 'm aware of a survey that was conducted by an independent party that suggested there were 3 boats docked in 1981 . Further , this survey is supported by members of the lake homeowners association , many of which were active about this issue during the timeframe . We have researched Ag photos . We found an Ag photo that covered the area . Unfortunately the clarity of the picture was such that you could not determine with any sort of certainty how many boats were docked at the dock . You can tell there 's a dock there . That 's about it . That photograph suggested the number of houses that were present in 1981 was very small . And thirdly , I 'm aware of no notes or memorandums that = were done contemporaneously that would support their position . The next level of testimony , the next level of evidence would be witness testimony and I 'm unaware of any unrelated third party testimony to support their useage . Finally , we have witness testimony from interested parties but it is in conflict . Obviously we 're dealing about an issue that 's 12 years old . We 're trying to determine useage in 1981 . In 1981 , that 's along _ time ago . Obviously 3 and 4 are subject to differing degrees . 3 and 4 on my list . Witness testimony of unrelated parties and interested parties are subject to different degrees of memory loss interpretation . I think memory loss can be mitigated by the degree to which you are involved in the issue and the extent to which you can use contemporaneous records to refresh your memory . In my recollection , events 12 years ago is 1981 is the year I should have graduated from college had I gone through straight through . That 's about the extent of my memory . If I go down this list , this hierarchy of evidence that 's been presented to support their useage , I have to conclude there is no non-conforming use permit . Secondly , I 'd have to conclude that the only contemporaneous record is a survey which is supported by the recollections of members of the lake homeowners association . I 'm unaware of any dated photograph . I 'm unaware of any notes or memorandums and the witness testimony 's in conflict . Both parties that have offered testimony in terms of witness are , in my mind , interested parties . However , I believe the credibility of the homeowners association is slightly higher because I think in my view they 're a little bit less interested than those who live in the association that we 're talking about . My hope is that the commission reaffirms their earlier decision , ends this discussion and moves on . Thank you . Batzli : Thank you for your comments . Planning Commission Meeting July 21 , 1993 - Page 10 Debbie Engel : My name is Debbie Engel . I live at 7016 Sandy Hook Circle . I 'd like to address a question to the gentleman that was just up here . In his hierarchy and he said that the homeowners , lake homeowners did the survey , or initiated the survey or whatever and he said they 're not as interested in this as Colonial Grove homeowners , which is us . I really question that . I think in this hierarchy they are very much as interested and in the fact that it 's the homeowner 's on the lake that received first notice of this meeting and we did not also shows that they have a very vested interest in this and it shows the bias in a lot of this proceedings . And the way it has been dealt with with the city . Batzli : Thank you for your comment . I 'd like to make one point and that is that we have made it a policy that we communicate with one person of the Association and to the extent those of you did not receive notice , we apologize for that . Go ahead sir . Debbie Engel : I 'm sorry , I have to address that . My husband is the President of the Homeowners Association and I will swear , we did not receive any notice . At all . Batzli : Okay , thank you . Ed Bennett : My name is Ed Bennett . I live at 7017 Sandy Hook Circle in Colonial Grove and I 'm not a boat owner and I 've been a resident there since 1987 and I just think as you 're evaluating this , I think you should , we ask you to take into consideration the fairness of what you 're asking us and I think the arguments all to the contrary that the gentleman has presented about surveys that were done , that could have been done , who knows at what time of day . Some aerial photographs that are eluded to that who knows when they could have been taken . In my mind there 's a lot of spacious subjective guesses of things that might have been but there 's no substantiation there and if that 's the case that we 're building this around , is some rather extremely limited data from questionable sources , I suggest that the founding fathers of our association , Cliff and the other people who have testified and my own personal observations from the useage of that since we 've been there , which doesn 't go back to 1981 . And the number of people who are affected by this certainly seems to be that what - we have put forward as a reasonable level of useage and what we think was and has been testified as in the past a reasonable level of useage is certainly a reasonable point for you and the Council to recommend and I think to draw it back at 3 slips something like 70 houses is almost like saying there 's no useage of that . So that would be my comments . Batzli : Thank you . Would anyone else like to address the Commission? Someone new . Betsy LePlatt : 1 just have another question . I 'm wondering if possibly the useage of this dock would be considered grandfathered in since it has been existing since before a lot of the homes that are along Lotus Lake nov. and the other associations and why make an old association conform to something you might do for a new association? Thank you . Batzli : Is there anyone else that hasn 't addressed the Commission that would like to address the Commission? Okay . Is this something new? Planning Commission Meeting July 21 , 1993 - Page 11 Rob Moschet : Yeah , just a follow-up question . Are there other outlots that are being looked at now? Are there other outlots that are subject to a permit such as we have? Aanenson: We 've done 14 of them . You 're the last one . There are numerous , there 's two other associations on the Lotus Lake that do not have overnight docking rights . Frontier Trail Association and Sunrise Hills . And they have a dock and they cannot dock overnight . Rob Moschet : And this is set out in their permit? Aanenson : Correct . They 're not allowed . Rob Moschet: Okay , and it 's not set out in our permit . Aanenson: They didn 't have a permit at all . All non-conforming beachlots were required by the city , the city passed an ordinance last year to require all non-conforming beachlots to get a permit specifying the level of use . Rob Moschet : Okay . And we already had the permit . Aanenson : Except it does not specify the level of use . That 's the only thing we 're looking at . The level of use for overnight docking of boats . Rob Moschet : Okay . I would echo the comments of the person right before me that this does amount , in my opinion , to analogous situation of being grandfathered in and I would support that argument too . Batzli : Thank you . Is there any other public comment? Is there a motion to close the public hearing? Ledvina moved , Conrad seconded to close the public hearing. All voted in favor and the motion carried . The public hearing was closed . Farmakes: 1 think that what we 're doing here tonight is kind of indicative as to why there was an ordinance created in 1981 . You get a group of many homeowners , neighbors who are living next to each other in associations . The disagreements on these issues on these non-conforming lots . This wasn 't changed . It has been in effect . This ordinance has been in effect since '81 . The issue , the problem is here tonight . In 1981 there might have been 5 people in here discussing this issue . There 's now a roomful of people and as we get larger and larger , the continual pressure on these lots increases . We have a 25 foot lot here . I have tried to be very equitable on how we 've treated these lots . This is the last one I believe here . Many of the concerns have come up over and over again on these issues . One of the issues that has come up over and over again is individuals have purchased property unfortunately , listening to people who are selling it to them with the understanding that whatever they say is true . And as it is in many cases , it 's up to the buyer to investigate whether or not it is true . Deeded access has a long established use in this community . Minnetonka . The lakes around here . Because you have deeded access doesn 't mean necessarily that you can get on the lake . It is up to the home buyer to do their homework and really look at how lakeshore Planning Commission Meeting July 21 , 1993 - Page 12 is governed . It is multi-jurisdictional and homeowner associations do not have that governing right . It 's state agencies . It 's watershed and it is local municipalities who make these decisions . And they do so in the best - interest of their citizens . All of their citizens . This is a difficult issue , particularly with people who do not have an understanding of what they purchased . And I don 't need to go over again , Brian defined what the issue is here . It 's an expansion of use from '81 and the criteria that we 're using to define that use has been I believe consistent in how the burden of proof that we put out and evaluation I think has also been consistent . I don 't see anything here that would lead me to expand that use . And I 'm not going to say that we 've got 10 people lined up that said it 's so and we 've got 5 people who lined up and said it 's so . I don 't see any photographs . I don 't see any compelling evidence that would make me change my mind on this issue of how I voted . Brian . Batzli : So you 'd stick with 3? Farmakes : I 'd stick with 3 . Batzli : Joe . - Scott : I 'm thinking along the same lines that Jeff is . Is that the issue is not access . That 's not really the question and I think those of you who- think that whatever is recommended here and whatever is decided at the Cit. Council level , you still have access to the lake . And a lot of times , I know if I were in a situation and I had either a riparian lot , not on the _ lake or one that wasn 't and it was my understanding that I would be able to put a boat on the lake , and I felt that was being taken away , that would upset me . That is not being taken away . The issue is how many boats at the dock overnight . Whatever overnight happens to be . So it 's important - that that 's clear . Okay . From a standpoint of the use , I 'm comfortable with the decision that we made last time around and I don 't have any further comments . Batzli : Okay , Matt . Ledvina : Well I think there is some information . I don 't feel that the homeowners association had an opportunity to present their case , which I now see in front of me . I see 4 signed affidavits as to the level of use at that time and I think these affidavits in my mind provide substantial evidence for the level of use at that time . We 've , on many of the other beachlots we consider the possibility that boats would be out on the lake at a given instance and we 've allowed more boats than the boats that were _ indicated on the survey . So I think given this additional information , I would support a proposal for 8 boats . Batzli : Okay , Ladd . Conrad: I think as the people here tonight think that we 're making arbitrary decisions , you should have heard us in the other 13 or 14 lots - that we 've looked at . I saw this having more documentation than any other one . Documentation from the standpoint of Minutes . Documentation from the standpoint of consistency of inventory , where we didn 't have that in other outlots . The other thing is , I was on the Planning Commission in '81 and Planning Commission Meeting July 21 , 1993 - Page 13 I remember this issue . I forget a lot of things . I do remember this issue . I remember the permit . The non-conforming use permit and the process and I remember very well that the intent was you don 't get boats until you come back and ask for them . That permit in '81 was granted sanctioning certain things but certain things were left out and I think the Minutes that I read and Mike Thompson who made some comments and actually asked for an inventory of the lake at that time , there really was a clear pattern and there was some consistency of all of this . And I felt pretty comfortable with the decision that we made last time . In talking about reasonableness , it 's too bad you haven 't been here for all of our Minutes and meetings and what have you . You might understand a little bit more of our rationale . I think we 've been trying to be fairly liberal . Trying to be reasonable . If you know what current beachlots , non-conforming beachlots . If you know what beachlot requirements are today , and you see that you have 25 and your neighbors have 1 ,000 feet of land right next to you , and they can only have I think 9 boats , then I 'm not sure that 8 boats is reasonable on 25 feet . But that 's not the issue tonight . But I know a lot of people talked about reasonableness . How can you do this and so I wanted to address that _ a little bit . Reasonable is what we 're looking at . Reasonable is what we 're trying to be but then when you compare to what we 've seen and what people with outlots , beachlots can get today , you 'll find that actually you 're being treated fairly well . But going back , what was the use in '81? There was a non-conforming permit there? I was here . I helped draft it . It 's probably got loopholes that Cliff could knock the pants off it if he took it to Court but again , I knew the intent and the intent was , there - were no boats until they came back in with a change . That 's why the first time through I said that the non-conforming permit was being interpretted properly by staff . Batzli : Do you go with 3? 0? 8? Conrad : I voted for the non-conforming which said that they were not — granted at that time until they came in . Batzli : Okay . Diane . Harberts: At the June 2nd meeting I voted for no overnight boats . Based on the discussion , the comments from the gentleman from the association that was there since 1981 , and I appreciate you coming in . I 'm prepared to go with the vote that did pass off 3 boats overnight . I think Jeff made the comment earlier . Recently buying a home in Chanhassen I know what it is to go to City Hall . I was up there a couple of hours . We don 't live on the lake . We enjoy Lotus Lake . Numerous times when we go down there , the lot 's full and we just go find some other lake . But I think what we try to do is be consistent with our process and it 's been real interesting with it but the burden has been on the owners because as Ladd commented , we 've got 3 years of inventories and as I recall , this is the first beachlot where we have that and that inventory for those 3 years in '81 , '86 and '91 indicated 3 for 2 of the years and 4 for the third year . So at this point I 'd support the 3 boats overnight . Batzli : Okay . I guess my comments are that I think we decided by a slim margin last time 3 because of the survey that had been done back in '81 . It was probably we decided that because we didn 't have any real evidence Planning Commission Meeting July 21 , 1993 - Page 14 that there was more than that . I 'm kind of going to side with Matt here and say that the evidence that I have in front of us is at least as good as some of the other evidence which we 've seen where we 've been fairly liberal . I don 't think it 's an intensification of use to park them overnight , as I 've said in the Minutes from last time as opposed to bringing them in or bringing them out , if that 's what 's going to happen . I don 't think the survey 's a final arbitor of the number here . We all recognize the limitation of going out there at one isolated moment in time so I would go with 8 boats on the dock and say we fulfilled our charter of determining the level of use in 1981 . And I guess the contract , you know I— don 't know what the intent is and Ladd's interpretation is certainly helpful because he was here . But it clearly , it doesn 't say that they can 't do it and it seems like they 've been doing it . I guess I would say they 've grown accustomed to the priviledge if you will . Anyway , I would entertain a motion . Cliff Whitehill : Before the motion Mr . Chairman . I know the hearing is closed but unfortunately it has been opened again because Mr . Conrad has acted not as a Councilmember but has given testimony about what happened in 1981 , which was totally different than acting as to the evidence that was presented to him . So I think some clarification is necessary . There is not one iota of evidence that after the use permit was granted in 1981 that anyone asked anyone to return and request further clarification of that permit as to the number of boats that were moored there . As to the survey , there 's only really one survey which is unsigned , undated as to time . We can 't even question the person who did that survey . I think Kate correctly set the basis of the hearing tonight . It 's not a question of what might be— fair or reasonable today if we were applying for a non-conforming use permit for that outlot . The sole question before the commission is what was the use of that lot in 1981 . We presented 5 sworn affidavits of people who were residents . They were very closely part of the association . It 's a sworn affidavit . The counter letter is from people who didn 't even live in the area . The neighborhood so the evidence is just overwhelming as to the only issue that 's before the Commission and that is what was the use it 1981 . And I 'd like to have you think about it in that respect . Not before you take your final vote . Not to what might be fair and reasonable under today 's circumstances because that simply is not the issue . Thank you . — Batzli : I don 't know that Mr . Conrad acted improperly and so to the extent I let you address the Commission , that 's not why I let you address the Commission but thank you for your comment . Is there a motion? Scott : I move that the decision as made by the Planning Commission on June 2nd for 3 , approving the dockage of 3 boats overnight stand . Batzli : Is there a second? Farmakes : I ' ll second it . Batzli : Let me just explain the motion for those of you who didn 't hear it . The motion has just been made that we maintain our decision which we reached at our last , the last time that we considered this issue and keep the number of boats docked at 3 . Is there any discussion? Planning Commission Meeting July 21 , 1993 - Page 15 Harberts: Comment . I would encourage that based on the information that we received that seem to be conflicting each other . We 've got a petition in a sense signed by 10 individuals . We have 5 affidavits from the other . I would just encourage them , that they insure that they follow this up to — the City Council and they may want to get their ducks in a row on either side because the final decision is with the City Council . But I think the greatest decision here is what is the level of use and again I 'll reiterate that with our other permit that we 've previewed , we 've certainly taken , been consistent with looking at the survey information that 's been on hand . The fact that we 've got two additional surveys makes it more conclusive to me in terms of what I believe the level of useage to be . Scott : Yeah also too , just to let you know the DNR has got aerial surveys . The Ag Department has got aerial surveys and then there 's some other things and once again , we make recommendations to the City Council so follow the issue . But if you can determine other compelling evidence to support your position , it needs to be presented at the Council . Batzli : I would just say that I think that we 've been evidence that the survey is wrong regardless of which side you listen to , probably . And so I don 't like to look at the survey in this instance because on one hand we have lakeshore owners saying that there were 1 or 2 or 0 and on the other hand we have evidence that says there was 8 . So I would prefer not to look at the survey in this instance and chaulk it up as , at that particular _ moment there might have been 3 but that probably wasn 't the number that was there on a more consistent basis . That would be my rationale for wanting to vote 8 on this issue . Is there any other discussion? Scott moved , Farmakes seconded that the Planning Commission recommend that the City Council approve 3 boats be allowed to be docked overnight at the Colonial Grove Recreational Beachlot . All voted in favor , except Batzli and Ledvina who opposed , and the motion carried with a vote of 4 to 2 . Batzli : Thanks very much for coming in . When will this go to City Council Kate? Aanenson : August 9th . Batzli : August 9th . Cliff Whitehill : I would ask everybody to be there . Also, get an estimate on what the decrease in your property value is going to be . Thank you . ( The Planning Commission took a short recess to let the room clear . ) Planning Commission Meeting July 21 , 1993 - Page 16 PUBLIC HEARING: JMS DEVELOPMENT FOR A PRELIMINARY PLAT TO SUBDIVIDE 7.1 ACRES INTO 12 SINGLE FAMILY LOTS ON PROPERTY ZONED RSF , RESIDENTIAL SINGLE FAMILY AND LOCATED SOUTH OF PLEASANT VIEW ROAD , WEST OF TROENDLE CIRCLE , EAST OF PEACEFUL LANE AND NORTH OF LAKE LUCY ROAD , TOWER HEIGHTS . Public Present: Name Address Julius C . Smith 7600 France Avenue So , Minneapolis Jonathan Smith 7600 France Avenue So , Minneapolis Jim & Mary Stasson 6400 Peaceful Lane Holly Broden 640 Pleasant View Road Mary Meuwissen 6580 Troendle Circle David Beddor 1050 Pleasant View Jeff Schoenwetter JMS Development Kelby Bailey 6580 Pleasant View Way Linda Barck 960 Lake Lucy Road Rodd Johnson 1061 Lake Lucy Road Bryce & Shelly Fier 1040 Lake Lucy Road Teresa Schrempp 1041 Lake Lucy Road Karen Green 1021 Lake Lucy Road Sharmin Al-Jaff presented the staff report on this item . Chairman Batzli called the public hearing to order . Jeff Schoenwetter : Good evening . My name 's Jeff Schoenwetter . I 'm with JMS . I don 't have a lot to say . We , my staff and I were in this morning . Met with your staff . Sharmin 's report was conclusive that Lot 13 is being modified to conform with staff 's report . The cul-de-sac is going to grow 10 feet . And we are working through staff with the issues regarding tree preservation and reforestation of the site . Otherwise the plat 's very straight forward and conforms and I 'm here simply to answer your questions Thank you . Batzli : So you 're in agreement with all of the conditions as they 've been modified tonight? You 've seen the staff report? Jeff Schoenwetter : Absolutely . Ledvina : Mr . Chairman . I have a question . Do you feel that the trees can be preserved with little difficulty or how do you see that physically happening on the site? Jeff Schoenwetter : We don 't view that as a major issue . The trees that are mature and most desireable on Lots 12 and 13 , through a variety of methods will be saved . Some ways are grading plan contemplates a small retaining wall along the road at one point . Where the grade , where there are fills in the toe of Lot 12 , the mature trees would be boxed at the bottom . And then a few of the trees are unavoidably in the roadway . We contemplated a center island system for the entrance which really is not ideal engineering but would create an interesting entrance . We 're looking - at that in lieu of cutting those trees down . If we do our reforestation Planning Commission Meeting July 21 , 1993 - Page 17 program will address the number of caliper inches lost and what type of replacement we would have within the plat . Ledvina : Thank you . Jeff Schoenwetter : Thank you . Batzli : Is there anyone else that would like to address the Commission on this issue? If there is , please come forward to the microphone and give us - your name and address . And/or who you 're here on behalf of . Daryl Fortier : Howdy . My name is Daryl Fortier with Fortier and _ Associates . I 'm here representing Frank Beddor and the Pleasant View Homeowners Association . I 've asked to bring up several issues and try to keep the Nez Perce alignment as a separate issue , and we ' ll try to trend lightly on that if I can and deal just with the plat . First we would note - that this plat does increase the traffic off Peaceful , I 'm sorry . Off Pleasant View Road and we believe that 's needless . Pleasant View Road is a substandard street . It has severe problems of traffic . Where this traffic will be discharged is at the intersection of Peaceful Lane and Pleasant View Road and that 's the location of a rise . It is somewhat of a blind situation and there have been head-on collisions at that location . It is not a good access point . The next thing we 'd point out is that we , I have been commissioned to do a tree survey and as staff points out , there is very substantial tree loss on the north side of this site . We have not seen the specific grading plan and we 're pleased that there 'd be a - retaining wall to save some of the trees but our estimate is that there is at least 300 caliper inches that will be lost . Batzli : I 'm sorry , how many? Daryl Fortier : At least 300 caliper inches that would be lost . That number is our best estimate based on field measurements . The existing points to this plat for access are to the south off Lake Lucy Road , Outlot B I believe it 's called and also off the existing Peaceful Lane . Peaceful Lane is really very much lower than the remainder of the site and any - access to Peaceful Lane will result in the sort of tree loss that is presently being proposed . As you see by the plat that 's being projected , the topography on the north side and on the west side is really reasonably _ steep and that is also where most of the trees are . Most of the mature trees are oaks and maples and basswood . Similarly staff is showing , and the developer is proposing connecting Tower Heights Road I believe it 's called , to the extension of Nez Perce . Batzli : Sharmin , can I interrupt you just a minute? Sharmin , can you use your highlighter and this map is kind of bad . Just show the connection to _ Nez Perce and then Peaceful so there 's a different color up there . Thank you . Go ahead . Daryl Fortier : The light blue color that Sharmin has put on would follow Peaceful Lane existing and tend not to enter the present Owens ' property until it reaches his driveway . That would be more similar with alingnment 8 in the feasibility study which would mean that the extension of Nez Perce would intersect at a 90 degree right angle and that Peaceful Lane would be Planning Commission Meeting July 21 , 1993 - Page 18 the thru street connecting Pleasant View . We believe that such an alignment , that is alignment B would mitigate the traffic impact on Pleasant View Road and of the two , the homeowners and Mr . Beddor have always favored alignment B and we have been opposed vigorously to alignment A . Alignment A is the sweeping curve that you see shown in pink . And as _ you see , Tower Heights Drive intersects with that at a 90 degree angle such as Nez Perce becomes a thru traffic street . And we are of course opposed to that because it introduces more traffic and encourages people to use Nez Perce to a greater extent . Again I don 't want to dwell too much on that issue but this assumes Nez Perce is going to be constructed . The next thing we 'd like to point out is that the access off Lake Lucy Road by contrast results in the loss of only 3 trees . One 8 inch elm , one 10 inch _ ash and one 8 inch ash tree . The grading along Lake Lucy Road , as you can readily see from the contours , is much more gentle . Much more readily attained . This slope does not require a great deal of grading and there 's very minimal tree loss . Same number of lots can be developed for the owner- and the traffic is out onto a road which is presently in full conformance with the city ordinances and standards . It also has rapid access onto County Road 17 and does not come out at a curve or a rise in the road , which are both known traffic hazards . The previous City Council , Planning Commission , planners , engineers from the city staff , as well as the developer and myself when I was present and involved in the Carver Beach planning , agreed that Outlot B was the logical location for access to the Owens site . That has no longer been considered seriously by staff because of the controversy and the involvement with Vineland , Troendle and Owens regarding Nez Perce . But we would certainly request that it be looked at more dispassionately and that you consider the merits of access to the south as opposed to access to the north . Again we would point out that there 's a loss of trees to the south of only 3 small trees . All under 10 inch whereas to the north there is a loss of over 20 trees . Some with diameters of up to 30 inches . The grading on the south can be 5% or 6% . The grading on the north can be brought up to 5% or 6% only with substantial grading and retaining walls . And finally we would bring up to your attention that this was previously planned and approved and supported by city staff , engineers , City Council , Planning Commission and the developers when Carver Beach Estates was originally planned . Thank you . Batzli : Let me ask you a question . I attended the City Council meeting and they said Nez Perce was going to go thru . Daryl Fortier : Correct . Batzli : In a nutshell . Are you proposing that we take a look at not connecting this to Nez Perce , even though it 's going to go through , or maybe or maybe not but that we reconsider it even though the City Council said it 's going to go through? Daryl Fortier : That 's correct . I 'm asking you to look at this plat and say , let 's assume Nez Perce is indeed constructed . Is this still a wise way to develop this property? Our opinion is not . It is not a sound way to develop this site . Batzli : Okay . Thank you . Is there anyone else? - Planning Commission Meeting July 21 , 1993 - Page 19 Rodd Johnson: My name is Rodd Johnson . I live on Lake Lucy . The issue I would have , as has been all along . I hear trees and I think it 's insanity in that if you bring it out the other way there 's 31 kids now in 18 homes - on that strip and so now you 're going to put all that traffic on and that 's what City Council went over and has twice said this is the way it 's going to go . I think that from our standpoint , from people on the road , the 5% grade is at the beginning but you could have a 12% grade going up which staff has already shown in their reports on that issue . We 're in favor of JMS doing this development just the way that it 's shown in green now . Batzli : Okay , thank you . Is there anyone else? Renelle Albrecht: I 'm Renelle Albrecht and I live at 6581 Nez Perce Drive - and you know I understand that the street 's going through and I would like to just point out that there could be two stop signs that when you 're doing the road you should take this into consideration . That there are 31 kids _ on Lake Lucy Road and there are also a lot of kids on the Vineland Forest Addition . That two stop signs , one placed where Nez Perce Drive turns into Lake Lucy Road . That could become a 3 way stop where it 's presently just a one way stop going onto Lake Lucy Road . And making where Nez Perce would - go onto Peaceful Lane , making that a 90 degree stop so that there would be a stop sign . It would increase the safety in the area tremendously . It would make it not a thoroughfare . It would make people stop and go slowly through the neighborhood . And I think it would satisfy the residents of both neighborhoods by just putting in a couple stop signs . Thanks . Batzli : Thanks . One moment before I ask someone else to come up . Dave , we 've had a couple of comments regarding the slope and stop signs and stuff . Do you want to address that? - Hempel : Certainly Mr . Chairman . The one access as Mr . Fortier has indicated as a viable one through to the Lake Lucy Road from the proposed subdivision is a 50 foot wide outlot . It 's been deeded to the city . It 's not dedicated public right-of-way . Where currently both lots adjacent to this outlot have been built on , both homes do not meet setbacks if a roadway was to be put in there . In addition , site grading or the road grades would probably dramatically impose grades , boulevards and so forth to be extended out onto these properties as a result of it . I 've been through this scenario many times and we 've had a feasibility study done on the previous roadway alignment on Nez Perce and that 's been the elected - route for servicing the Art Owens parcel . Batzli : What about the traffic issue onto Peaceful Lane and then onto Pleasant view and the probably addition of stop signs . Hempel : The installation of stop signs do require a traffic evaluation to be performed by usually the city 's engineering department . We have certain - criteria or warrants that have to be met for the implementation of stop signs . Stop signs are not intended to control speed . They are to insure a safe flow of traffic through the intersection . By placing stop signs where they 're not warranted may breed disrespect for actual other stop signs that maybe are very warranted and people have a tendency to roll through them or ignore them when they 're not warranted and has caused false impressions of other intersections . The other thing is , studies prove that placement of Planning Commission Meeting July 21 , 1993 - Page 20 stop signs for speed consideration doesn 't do the job . It actually makes that individual feel like he 's behind time . Has to increase speed through the neighborhood to make up that time . You also have an added burden of air pollution . Additional stopping and starting noises at intersections sc stop signs are placed very carefully . You always hear the concern for children and streets and so forth and we do have a number of residential areas in the city that are all in the same situations . We do have concern for children 's safety obviously but you have also traffic warrants to follow . Batzli : I think Mr . Fortier eluded to a sight line problem though . Turning from Peaceful Lane onto Pleasant View . Have you taken a look at _ that? Hempel : There currently as it exists right now , there 's a large sweeping radius onto Peaceful Lane from Pleasant View and is not a good intersection . As a part of the Nez Perce extension , that will be modified to be a right angle intersection to correct the problem that current exists at that intersection . Scott : So you 're talking about Peaceful Lane meeting Pleasant View Road at a right angle? Hempel : That 's correct . Right now it 's a large sweeping pavement area . Batzli : But it 's coming up a hill and I think around a slight bend there . That 's the sight line I 'm talking about . Hempel : That 's correct , yeah . Batzli : And that will be alleviated by , or mitigated by this? Hempel : It will be adjusted , yes . In conjunction with the roadway - improvements out there . Batzli : Okay . Let me get back to you . Is there someone else that would like to address the Commission? I know I had several people standing up . Yeah . Sharon Rogers : My name is Sharon Rogers . I live at 6500 Nez Perce . I agree with what Renelle said . No matter , I mean a stop sign is going to be better than , and a little bit of noise of people accelerating is going to be better than having your child hit . So I agree that we should try to come up with some safety things like that . I live right on the curve , can you put that other map up again . I live on the curve where Nez Perce comes down the steep hill , by Renelle 's home , and it curves around and I would also request a curve sign and a lowered speed limit . No one can go across that curve at 30 mph . People have tried but I think that that is necessary as well as some stop signs . Also I know that , you may ignore this comment but I would like to see another feasibility study done since the last one was done like 4 years ago . And we weren 't there and many other residents weren 't there and I would like to see that just our residents have some consideration . As far as we 're concerned right now Vineland Forest wasn 't - on the map at that time and I would like to see that being considered . It Planning Commission Meeting July 21 , 1993 - Page 21 hasn 't been considered at all . And we haven 't been , our voices haven 't been heard from that area . So not only the safety issues but we have other issues that we would like to have heard before any of these . Batzli : Are you proposing that we do a feasibility study for the traffic safety or to extend Nez Perce? Sharon Rogers : All of them . Batzli : Thank you . Hempel : Mr . Chairman , if I could clarify . The feasibility study was prepared April 13 , 1992 for City Council consideration for the first - consideration of Nez Perce . Again , this issue has already been debated . The official mapping has been approved . There will be an updated feasibility study that will address assessments to the project . Batzli : Okay . Would anyone else like to address the Commission? Why don 't we get this gentleman here . He 's been pre-empted several times . Go ahead . No , please . Julius Smith: My name is Julius Smith and I 'm an attorney who represents Frank Beddor and many of the homeowners on Pleasant View Lane and some of - the other streets involved , and I ' ll make this very short . We would request that a determination by the Planning Commission on this plat be tabled because of a couple items . First of all a petition meeting all the _ Statutory requirements has been filed with the Minnesota Environmental Quality Board requesting an Environmental Assessment Worksheet involving this area be done by the city . And since the plat is impacted by that request , feel that it would be premature to act on that . The City Council , as you know under the Environmental Rights Act , has 30 days to react to this request and according to the Environmental Quality Board rules , no final action can be taken by the City pending a final review of this request . So it just seems reasonable that the City shouldn 't act until the environmental matter is settled because the plat , the change in the shape of the plat may very take place . And further , this matter should be tabled because the plat proposed includes land not owned by the developer in that the access road includes land owned by a third person , Mr . Beddor . No arrangement has been made to acquire that property , or to purchase that land . The developer has land abutting a public road . He has access to a - public road over land next to a public road and also land owned by the city which was required by the city when the plat of Carver Beach Estates was adopted for access to Owens property , the so called Owens property , or the _ platted property . And it seems that you really can 't justify condemning land for private party access where the access already exists . There 's a real question of legality of the condemnation if it 's for a private person 's benefit . Now the city made some comment about well let 's just comdemn all of Mr . Beddor 's land but if we do not claim any severance damages , you haven 't got any right to do that . You can condemn Nez Perce if you wish and what you need for Nez Perce but the lots that are remaining - south of Nez Perce and north of Nez Perce , unless you can prove a public necessity , you 're going to have a hard time condemning it . No public necessity has been shown in this matter . It hasn 't been litigated and nor has any condemnation proceeding by any public authority been initiated . Planning Commission Meeting July 21 , 1993 - Page 22 Now the staff report says , the staff report that you have , says that this plat can 't be done anyway until next year so it seems that there would be nothing lost by tabling this matter at this time . We think action at this time would be premature and there are many questions that need to be answered before adequate consideration can be given to this plat as presented . And staff just indicated that another traffic study , or I should say a feasibility study would be done on Nez Perce and I would hope that instead of just an engineering study , which is all they 've done to date , which says we could feasibly build this road , that this study would include an environmental impact aspects , traffic study and a fiscal impact . Thank you very much . Ledvina : Question . Regarding the Environmental Assessment Worksheet , what are the issues , the environmental issues that are at hand that you see? Julius Smith: The removal of all the trees off Mr . Beddor 's land . Or a lot of trees . Many of them . There 's some questions about water quality and the pond on his land . There are all kinds of impacts , environmental impacts involved here and those are some of the questions we 're raising with the Environmental Assessment Worksheet . Scott : Excuse me . I see , I 'm trying to reconcile what I have with what we have here but there is something that 's designated as Vineland which looks like it 's to the east of this particular development . I see that Mr . Beddor owns a section of land abutting Christmas Lake to the north of Pleasant View and could you help me understand which pieces of land Mr . Beddor owns south of Pleasant View . Julius Smith : Mr . Beddor owns this piece right here . The road from these two lots being platted cuts across his land . Scott : Okay so he owns , it looks like outlot , is it Lot 5? Julius Smith : It 's Lot 5 . Scott : Okay . Julius Smith: That 's this one right here . Scott : Alright . Julius Smith: He also owns this and this . Scott : I 'm sorry , I missed that . Julius Smith: These two and then he owns these . Scott : Okay . Julius Smith: That 's about it . Batzli : Thank you . Would anyone else like to address the Commission? - Planning Commission Meeting July 21 , 1993 - Page 23 Mary Stasson: Good evening . My name is Mary Stasson . I live at 6400 Peaceful Lane and the diagram that 's up there before you right now is not really an accurate diagram because if Sharmin would point to our property , the corner of Pleasant View Road and Peaceful Lane is a big wide , 125 foot sweeping corner that . . . It 's definitely not a 90 degree turn as shown there . We built on our property 7 years ago and 6 1/2 years ago I met with - Jim Chaffee who was the Safety Commissioner of the City at that time to talk about this corner . The Pleasant View Road , Peaceful Lane corner . Jim agreed with me that the corner is dangerous and should be squared off to allow us easy access to our driveway . Since that time we 've been told by the city that the corner will indeed be squared off and this will be done when the developer 's start to build and Peaceful Lane is upgraded . We have also been told by the City that existing homeowners will not have to pay - for this road upgrade . This Nez Perce connection adds to our safety problems because of the increased traffic . It also depreciates the value of our property and we hope that as the city looks at the alignment of this road , that it doesn 't have any more impact than how the road is already aligned out . We hope that this isn 't coming up into our yard in any way . We built on a quiet , dead-end road which accesses only 3 homes so this is a _ clear depreciation of the value of our property . Since the city has made the decision to extend the road through and now has a proposed development for 13 homes , we hope that the city stands by their word , especially since we have nothing to gain by this proposal and everything to lose . And also - my husband had previously asked to be involved in the road alignment and we have also been told by the city that the name of our street is to remain Peaceful Lane because of the expense involved in changing everything over to Nez Perce . Thank you . Batzli : Thank you . Would anyone else like to address the Commission? Is there a motion to close the public hearing? Ledvina moved , Harberts seconded to close the public hearing . All voted in favor and the motion carried . The public hearing was closed . Harberts : What I understand the action we 're to consider tonight is the approval of a preliminary plat to subdivide 6 . 1 acres . Pardon? Batzli : 7 .1 . Harberts : I read it wrong . Batzli : You read it right . It was a typo . Harberts : Okay . I understand there is some legal issues in terms of ownership but I don 't understand that to be an issue before us tonight . I 'm sure that that 's going to be an issue between the developer to take _ care of that . I understand there 's some safety issues and I would understand that the public safety then would address that . The last issue that was just brought up though about the name change , staff points in the report that it 's going to be changed to Nez Perce Drive , is that correct? Al-Jaff : Correct . Harberts: That 's what I understand in your report here . Planning Commission Meeting July 21 , 1993 - Page 24 Al-Jaff : Correct . And that 's something that would take place at the time of the extension . Batzli : Pardon . Just a moment . Yes sir . Jim Stasson : We had an agreement with the Mayor and the City Council that that wouldn 't change . That it 'd still be Peaceful Lane . Harberts: That might be something they might want to forward , probably when this is forwarded to the Council then if that 's an issue . Batzli : Yeah . Al-Jaff : This is really not something that you would be voting on at this point . It will take place at the time of the extension of Nez Perce but it 's a recommendation . Harberts : I just wanted to make sure . . . You know again going back to consistency , what we requested was tree surveys or tree inventories to see what the impact was to a particular property . Is that coming? Al-Jaff: The applicant submitted a survey that showed the existing trees but not what will be removed and really that doesn 't satisfy the needs . - Harberts : Right , because I think we 've created with the discussion kind of the threshhold of having that inventory so we can see exactly what the impact is and I think that was one of the issues so I would certainly want to see that as part of the recommendation that are forwarded , if indeed that 's what the action is tonight . And as I understand the developer is okay with the rest of the recommendations . Al-Jaff : Correct . Harberts: With regard to that frontage road on Lot 13? Al-Jaff : Correct . Harberts: I guess one last comment . I would tend to , I 'm still kind of unclear with myself in terms of moving an approval with this simply because we don 't have that tree inventory . I recall one of the projects it did make a significant impact to us on the Commission so I would really like t< see that . I guess I would just say that I think with any community there 's always an opportunity for development and that developer certainly has the opportunity to do it and we 're here at the city and citizen advisory group to try to insure that that development is done in a way that benefits the overall community and I know that 's my reason for sitting here . But I think it 's just a reality of life that people have the opportunity to develop land in a way that then meets the codes . So with the exception of the tree inventory , I really don 't have any problem with the plat itself . I know Matt has a little it more expertise in the area of grade so I 'm - interested to hear his comments on that . But I 'm comfortable that we 've got competent staff that will insure that the safety issues are taken into account . My own personal view is that I like to insure that there is no _ question in terms of public safety and I think that would also extend to Planning Commission Meeting July 21 , 1993 - Page 25 - making sure that all streets are named in such a way that if there is an emergency , that there is no problem in terms of finding the location . And I 'm guessing that public safety has reviewed the name change and if they are in approval with it , I would also then be recommending that the name = change follow that of public safety department . Batzli : So you 'd like to see this passed along? You don 't think of it as being something that you 'd like to table and have it come back with either the lots shifted or . Harberts: I 'm a little concerned about the number of trees . You know I 'm just recalling the one plat we did . I guess I would certainly bow to staff if they feel comfortable with working with the developer . I think we 've set the threshhold . They certainly have a strong indication of what we see or what we feel so I guess in conclusion I wouldn 't have any problem pushing this forward with those recommendations then . - Batzli : Okay , thank you . Ladd . Conrad : I would like to see it come back . I would like to see the tree survey . . . I think the issues , all the issues it looks like they 're on the table . Many of them addressed but the trees , and especially Lot 12 and 13 , I don 't understand yet . I think in the staff report , the staff report was pretty strong on Lot 12 and 13 . Yet in the motion , in the recommendations - by the staff , it 's not quite as strongly worded there and just a footnote for staff . I think in the staff report they talked about a garage being taken down . Didn 't see that in the recommendations at all and whether you - want that there or not . It is in the staff report but I didn 't find it . Batzli : Isn 't that number 18? Harberts : Yeah . Said it was . . .concurrent . Conrad: Okay . If it 's taken care of , my mistake . So the only issue I have with this right now would be the tree loss and I don 't have a grasp of that . And the other thing I don 't understand is , Julius brought it up . The Environmental Review Board . I don 't understand what that is and what impact that has on this particular plat . Al-Jaff : We received a request this afternoon so we haven 't had time to really review it . We 've skimmed through it and basically it points out that there is a wetland north of the site and this could be impacted . This is not a wetland , it 's a pond and it 's also that we 're going to move a large number of trees and we 're trying to address this issue . But like - I said , we haven 't had time to review all of the issues and until we have time to look at it , I apologize . I can 't answer all the questions . _ Conrad: That 's my only comment and I think , if there are other members of the Commission that would like to see this back , I 'd sure support that . I think if you feel it should move forward , that staff has a grasp like Diane felt , I 'd sure listen to that too . But my . . . is take a look at what 's - happening in terms of vegetation . Planning Commission Meeting July 21 , 1993 - Page 26 Batzli : Yeah . Well , that would be my direction also . Let 's at least get some comments from the other commissioners here and see if they concur at — all . Matt . Ledvina : Okay . I 'm just going to kind of take it from the top on my list _ here . With the land swap with the city for the water tower , no issue there . A-okay . Al-Jaff : No . Ledvina : Okay . I just wantedto make sure . Al-Jaff: What we 're proposing is that we sell the land rather than just swap it and if Dave has any additional comments . Hempel : I don 't . Ledvina : Okay . And then a question for Dave . Mr . Johnson mentioned a 12% grade . I thought our ordinance was 7% . Is this a variance that we 're looking at here or , on the roads? Hempel : I guess I was unclear where the 12% was referred to . The street grade proposed with this development is 6% . Ledvina : Okay . So there are no 12% grades on the streets associated with this plat? — Hempel : That 's correct . Ledvina : Okay . I didn 't see that either . Let 's see . I guess generally as it relates to the tree survey , I 'm also uncomfortable because I think we as a commission have seen that some really substantial positive changes can be made to plats when we know where the trees are and we can identify them and work around them . If you don 't know where they are , you don 't know what you 're losing or saving . And I think that 's critical so I guess I would support Ladd and Diane on that point certainly . As far as the request— for the Environmental Assessment Worksheet , I don 't know . Sharmin you indicated that the area to the north of the development that appears to be , it 's a low spot . Is that a wetland then or no? _ Al-Jaff : No it 's not . It 's a pond . Ledvina : Okay . That 's a pond and then to the east of the development , or — northeast , is that a wetland area? Scott : That 's that huge pond that 's just adjacent to CR 17 . Al-Jaff : I believe that 's a pond again , isn 't it Dave? Hempel : It does have a storm sewer controlled outlet . It does have wetland characteristics over time that have taken over the pond site but it has been a low depression for a number of years . Batzli : Is that mapped by the city as a wetland? Planning Commission Meeting July 21 , 1993 - Page 27 Hempel : That 's something we 'd have to verify . To be honest , I don 't know on that . Al-Jaff : Again , we only received the request this afternoon so we haven 't had time to look it over . Ledvina: Okay . And it does appear that some of the development would , or may increase runoff in that direction so I think that 's a legitimate issue . In terms of the water quality . Let 's see . And as far as access . Dave , have you any thoughts on the access from Lake Lucy Road and I guess we talked about it real briefly but you indicated that there were a couple of problems with that proposal or that potential alternative . Hempel : That 's correct . There currently is two , the lots adjacent to the Outlot B which is a 50 foot strip of land that 's deeded to the city as a part of the Carver Beach Estates . There are two homes built on each one of the lots that are , you can 't see the dimensions on there but I believe one 's 27 and one 's 28 feet which . Al-Jaff : 25 feet . Hempel : 25 feet set back from the property line . The garage on the properties I don 't believe are situated . The road was put through at that point . The front part of the kitchen , the bedroom side of the house would be right there on the corner as well . Grades through there , I won 't say they couldn 't be done . They 're probably looking at a 10% grade with significant filling probably at the bottom , or cutting . One of the two to get your landing into the Lake Lucy Road . Again , all these issues have been looked at over the last 4 years for servicing this whole area . Ledvina : Okay , thank you . I guess then in general I feel that although the overall concept for the development is reasonable , I think there are some outstanding issues here that we should see it again . Batzli : Okay , thank you . Joe . Scott : The other commissioners have covered the things I wanted to talk about but one thing , personally I will vote to table any development that does not have a tree inventory . That 's all I have to say . Batzli : Okay . Jeff . Farmakes: I 'm not going to repeat Matt 's comments . I back him up on what he said , in particular the Lots 12 and 13 . I think also that the City should be sensitive to the neighbors comments , whether they 're reasonable or unreasonable in regards to public safety . I don 't always agree with the _ criteria that we use for judging public safety . I think we should be more sensitive to citizens concerns in regard , in explaining how that criteria is arrived at . Speed limits and so on . That 's the extent of my comments . Batzli : I agree with that . I think it makes sense to most lay people that the stop sign will slow down traffic so it 's something that we always talk to you about and you insist that it doesn 't do that but it just seems to — make sense to me and others in any event . On condition number 19 , Sharmin . Planning Commission Meeting July 21 , 1993 - Page 28 The City may sell a portion of the water tower land to the developer . I 'm assuming that this can 't go through the way we 're looking at it unless the City does in fact sell that land . Is there a reason that we chose to put in the language may? Al-Jaff : We can rephrase that . Batzli : What I 'm really getting at is I think the condition has to reflect that ( a ) , the plat that we 're looking at , it is not in fact a land trade because we normally include the plans . So that we 're talking about land which is going to be purchased from the city and I don 't know , you know the whole deal appears to me to be contingent on that . Among other things . But go ahead . What were you going to say . Al-Jaff : The City shall sell rather than . Batzli : Well I don 't know if you shall do it or not . I mean I don 't know but that 's my point is that , have we agreed on a price and this is all going to happen or is this . Al-Jaff : No . Batzli : We 're burning it up with attorney fees negotiating? Al-Jaff : What we were thinking is we would have it appraised and then try and agree on a price . Hempel : Mr . Chairman , previous discussions here this morning with the developer , to be honest I was not privy to the idea of selling or trading _ until I looked at the plans I guess . Discussions further though , the City would be open to negotiations for selling part of the property to the developer . We 're not interested in trading property and the developer is well aware of that . As far as setting a fair land values to that small parcel of land . If we were to have an appraiser do an appraisal of the property , the appraisal would probably cost more than the property would be worth so we will negotiate a sales price based on previous purchases of single family property within the city . Batzli : Okay . I had agreed with Ladd 's comments . I think there 's several issues that we need to look at . One , I 'd like to look at , I 'd like to make sure you guys look at the sight lines . At the connection between Peaceful Lane and Pleasant View . To make sure that in fact there is a decent sight line there because that is a dangerous intersection and we 're going to be - putting more traffic on it by making the connection as proposed . The tree survey is I think an issue . Water quality impact on several of the ponds here appears to be an issue . Custom grading and/or moving the lot lines on Lots 12 and 13 appears to be an issue that we want to look at as well as the language of the land sale so I think there 's several things that need to be cleared up . I think there 's a lot of concern in this area and so I think rather than just passing it on , I think we should handle it here at - the Planning Commission before we pass it on and listen to the residents concerns to make sure we 're taking those concerns into account as we make the decision . Those are my comments . Is there a motion? Planning Commission Meeting July 21 , 1993 - Page 29 Conrad: I make a motion that the Planning Commission table planning case 93-12 SUB , Tower Heights Addition until staff can bring back those items that Brian just mentioned . But primarily a tree inventory and addressing - some of the environmental concerns that are related to it . Batzli : Is there a second? Scott : Second . Batzli : Any discussion? Harberts: Was the developer informed that a tree inventory was needed? Required . Al-Jaff : Yes , and he submitted one . However , it doesn 't show . When we overlap the grading plan over the tree plan , we basically concluded that _ the majority of the trees will be removed and that 's why we 're requesting that the applicant looks at this again and develop a better plan basically . That 's why we were looking at Lot 13 and saying , the conditions , if you look at the conditions . It would reflect that . We 're basically saying - that the trees will , I mean condition number 6 . Looks at grading issues and tree preservation easements . That 's the reason why we put those conditions there . Harberts : Does staff feel that they , you know based on our former discussion with other plans Sharmin , do you feel that the staff understands the threshhold in terms of what our expectations are for a tree inventory - and preservation and conservation easements? Al-Jaff : Yes we do . Harberts : Thank you . Batzli : Okay , any other discussion? Conrad moved , Scott seconded to table Subdivision Request #93-12 for Tower Heights Addition for further review and information to be brought back to the Planning Commission . All voted in favor , except Harberts who opposed , and the motion carried with a vote of 5 to 1 . Batzli : And your reasons for opposing? Motion carries . Harberts : I guess it has a matter to do with the process from my perspective . I certainly welcome the information . It 's of interest . Tree inventory , I feel personally is a staff function . And I have confidence in the staff skills that since they understand and have a feeling for what our expectations are , that they will follow through with it . That 's really a - personal perspective . And I certainly , like I said earlier , I 'm kind of torn but with regard to process and cost and things like that , I guess I . . . trust staff 's skills . Batzli : Okay , thank you . Any idea when this will be back before us then in view of the issues that you have to look at and come back to us? Planning Commission Meeting July 21 , 1993 - Page 30 Al-Jaff : We could bring it the second meeting in August . Aanenson: That 'd be the 18th . Batzli : 18th of August? Okay . Thank you very much . Harberts : I have a question . With that EAW , there could be an impact of when that comes back to us or even just in terms of what the opinions are from the attorney , is that correct . . . Batzli : Okay , thank you very much for coming in . PUBLIC HEARING: HERITAGE DEVELOPMENT TO SUBDIVIDE 37 ACRES OF PROPERTY INTO 57 SINGLE FAMILY LOTS LOCATED ON PROPERTY ZONED RSF , RESIDENTIAL SINGLE FAMILY AND LOCATED NORTH OF KINGS ROAD AND WEST OF MINNEWASHTA PARKWAY . Public Present: Name Address John Dietrich RLK Associates Scott Morrow & Cindy Houle 3980 Stratford Ridge Kevin Cuddihy 3900 Stratford Ridge Keith Bedford 3961 Stratford Ridge Bill Naegele Jr . 4001 Stratford Ridge Terry Labatt 3981 Stratford Ridge Sue Morgan 4031 Kings Road - Linda Scott 4031 Kings Road Jerry Kortgard 3901 Glendale Drive Daryl Kirt 50 Hill Street Harold Taylor 3861 Stratford Ridge Lowell & Janet Carlson 4141 Kings Road Dave & Margie Borris 4071 Kings Road Peter Miller 7161 Minnewashta Parkway Kate Aanenson presented the staff report on this item . Chairman Batzli called the public hearing to order . John Dietrich: Good evening Commissioners . John Dietrich from RLK Associates . We are the engineers , landscape architects representing Heritage Development who is the applicant for the proposed preliminary plat . The plat that is before you tonight was submitted on June 7th with the intent of looking at the 37 plus acres for 57 unit single family development . Based upon the information we had at that time in terms of right-of-way and layout of Kings Road and access requirements , we 've prepared this plat in order to meet the necessary utility access and drainage requirements according to Code . We realize there are 9 lots , as Ms . Aanenson indicated that are insufficient in square footage . We feel we have the ability to shift those lot lines . Minor tweaks more or less in order to gain the proper square footage for the 15 ,000 square foot lot and the 20 ,000 square foot lot within the Lake St . Joe , 1 ,000 foot setback . Planning Commission Meeting July 21 , 1993 - Page 31 The plat as presented is premised on all access coming off Kings Road and Minnewashta Parkway with the developer proposing to construct the roadway up to the first lot into the site . From that point west the Heritage Development would be petitioning the city to construct the Kings Road in this proposed location for a 429 process and completion of the road in 1994 . The issue of park and park dedication , we have looked at the site and the significant stand of trees on the site are at the northwest corner . We feel that is the appropriate place for the park dedication based upon the negotiations which were underway with Ms . Hallgren on her property at the time this plat was submitted . We were working on the premise of looking at the park eventually in the Hallgren area . That 's why the park dedication is at the northwest corner of the site . We intend to provide all ponding and storm sewer calculations as necessary in order for the city staff to have a comfort level with the proposed development and we would be willing to look at not developing that one parcel that is indicated south of Kings Road with a homesite so that that parcel could be utilized as a _ storm water retention pond . Secondly , the Outlot C which is between Minnewashta Parkway and Lake Minnewashta would be proposed to be turned over to the City for public purposes . We would appreciate your consideration of this preliminary plat development and I 'm available to answer questions in regard to it . Batzli : Thank you . We ' ll probably have some questions . Do you have one now Matt? Ledvina : No . Batzli : Oh , okay . Would anyone else like to address the Commission? Peter Miller : I 'm Peter Miller . I live at 7161 Minnewashta Parkway . I 've read the staff report and I strongly agree with the recommendation of the Park and Recreation Committee to put the park on the intersection of Kings Road and Minnewashta Parkway . It seems to be a much better site for a park to provide athletic facilities and things that are needed in that area . Batzli : Would anyone else like to address the Commission? Margie Borris : My name is Margie Borris . I live at 4071 Kings Road . I 'm that little piece in the middle on the west over there . We had a meeting with some of the people that live on Kings Road on Monday and some of the things that we were concerned about is , as our deeds read we own the property with a , our 's reads 33 foot easement for the people that live on this road . Okay , it is like you say , it is not a public road . You 're looking at 57 plots and if you say there 's 2 cars per household , which is average , that 's 114 cars of new traffic . There 's a lot of concerns about the traffic flow . When they 're building this little addition . Everybody is in favor of you getting your tax money . The developer 's making a profit but we also would like some consideration in this because we have been there . We pay our taxes just like everybody else does and we 're going to be more inconvenienced than anyone else there . The fiasco that went on with Minnewashta Parkway this last year was incredible . If you lived there or had to use that road , you had to spend an extra half hour somewhere or another with your traffic during the day . If you could get by . There are a certain amount of DNR questions that we have about what is going to be Planning Commission Meeting July 21 , 1993 - Page 32 draining from these drainfields that already exist in this area and how that is going to drain into Lake St . Joe because there 's an under water tile system that goes under Kings Road and there 's 3 other tiles that drair into that . We also were wondering , where are you going to put all this equipment when you 're building this . Where are you going to park this equipment? How are we , who live on Kings Road , going to get to and from - work? What are some of these things that nobody is telling us about? Where are you going to stash that equipment? And we have no idea , how lon9u do you think you 're going to tie up this road? What are you going to do? _ Nobody has asked us anything . I think we , on Kings Road feel that a main road off Minnewashta Parkway , on that lower section there , that is right off by the lake . On the northern farthest part of that , that doesn 't go into Stratford but where this should come out of the developer 's land . Not— our 's . He 's making the profit and you will still get your tax dollars . That 's just some of the things we discussed . I don 't want to be the only one up here . Batzli : Thank you for your comments . Is there someone else that would like to address the Commission? Linda Scott : My name is Linda Scott and I live at 4031 Kings Road and I understand you have the letter that I wrote and as you 've seen , my concerns are . First of all I value Lake St . Joe very much . It 's a lake where a beaver lives . There 's a deer trail that goes through our yard . There 's incredible water foul that happens and lives there and we do have drainage that comes right across our property from the fields across the road and I am somewhat concerned of how that drainage , once there 's houses there , wil: impact the wildlife on the lake . I am very much against having the city pay for the road for development , which means we get assessed . We have all moved out there . Happy with our septic systems , our wells and our dirt road and if the developer wants to put in houses , I feel that he should pa; for the road . And also because of the concerns of the road , I think all of us want to make sure that whatever property we own , does not get taken away- from us for the purpose of improving the road . Thank you . Batzli : Thank you . Jim Andrews : Hello . I 'm Jim Andrews . I live at 7014 Sandy Hook Circle . I 'm also on the Park Board and I just wanted to voice my concern and really disapointment in the developer to ignore recommendations to locate the parl- at Kings Road and Minnewashta Parkway . I think this particular park is one that as a city we 've been looking to locate in this area for many , many years . In fact we 've had a fund set up for the 6 years that I 've been involved with the Park Board and I think it 's existed at least 3 or 4 years before that . To acquire property in this area . And the intent was to serve a very park deficient area with a very much a showcase neighborhood sized park in an area that definitely needs the service of a park . I thinr- to locate it on the northwest portion of this property does not allow good access to the property . Does not provide easy access to the property owners who have been there the longest that have been waiting for this park- and arrand I think sort of include a park in coordination with another property owner at this time who is not yet offered or indicated an interest to sell their property , in my opinion is pie in the sky . This has been a problem _ we 've come up with as a Park Board over and over again . Is development Planning Commission Meeting July 21 , 1993 - Page 33 property being proposed showing a park located not on the actual plat being considered but somewhere next door , maybe happening at some other time . And it puts us in a perpetual problem of whenever that next parcel comes up , if it 's not large enough . Not coordinated properly , we again end up with an area that 's inferior . Too small and doesn 't offer us the flexibility we need . So again , I would hope that the commission would follow the Park Board recommendation and stress that the park be located where it was originally proposed . Scott : I guess that 's the thing with the Ziegler property location? Jim Andrews : To be honest , I don 't have my papers with me . It 'd be in the southeast corner . Scott : Southeast corner . Jim Andrews: Correct . Scott : You 've had discussions with them and they 're willing to sell the property to you guys? Jim Andrews: We have not gotten to that point at all , no . Scott : But they 're entertaining it . Jim Andrews : Yes . - Lowell Carlson: My name is Lowell Carlson . I live at 4141 Kings Road and they were just saying about this 6 years that they waited for , or 9 years that they 've waited for this park . Where were they at when Leach 's Resort was sold? It was one of the perfect spots if you ever wanted a park put anyplace but I didn 't see nobody jumping in the frying pan over that deal . Because the swimming beach and everything was there . It was all set up . It couldn 't have been no better and right on the lake would have been desireable . But nobody did anything about it then . I mean they left it to go down the tubes and now all the townhouses and everything come in there and so on and so forth . And then I don 't know about the developer . If — you 've checked property lines or if you have , the city has on Kings Road that , do I got to , to get their square footage for each and every lot that there are little lots for their development , do I got to furnish part of my land to do so? Because my property runs on the other side , on the north side of Kings Road . So unless that road is changed , moved over to the north because my property is clear on the north side and I think you should check them records and they 've been there when we 've been to Court on it years back on it . And that 's pretty well stabilized as far as my property line but I don 't think that I should furnish any property for a developer to come in there and use up part of my square footage on my property to get - enough for his also . I mean I don 't know how you guys are looking at this thing but . Batzli : Aren 't you on the south side? Lowell Carlson: Huh? Planning Commission Meeting July 21 , 1993 - Page 34 Batzli : You 're on the south side right? Lowell Carlson: Yes , I 'm on the south side . I think you should take a real good look at where that property line , because that road is so crookec and so out of kilter there and it was I guess at one time was a cow trail or a horse trail or whatever it was when they just drove wherever they wanted to . But anyway , like I said . It isn 't wide enough and so on and sc forth but I don 't think I 'm going to furnish them any property to get their square footage out of their lots . I 'm going to be saying that for sure . But thank you . Batzli : Thank you . Marvin List : Marvin List . I represent Keith Bedford who lives at 3961 Stratford Ridge and Bill Munig who lives very near Keith . I don 't have his address . Two real quick points on this . One from a common sense standpoint and one from a legal standpoint . From a common sense standpoint we have 37 plus acres that are proposed to be developed and we are disrupting landowners to the north and the south in terms of having to take portions of their property to provide access to this 37 plus acres . It doesn 't even make any sense in the world to me to do that . There 's ample , ample opportunity within that 37 acres to provide access over the owner 's property . Not to take it from adjoining parcels . Which leads to the second issue from a legal standpoint could very well have problems in trying to condemn on the north and the south as to purpose and necessity issues . And some of the damages that would be incurred by those people I think would be very , very great . The woman who spoke a little bit earlier proposed I think exactly what Keith Bedford and Bill Munig believe is the only proper way to do this and that is if this development is to go forward , you would have access from Minnewashta about in the middle of the development into it that way . There 's no reason to acquire and disrupt adjoining owners and take their property and incur significant damages to them . It doesn 't make any sense when you have the kind of acreage that we - are developing here . So from a common sense standpoint and from a legal standpoint , the access that we 're talking about is something just ludicrous is probably a good word . Secondly , the developer indicated that the access primarily will come in off of Kings Road . I 'm not sure that 's true . I think you have a good deal of access coming off of Stratford Lane to the north which is going to cause a lot of problems to those people up in that area . So again I think the access should be in the middle of that area . Not to the north . Not to the south and there 's no reason to disrupt the adjoining owners . Thank you . Batzli : Thank you . Margie Borris : Do you want somebody to point it out on the map? They look confused . Scott : Kate , I 've got a question . It 's up in the Stratford area . That area 's developed? Aanenson: This is a public street to this point . These people enjoy the use so Mrs . Hallgren can have access to her 's so they have like an alley _ they 're using as a back entrance to their homes . Planning Commission Meeting July 21 , 1993 - Page 35 Scott : Wouldn 't we have about 3 parcels , actually we 'd have 6 parcels that would have roads on both sides? _ Aanenson: Well these people have roads on both sides too , and that 's not uncommon to have double frontage lots . Scott : It isn 't? Okay . Aanenson : These people have double frontage right now . . . Resident : But that doesn 't exist . Aanenson: But we see this Country Oaks , you know and the intent is to tie neighborhoods together . Resident : But he is right . People are going to be coming off of Highway 7 , are going to hit that Stratford Ridge rather than drive that extra distance . . . it 's going to work both ways . Batzli : Thank you . Marvin List : Again , that 's private property to the north that would have to be acquired to accommodate what they 're talking about . — Aanenson: This portion . Marvin List : That 's correct . . .common or legal sense . Batzli : Okay . Would someone else like to address the Commission? Sue Morgan: My name is Sue Morgan . I live at 4031 Kings Road and I just have one question for the City Engineer . We were led to believe that the City of Chanhassen did not want another street coming directly off of Minnewashta Parkway , is that correct? And if so , why? Hempel : That 's correct . Accesses off of a collector type street I believe as in the ordinance is limited to , correct me if I 'm wrong Kate , quarter mile . Aanenson: Yep . Hempel : Along Minnewashta Parkway so it is desireable to limit access onto a thoroughfare type street . It only makes sense from a traffic engineering standpoint to utilize existing entrance points which are spaced appropriate along the Parkway . Sue Morgan: Are there exceptions to that? Hempel : It is City ordinance I believe of the Subdivision regulations . I 'm not aware of any that have been done in the last 5 years since I 've been here . Sue Morgan : Okay , thank you . Planning Commission Meeting July 21 , 1993 - Page 36 Kevin Cuddihy: Kevin Cuddihy at 3900 Stratford Ridge . Not to reiterate any points so I won 't send them back . I think that the developer would realize , if he went back to the traffic studies that were done last year for Minnewashta Parkway itself , that they would find that quite a bit of the traffic coming down Minnewashta Parkway is coming out of , more traffic is coming actually out of the Highway 7 entrance than the Highway 5 entrance . Therefore , coming to this neighborhood they wouldn 't be using the Kings Road access . They 'd be coming in the other way . Second of all , _ I think notification of the entire Minnewashta Parkway homes I think shoulc be very key here in the park discussion because it was discussed heavily during the Minnewashta Parkway rennovation project that they would develop a bike path/walking path that would be accessible to a park and I think you 'd find the Park Commission and the City Council recognizing that this whole area on Minnewashta Parkway is in desparate need of a park . And to try to cram it back into a corner where no one 's at just seems ridiculous . And I think the opportunity on the southeast corner is the opportunity there is to run an additional road into that new development adjacent to a park area that should be where it 's been talked about . And not try to hide it into the back corner with limited access for all the people on the Parkway that expect to use that park . So thank you . Batzli : Thank you . Would anyone else? Is there a motion to close the public hearing? Conrad moved , Scott seconded to close the public hearing . All voted in favor and the motion carried . The public hearing was closed . Farmakes : First of all , I ' ll make my general comments about this layout . I don 't like it . I think that from a monetary standpoint it 's pretty obvious— why those big lots are going up by the lake . And the very small lots get smaller as you work your way back . In particular , up in the corner . Where 's the north direction on here? It 'd be the northwest corner? Lot 7 13 and 6 I think are pretty poorly put together . I don 't mind the issues of access that are being discussed here . I think that they 're consistent with what the City 's direction is . To connect neighborhoods , not to isolate them . I would support the staff 's recommendations . . .and again , I - hope that we occasionally see development beyond the minimum requirements . In this case , even less than the minimum requirements except where a developer 's going to make a few dollars at the expense I think of the surrounding area . I certainly think that there 's no justification for cashing out on those front lots with what they could do with that piece of property and it does have potential for being a park area in the front and do with a few less lots here . Scott : I 'd like to see this tabled based on the staff recommendations and some other things . Predominantly the park location , lot size within the — 1 ,000 feet of Lake St . Joe . That 's my thoughts . Batzli : Well you 've proposed something different from what the staff is proposing which is recommending to deny . Scott : Oh , deny . Excuse me . Planning Commission Meeting July 21 , 1993 - Page 37 Batzli : You raise an interesting point and that is , if we table it is there something that can be worked out or has city staff basically , are we even at . . .at this point with the applicant . And I guess I 'd ask the applicant as well . If it looks like we 're going to deny it and move it along to City Council , would you prefer that we table it so that we can maybe iron out some of these issues and not have to deny it? John Dietrich: Based on the issues that are on the table , we would prefer a denial and I think the park issue is going to play a major role and that is going to probably be the driving force as to how this plat eventually will become developed . As well as the right-of-way locations and access . Batzli : Okay . So those are positions right now that you 've basically got your heels dug in that this is how we want to do it and you 'd rather see it denied all the way up than try and resolve something? John Dietrich: Correct . Batzli : Okay . Matt . _ Ledvina : Well I think there 's been a lot of good discussion on a lot of issues here and if this does come back in some form , I think the Minutes should be closely reviewed to account for many of the good points that have been made . Something that I would just like to say , as far as the grading plan is concerned . You know I recognize that the topography is pretty difficult but , and there may not be a lot of trees to save , spare the northwest corner that we 've talked about . But on the other hand , we 're essentially grading all the developed area of the project and I don 't think that 's a desireable base to start from . We want to keep our landforms in Chanhassen to some things that resemble the past and I think that 's a _ reasonable thing even when we 're developing subdivisions . So other than that I would support the denial of this plat as proposed . Batzli : Okay . If I can butt in before I go to Ladd here . As far as drainage of this parcel , where is it all going to go? Hempel : The parcel is divided into basically two different watersheds . _ The westerly 1/4 of it drains towards the city of Victoria . There 's a wetland area along the westerly border of the development . The remaining 3/4 of it does drain southeasterly , eventually to Lake St . Joe and a small portion of it to Minnewashta Parkway . Batzli : Is there some sort of plan to do some sort of , did I miss some sort of NURP ponding or something? Is that in your report? Hempel : Yeah . Upon review of it , we felt there was inadequate on site ponding proposed . They had proposed I believe two small retention pond areas but for 37 acres of land is nowhere . Aanenson: That was number 8 , reason for denial . We felt , as we did with the Boley , we had the pre-treatment ponds before they go into Lake St . Joe . And this we felt was inadequate proposed on-site drainage . Planning Commission Meeting July 21 , 1993 - Page 38 Batzli : Yeah . That was in , okay . And that was in Dave 's number 10 . Is there additional water coming across the parcel from other areas into Lake _ St . Joe? I mean is this our last best hope to try and treat water going into Lake St . Joe? Hempel : The runoff for this parcel , I guess we haven 't looked at other adjacent parcels south of Kings Road . But based on the topography and the vegetation along there , I 'd seriously doubt that there 's a large enough area capable of supporting a ponding basin to deal with water quality - issues . Runoff from this 37 acre parcel . We will definitely need a number of water quality ponds on the development to control both quantity and quality of the water which goes to Lake St . Joe . Batzli : Well Lake St . Joe 's designated as a natural environment lake , or non-recreational use , whatever we categorize it as . It seems to me that if we 're going to protect the lake from development around it , we need to do pretty serious look and maybe have our water quality Bonestroo people take a look at the effect of development upstream from this parcel and this parcel as well as those sandwiched inbetween . Because otherwise we 're going to end up developing it piecemeal and each time we 're going to say well we don 't have enough space and nothing 's going to happen other than we 're going to get some pretty bad runoff into Lake St . Joe , it seems to me . Ladd . Conrad: I basically don 't like what I 'm looking at . . .pay attention to the staff 's recommendations . There 's no reason I would entertain this . A - question for Kate though . Access seems to be a big issue , especially with the residents here . I keep mulling around . I believe the staff report , and I really don 't know if this is the staff 's opinion or if staff is trying to work with the applicant and make it work or help it work . And Dave maybe you can jump in . If you had your druthers on this whole parcel , and the parcels to the south and the undeveloped parcels to the north and you have two accesses , Stratford and King 's are potential , is this where - you 'd you in a perfect world , is this where you 'd put them or would you tin to gerryrig them around a little bit? Hempel : I think the stage is set out there with the existing homes , existing roadways . The location where it enters the Parkway are desireable . The sight lines . Not to say that maybe another access inbetween would still not uphold the sight line concerns but we get into the access points along Minnewashta Parkway . Conrad : The proposed park by the developer on the northwest corner has a - stand of trees . Are these worth saving? Aanenson: Yes . Yes , they are . We asked for a tree inventory . One wasn 't _ provided but based on just the site visit we feel it is a significant stand . Conrad: I sure would like to see one when the applicant makes another proposal . And again , letting the applicant know that tree preservation in that , if the park is shifted . I 'm still interested in preserving trees in that area . Last question Kate , our ability to get a park in particular - location within a plat . What is our ability to do that? Usually Planning Commission Meeting July 21 , 1993 - Page 39 developer 's go and usually staff say we ' ll negotiate that . It typically has worked . Here 's a case where it hasn 't and what 's the city 's ability to say , you have to have it here? Aanenson: Well I think part of the issue on this is preference in the fact that we 're obligated to make this park happen . The city 's obligated to buy a large portion of the park and obviously there incentive is to make sure that we do that in a timely manner and so they 're pushing this through to make that happen . We feel that it makes the most sense to make that happen . That the Council feels like they 're not willing to support the dollar cost , then it dies and they do their thing but staff believes that we 've got the support of the Administration and the Council to see this park go through . Conrad: And I guess I don 't understand . The proposed park in the southeast corner , based on the Park and Rec recommendation , is that entirely contained within this parcel? Or is it outside of it? Aanenson: Correct . It 's all inside . Conrad: It 's all in there . And that has always been , okay . No more questions . Batzli : Okay . Diane . Harberts: I 'm going to go along with the staff recommendation and to move denial . I have to agree with your comment , I think it was Dave made in _ terms of the limited access onto Minnewashta Parkway . From my perspective , and in the type of job that I 'm in , you limit access because then it 's easier to control traffic flow and when you have this type of development as well as some open other land in terms of development , I think those - should be some key issues . And I won 't ask a lot of details from staff . I ' ll chat with them at some other time but I guess , you know I have a real strong feeling , and I don 't know all the in 's and out 's so again I ' ll _ certainly talk with staff at another time in terms of , if it 's priority to limit access onto Minnewashta Parkway , why aren 't we aligning then the road , comments from the people I thought were well taken about through the center . You know Country Oaks . You know I 've received comments how that 33 foot trail or road or whatever would certainly make a nice access point to the proposed park . So since it 's being denied , like I said I ' ll follow up with staff because there may be some other issues that I 'm not aware of . But I think overall my real sense of denial of this is going along with staff is simply because it doesn 't seem to be a very friendly development for the community , for the city , for the residents . And I think that 's _ what we ask the developers , we ask of anyone is that we all work together the way that it is again benefit the community . It 's not unheard of , of when the developers and the people that are affected , sit down and chat . See if there can be some kind of compromise that people can live with . You know people understand I think that the land 's going to develop . People own it . They have the opportunity to do it but I think from a developer 's perspective , they have to work with us too as well as the people because we 're the ones that are going to live here . So I would just encourage them . You know it 's too bad , from my perspective , and I 'm sure there 's reasons the developer rather would go ahead with the denial rather than a Planning Commission Meeting July 21 , 1993 - Page 40 table but I guess when I see a plat come through , I hope in the future again that it 's a real friendly development and I question , and again I ' ll _ check with staff , how a development can cause the city to buy land that disrupts people , other people 's land when I would also concur that shouldn 't the developer bear that cost as part of the development . And again , I ' ll just simply defer to staff at another time . I 'm sure there 's - reasons why and I ' ll follow up with them on that . But I think the overall basis here is just help us develop our community . We want to see the development occur but help us do it so it benefits everyone and that everybody is happy because there are people that are going to live here fot a long time . That 's it . Batzli : Okay . I only have I guess two things to add . One of them is extension of Stratford Lane . And also Kings Road . I 'd like to get a clarification and then the other is to note to Dave that in fact it was in there and I missed it about the drainage . But it 's interesting that it ma;- also impact the City of Victoria based on their grading and I think as a friendly neighbor to Victoria , we should let them see what we 're going to dump across the city lines there . Stratford Lane , we 've had several letters from people that would like it extended westward and maybe a bone of contention that we 're avoiding here by what we 're about to do . But fror., a planning perspective , it sounds like staff is comfortable with extending that . I mean is that something that we 've looked at in great detail? Aanenson : If the park doesn 't go in this area? Batzli : Yep . Aanenson: Then your access is Startford Lane . That 's the only way to _ access it . Not only that , you have to look at the other , Mrs . Hallgren ha to have access to her property and somehow we need to look at that in the overall planning because she 's got a large piece up in this area here . Again , while we envision Country Oaks . Batzli : Headla and Hallgren . Aanenson : Yes . We 've met with Mr . Headla and he will probably get access off of the extension of this , coming this way . Again , he can split maybe get 5 lots or something off there . Maybe more . He would need access to _ his property . Again , it 's be not the city 's desire to have direct access again . So you have to look at the larger picture . Not this development but there 's a few other developments that can happen in this area . We did lay out some tentative streets , how this whole thing can come together but - two streets need to still be connected and that 's Country Oaks Drive and Stratford . Again , it was always the city 's intent for that street to go through . That 's why there 's a 50 foot access there for a public street . _ Not just to serve just those few homes up in there . Batzli : Where , Stratford Lane you 're talking about? Aanenson: For Stratford Lane , correct . Batzli : On the Kings Road , on the map that we 're looking at . The 33 feet - Is that? Planning Commission Meeting July 21 , 1993 - Page 41 Resident: That 's the entire width of the road at the widest point . Batzli : Is that currently reflected on our map as being owned by the piece being developed or is that the current location of the road on the nearby residents? Aanenson: That 's what we 're saying . We 've surveyed that there 's 20 to 23 feet . Where it falls within there , that 's one of the reasons why we 've asked for it to be tabled. We 're not sure by right of use , based on the fact that we 've maintained it for a number of years , where we have right to be on that property . Batzli : Okay . Well I understand from our City Attorney that we have the right to improve that road , wherever it may be . Aanenson : Exactly . Batzli : And so the issue is really , we 've got to figure out where the heck the road is . Aanenson: They need to show us on the plat . Where it is and where we need to pick up additional property to get 60 feet which is our desire for that road . Batzli : Okay . Okay . And would we normally require that the applicant survey it to figure out where it is and what , is that normally done by the applicant? Aanenson : Yes . Batzli : And the applicant has not done that yet? Aanenson : Well we just learned of this as we went through the process . We were all under the assumption that it was a 30 foot right-of-way . Batzli : Okay . Hempel : Because one of the property owners had mentioned that their title shows a 33 foot wide easement . Private . Batzli : Right . Well , regardless of what that shows , and that can be an issue of contention . I don 't mean to dismiss that from the people who raise that because that 's a serious issue but on the one hand we 're hearing from our attorney that we have the right to use that and improve that . They can contest it and they should if they think we 're taking too much but we don 't even know how much we need to get from the north because we don 't know where the road is at this point . Hempel : That 's correct . Batzli : Okay . Those were all my questions . Unless there 's any other discussion , I 'd entertain a motion . And even after a motion I 'd entertain discussion , what the heck . Planning Commission Meeting July 21 , 1993 - Page 42 Scott : I move that we deny Case No . 93-11 of the preliminary plat to subdivide 37 acres into 57 single family lots . Batzli : Is there a second? Harberts : Second . Batzli : Discussion . Would you like to include as part of your motion , the additional information and issues set forth in the staff report , numbers 1 - thru 6 as reasons for denying? Scott : Certainly . Batzli : As a . Scott : Friendly amendment? - Batzli : Well , I don 't even know if I can friendly amend but if you 'd like to amend your own motion . And the second would accept it . Harberts: I will . Batzli : Is there any other discussion? Scott moved , Harberts seconded that the Planning Commission recommends the City Council deny the request for Heritage Development , Subdivision #93-11 for the following reasons: 1 . The plat does not reflect the Park and Recreation Commission 's recommendation for a park to be located in the southeast corner of the site . 2 . There are 7 lots that are deficient in minimum lot size requirements . - 3 . A tree survey needs to be completed for the northwest corner of the site . - 4 . Road right-of-way on Kings Road needs to be field checked and shown on the plat to determine if any additional right-of-way is required . If _ additional right-of-way is required , the lot sizes will be affected anc will have to be modified . 5 . The three lots with access to Minnewashta Parkway must be redesigned tc— have access via an internal street . 6 . Provisions for storm water ponding must be provided on site . All voted in favor of denial and the motion carried. Batzli : Thank you very much everyone for coming in . When does this go to - City Council? Aanenson: August 23rd . PUBLIC INFORMATIONAL MEETING: DISCUSS THE NORTH ACCESS BOULEVARD PROJECT . THE PROJECT ENTAILS THE CONSTRUCTION OF A 2 LANE BOULEVARD BETWEEN POWERS BOULEVARD AND HWY 41 ON THE NORTH SIDE OF HWY 5 . THE BOULEVARD WILL BE AN EXTENSION OF WEST 78TH STREET AND IS DESIGNED TO SERVE LOCAL TRIPS AND POTENTIAL NEW DEVELOPMENT . IT IS ANTICIPATED TO BE A JOINT PROJECT BETWEEN THE CITY AND MINNESOTA DEPARTMENT OF TRANSPORTATION . Public Present: Name Address Lee Kerber 1620 Arboretum Blvd . Jay Dolejsi 6961 Chaparrel Lane Teresa Bentz 7280 Galpin Blvd . Marlene Bentz 7300 Galpin Blvd . Jeff & Tami Braiedy 850 Western Drive Deborah Porter BA Associates Jim Andrews 7014 Sandy Hook Circle Tim Keene Representing Mills Fleet Farm Stuart C . Mills Jr . 512 Laurel Street , Brainerd , MN Chris Dietzen Representing Mills Fleet Farm Tom Green Mills Properties , 512 Laurel , Brainderd , MN Mike Gorra 1680 Arboretum Blvd . Brad Johnson 7425 Frontier Trail Kate Aanenson presented the staff report on this item . Chairman Batzli called the public hearing to order . Diane Harberts left the meeting at this point and did not vote on the remaining items . _ Deb Porter : What I ' ll do , to try and make this a little more brief is rather than go through the entire document , which some of you are more familiar with than others who are on the task force . I hope you 've had a little bit of time to look it over but I think a better way to go over the impacts is to look at the summary table which is page 14 . Table 6-1 in your document . I also have some single sheet copies of that table here . Kate , if you want to just pass them along either to the Commission members or other people who are interested . What this table is is a summary of the impacts that we felt were more quantifiable in terms of physical impacts and some cost issues with the Alternative 1 and 2 corridors and our crossovers . The task force has been looking at this now for a couple of different meetings and what we 've added here to this table then in the last column that you can see is the preferred alternative . We 've also quantified that for what the task force has recommended as Alternative 1 plus the use of the crossovers A and C . It also will involve just a short segment then of Alternative 2 and I think Kate will also pass out the graphics that we have where we have the preferred alternative shaded in a dot pattern on those graphics . I think in terms of the degree and type of impact that we 're looking at here for either alternative , and the preferred alternative is identified by the task force is really minimal in terms of the length of the project of 2 1/2 miles . In my experience I haven 't come across a project where we have this little wetland impact or flood plain encroachment considering that we have two creek corridors and a number of wetland basins through the project area and I think that 's mostly due to the fact that during the preliminary engineering phase , and also just the Planning Commission Meeting July 21 , 1993 - Page 44 design concept of this roadway being curvalinear , that we were able to avoid a lot of the more significant natural features . Even the wooded areas , primarily as you see here on your table . We identified 4 major sites of vegetation . The more mature wood lots . We tried also to avoid as much encroachment on those as we could so I think this will be something the regulatory agencies , the Department of Natural Resources , PCA , Pollution Control Agency , and the federal agencies , Corps of Engineers , Fish and Wildlife Service , I think they ' ll be very pleased to see this little impact considering that you 're building a completely new roadway through a community . So I think that 's a credit to the project . Also , in terms of the overall impacts , Alternatives 1 and 2 have nearly a mile of common alignment anyway from Powers Blvd . to approximately Audubon Road is the same . We also have some other short segments that are a common alignment between the two so that 's the reason why you don 't see a great deal of difference in the amount of impact between the two alternatives . In terms of flood plain encroachment , we have anywhere from as little as just over half an acre of encroachment of our Alternative 2 , to a maximum of 1 .3 acres for Alternative 1 . The same for vegetation and wetlands . We have really just a minimum amount of acreage that we 're impacting . We also_ quantified the noise level increase . If you read through the document you saw that a decibel increase of 3 decibels or less is really inperceptible to most human hearing capabilities so again , we 're looking at very minimal impact there . In terms of relocation . The four homesteads that would be - affected are the same for both Alternative 1 and 2 and the preferred alternative . It 's primarily the 3 homes that are located within the Lake Ann Park area and one more residence just east of TH 41 there . So those - properties will be impacted no matter which alternative was chosen . In terms of right-of-way acquisition , the actual number of acres needed for the roadway . Again , is very similar for each alternative corridor . Even _ looking at additional acreage in terms of purchasing buffer area and where that comes into play is primarily on the south side of Alternative 2 . Between Trunk Highway 5 and the alternative . We took a look at that and for Alternative 1 , including buffer areas it would be about 42 .7 acres we - estimate . For Alternative 2 , 46 .5 approximately for additional acres . Foi our preferred alternative , it 's a little over 40 acres of total right-of- way acquisition including buffer areas . We took a look at what we call a generalized dollar value for the type of land parcels that would be affected for right-of-way acquisition . Again the total dollar cost that we come up with here is actually very similar between the two alternative corridors . We also added here for the preferred alternative . The price seems to drop down just a bit and that 's because we have just a few less remnant parcels that crossovers A and C allow us to have less effect on those two homesteads . So that brings the right-of-way acquisition cost down a bit . The estimated construction cost again stays right within that range that we 've identified since the beginning of the project . Between 2 to 2 1/2 million for this roadway . So I guess I ' ll open it up to any questions you might have during your review of the document or the task force discussions during the last couple of meetings . I think Kate identified primarily the reasons , the supporting reasons why the task force identified the preferred alternative as Alternative 1 with crossovers A am- C . Also , within the document under Section 6 , let 's see it 's page 12 I think we 've listed 7 or 8 different reasons as to why the task force made the recommendation that they did . And again it involves things like avoidance to some of the farmsteads , or homesteads in the area and I think Planning Commission Meeting July 21 , 1993 - Page 45 because the environmental impacts are so similar between the alternative corridors , that didn 't seem to be a deciding factor in this project , and I don 't think that it should be . It 's primarily I think what the task force had envisioned as the roadway character and the type of development that they want to see on either and both sides of the roadway . It really didn 't come down to , as it does on many projects that I work on , we 're looking at in other projects a significant difference in the number of wetland acres or other issues that you 've discussed tonight . Vegetation impacts and so on but that doesn 't seem to be the case with this particular project . It really rests on more of the future land use development scenarios that you 're looking at in this part of your community . Are there any questions on any of the impact analysis? - Batzli : I think what we 're going to do is open it up for public comment and then maybe start asking questions from the Commission . If we can do it that way . Deb Porter : Okay . _ Batzli : This is a public hearing . Is there anyone else that would like to address the Commission? Jay Dolejsi : My name is Jay Dolejsi . I live at 6961 Chaparral Lane . I - own the property west of the minature golf course and east of Mills Fleet Farm , that goes around the group home . I would like the Commission to consider the southern route through my property . One of the things that I think that 's not being addressed here are the future residents . They 're kind of an unrepresented constituency . By putting this road through the northern part of my property and dividing it , you 're going to in essence divide the neighborhood . You were talking earlier about trying to unite neighborhoods and the city as a whole has been working to mitigate the dividing factor of Highway 5 with the new pedestrian crossing and such going through the community . This is really going to divide those — communities there . The southern route also would allow extra buffering of noise and pollution from the impact of Highway 5 and provide more safety for the local residents . I think what the Commission needs to weigh is the _ value of perhaps a more attractive boulevard against the safety and welfare of the future residents in that area . Also putting the road closer to TH 5 is going to give you more control in the buffering design and the visual impacts along Highway 5 which is what my understanding was the Highway 5 - task force was tasked with . To develop the Highway 5 corridor and not this northern boulevard . Also on my property , because the property slopes deeply towards the road , it would give an opportunity to minimize the impact on the landforms as far as the buffering that the task force is recommending along Highway 5 . Putting in the southern route also would result in no impact through the mature tree stands that the northern route currently will be going through . The southern route also would cost considerably less . From the understanding of what was said in the task force , the State is willing to participate 80% if the southern route is chosen and only 50% to 60% of the land cost for the northern route . Also - the southern route would result in much less severance damages to the property as far as leaving a larger , more developable parcel . Through my property there was not going to be any need for any more collector . . . because just north of it is a large wetland so it 's really a relatively Planning Commission Meeting July 21 , 1993 - Page 46 small area that this boulevard would service . And as far as the break of the density in that area , this is kind of difficult for me because that 's in the '95 study area and we don 't know what it 's zoned for . What 's going to be happening out there . I know they 've made recommendations but that 's not very clear either . And one other point in , one final point is I thought it was rather interesting that when this road was being proposed , no mention of a northern route was suggested for the city owned property through the park . It seems to me that all the benefits to having the road bordering the Highway 5 to the park would be the same to these other parcels and all the reasons for the northern route through the private tracts of land would equally apply to the city park . Thank you . Batzli : Thank you . Would anyone else like to address the Commission? Tim Keene : Chairman Batzli , members of the Planning Commission. My name is Tim Keene with Larkin , Hoffman , Daly & Lindgren , 7900 Xerxes , Bloomington and I 'm here this evening on behalf of friendly Mills Fleet Farm . I just want to make a couple points and keep it brief . We have been participants since 1988 throughout an extensive planning process , including_ initial discussions regarding the Mills Fleet Farm on the northeast corner of Highway 5 and 41 . An approximately year and a half comprehensive plan update and subsequent to that now we 're going onto our second year of the TH 5 corridor planning task force . And being participants and cooperative and actually preparing some site plans and engrossments of how that site would work . We were at least a little troubled when the initial engrossments of the road alternates came out because they run right through- the middle of the site . They ignored your consultant , Mr . Morrish 's study that showed a facility compatibly located on the site and if I could walk over to the exhibit and just make a point . Batzli : Sure . Tim Keene : The subject property is about thusly and we have identified on - the city 's resource map a wetland resource in the southwest corner . Through the center here there is a tree stand that the task force and staft has made it very clear that they 'd like to see that stand preserved . The _ alignment as conceived and currently the subject of the environmental assessment really slices right through the middle , either alternative of what is left of the developable portion of the property . We asked our civil engineer to generate a road alignment that wouldn 't quite so drastically affect the development . . .property and we submitted on June 9th an alignment plan with actually two alternates . Both of them working off this point . One swinging the frontage road up to the northern boundary anc- the other swinging the frontage road , nicking the northern , north edge of this tree stand but still preserving the integrity of the stand itself and avoiding any contact with the wetland resources . Those road alternates that we offered were also submitted to the project engineer for the Department of Transportation to give that engineer an opportunity to reviet those for geometrics and although we haven 't had a formal response , it 's our understanding that the geometrics conform to the design requirements o' the parameters set forth throughout the rest of the corridor . We don 't want to suggest we feel picked on but the location of the road alternates that are the subject of this environmental assessment really do profoundly limit the development potential of the property . We will be offering for Planning Commission Meeting July 21 , 1993 - Page 47 the record the exhibits that we did prepare and submit to the June 9th meeting . And with that I 'd like to introduce Stuart Mills , the President of Mills Fleet Farm . Thank you . Stuart C . Mills Jr . : Planning Commission . My name is Stuart C . Mills Jr . I live in Brainerd , Minnesota at 512 Laurel Street . Our family has been in - Brainerd since the 18th century . We 've been local business people there since the turn of the century . We stand on our integrity and our reputation . We are a family company . The company is owned by my brother - and myself . My brother 's name is Henry C . Mills II . After Hank and I got out of the Korean War we came back and in 1955 , the spring of '55 we started Fleet Farm stores . There were only two employees and that was Hank and myself and we started . Our first store was 4 ,000 square feet and today our largest store is 250 ,000 square feet and we have 4 ,500 employees . This was done by hard work , and by having a lot of loyal employees and in the communities we 've been in , we stand on our reputation and we are in good - standing which we can have recommendations from all our communities to present to you and in just about all of the communities they have invited us to come in because they felt that we were asset to their community . We _ are different than any other store . There is no competitor we have and we bring people to the community . We feel that we are an asset . We acquired this property out here because we felt it was an ideal location for a Fleet Farm store . It 's a very good commercial location for us with 41 running south across the Minnesota River and number 5 running west into the farmland . We get both city and farm business and since 1988 we have been attending several meetings with the Chanhassen people and we have been - cooperating fully and made ourselves at any time to work with the city . This summer the task force proposed a frontage road adjustment , an alignment , an environmental assessment document . The two alignments that are under consideration disect the heart of our 50 acres that we have planned of having a Fleet Farm store . Obviously it ruins our property and we do not feel that this is in the best interest of the community of Chanhassen or ourselves and in due respect we really would like to cooperative with you and see if we can get our development going . I thank you . Batzli : Thank you . Chris Dietzen: Mr . Chairman , members of the commission , my name is Chris Dietzen . I 'm also an attorney with Larkin-Hoffman appearing for Mills Fleet Farm . My task is to make our formal record. I will be brief . When Mills Fleet Farm purchased the property , prior to purchasing it they met with representatives of the city , including the City Administrator and the — Mayor and talked to the city about the proposal and received encouragement from the city and a statement that the city would cooperate . In reliance on those statements , Mills went ahead and purchased the property and has _ engaged in a lot of time , a lot of energy and a lot of money to work with the city with respect to this property . As you 've heard from Mr . Keene , and from the owner of Mills Fleet Farm , the proposal would go through the heart of the property and would destroy it 's commercial development which the owner at the time of the purchase had a reasonable investment backed expectation as to how that property would be used and how the city would cooperate in facilitating that use . In order to accommodate the city 's - wishes , the owner of the property proposed an alternate that would allow Planning Commission Meeting July 21 , 1993 - Page 48 the alignment to go through the property in two different ways and still allow the development potential of that property . We have submitted that _ plan that shows those two alternatives , Mills Fleet Farm Alternative 1 and Alternative 2 , which I will shortly be making part of the record . It 's our belief that those plans meet all engineering requirements and that they meet the reasonable requirements with respect to the use of the frontage - road as it goes through that property . As we see the evidence that we have heard from , we are not aware of any rational basis for the city to oppose either of those two Mills Fleet Farm alternatives . We are concerned , and - we have the impression that the only basis for the city 's refusal to consider those two alternatives and to formally study them in the EAW is to respond to business owners in the Chanhassen are that are trying to protect their business . We do not believe the concerns of business owners or neighbors are a valid basis to destroy the property interest of Mills Fleet Farm . We don 't think that there is a reasonable basis for the City Council to refuse to consider those alternatives . In conclusion , it 's our belief - that the evidence is , supports the conclusion that the environmental assessment is inadequate because it does not consider and does not study Mills Fleet Farm alternatives 1 and 2 and that if the city intends to proceed with those two proposals as set forth in the EA , that it would result in a total taking of the Mills Fleet Farm property for which the city would be required to pay it 's fair market value as commercial property . We , Mills Fleet Farm , believes that they are compelled to make formal record of their position . They would like to cooperate with the city , which they have been trying to do for many years but they feel that they are forced to do that . To make their record at this time and with that we do have a copy of the plans and a letter that we want to make part of the record Mr . Chairperson , if I may . Batzli : You may . Thank you . Is this the original , Tim? Tim Keene : That is the original . . . Batzli : Give this to Kate so I don 't lose it . Chris Dietzen : We request that that be made a part of the record . Thank - you very much . Batzli : Well we may as well hear a few more comments before we . Does anyone else wish to address the Commission? I guess it was just wishful - thinking that that was it huh? Mike Gorra : Gentlemen , my name is Mike Gorra . I live at 1680 Arboretum . - Southwest corner of Lake Ann . I have approximately 150 acres . I 've lived there for about 17 years . I guess I would have to agree with the other landowner that spoke a little earlier that I don 't really agree with the _ pick of the northern route there and would prefer the southern route . Not just because I 'm a landowner but for other reasons which I 'd like to explain briefly here . I think the property , you don 't have to be a genius to take a look at that map and see what that northerly route would do to _ any piece of property . It disects it in two . That road 's going to be heavily traveled . What 's it going to do to the potential development . It 's going to make it tough to plan any intelligent development with the - road like that running right through the center of the property . Especiall) Planning Commission Meeting July 21 , 1993 - Page 49 when you 've got an alternative route that can be run to the south along Highway 5 . What 's going to happen with , if you do decide on the northerly route , it 's going to relegate that property to just kind of a boiler plate — type development . High density to the south . Medium density and then residential to the north . Now you can find that anyplace . Richfield , Brooklyn Park . Is that what Chanhassen wants or does Chanhassen want an _ opportunity . That 's probably one of the nicest pieces of undeveloped property left in Chanhassen . You 've got Lake Ann . You 've got that little Riley Creek . You 've got a lot of access on Highway 5 . Everybody going in and out of Chanhassen is going to see that . I would think they would want the best possible potential development to be addressed in that area and not just a boiler plate type . I also think that the taxpayers would be better served with the southerly route . At the last coalition meeting - somebody stated that MnDot would participate with 80% if the alignment was run to the south . And would only participate 50% if the northerly route was chosen . I think that 's kind of significant . Any private development _ would take that pretty serious . Also the city I think would be better served , and I think it was explained before by other people that we thought it was the original intention of this Highway 5 coalition to consider the Highway 5 route . Not go 500 yards to the north . I always thought it was the whole idea to kind of beautify Highway 5 and they can do that . If they pick the southern route , they ' ll have more land to berm . More land to landscape . People coming in and out of the city are going to see that . They 're not going to see that road to the north . And if that road is built to north , what 's going to be backed up to Highway 5? The backs of commercial buildings? That 's not going to be that attractive . Also , with whoever develops that property all along that strip there , the more land they have the bigger lots they can put in . The more attractive development that they can perceive there . If it 's a residential type , they can have clubhouses , tennis courts , even small golf courses . There 's enough room - for that too . But if you cut the property in half , you 're not going to be able to have any of that . You 're going to pre-determine everything . Now a little bit 's been said about that road dividing the high density and the _ low density . Well , who 's to say what 's going to be wanted 4-5 years from now . I 've been a developer for 30 years and the last 15 years , every piece of property I 've developed has been rezoned . Not by me but by the city . They thought that it was best to rezone it because times have changed . You put that road through on the north , and even if the city determines that it made a mistake or if the times have changed and the property and the city would be better served by changing the zoning , it 's not going to do much - good because that road 's already there . Thank you . Jim Andrews : Members of the Commission . Again , I 'm Jim Andrews . I 'm the _ Chairman of the Highway 5 Task Force and I will concur that it 's been a very lengthy process . One that if had I known how long it was going to be , I 'm not so sure I would have volunteered for it but nevertheless it 's a project we 've all worked very , very hard on and one thing I can certainly - say is that we have considered all alternatives in great detail . Sometimes to the frustration of many of the members of the task force spending months and months discussing north and south and possible land implications and difficulties of development so I think we have done a thorough job of looking at what the alternatives might , what they are and what the impacts could be . A couple things I just wanted to point out is that both north and south alternatives , we did look at providing trail crossings and Planning Commission Meeting July 21 , 1993 - Page 50 pedestrian accesses and so forth so neither alternative really I think creates a poor access for pedestrians or trail traffic at all . We also looked at land uses . At our last meeting we looked at land uses and also looked at some of the results of a subcommittee called the zoning overlay subcommittee I guess is what we called it . They were looking at building designs , setbacks , sign ordinances , and so forth and just as a side note , I 'm sure those are some things that Fleet Farm would be very interested in knowing about . I don 't know if they 're being provided with that or not but they should be . One other issue I want to make is that the MnDot funding as to what MnDot would contribute to the northern portion . At least to my recollection , that information has never really been accurately determined . The one thing we are sure of is that MnDot 's contribution to the northerly alternative would be less than the south . But as to say that it would be 80 or 50 or 70 or 30 , to my knowledge that finite number was not determines but we are aware that there is an impact . So again I would say that we have done , I believe a thorough job and have made a recommendation I think _ that would be suitable for the city . Thank you . • Batzli : Let me ask you a question Jim before you sit down . Is it your opinion then if after hearing the various landowners here tonight , it look! like we 're ticking off about a third of them along Alternative 1 and 2 here by your selection . Is Alternative 2 that bad? Jim Andrews : Personally , I struggled back and forth with my decision for quite a while . To be real honest from , I 've got to remember the names of the streets here but . Farmakes: Galpin to TH 41? Jim Andrews: From the Galpin crossing , I always favored the northerly alternative on that side . From the Galpin towards the east , I had actuall) initially perferred the southern alternative and then was convinced that the northern alternative would offer I think in the long haul a superior - alternative . I will , I don 't know if it was passed along to the Commissior here but the vote on this , on the recommendation was very , very close . So it certainly was not unanimous that we should have the northern route . In _ fact if I recall the vote was barely majority . So we wrestled with it . Within our own group quite a bit too . And I also would say that the overlay committee is proposing ordinances that I think regardless of what alternative we would ultimately end up with , that we 're going to end up with something far superior to the development that 's occurred along Highway 5 in Eden Prairie so that I think we can be assured of . But as a committee we did favor the northern alternative and I guess speaking as a - spokesman for the committee I feel that I need to communicate that first of all . Oh one other comment too about the Fleet Farm road alignment . The one reason why we did choose the northern there was that it did match up with the road directly across the street from TH 41 . It provided an intersection so that was one of the main reasons we again stayed with that alignment . Batzli : But it sounds like they proposed something that swung further north and still came out at about the same point . Planning Commission Meeting July 21 , 1993 - Page 51 Jim Andrews: Again at , it was almost 2 months ago and working , from what I recall , I believe their recommendation also impacted a private property owner to the north of their site too . I 'd have to look at it again to - refresh myself again . Also , as a group discussing land uses last meeting , we as a group were recommending that the Fleet Farm site would not be commercial use as proposed by Fleet Farm and we were looking at , I think it was high quality development being medium or high density again or possibly , I don 't want to be wrong on this . I believe we also , and maybe you can help me on this . A different type of commercial . We had a special term for it . I can 't remember the word we used for it . Scott: What are you talking about , like a headquarters? Jim Andrews : Headquarters or something . Scott : High profile . Jim Andrews : Yes . Something like that . Scott : Because it 's the gateway . Jim Andrews : Yeah . The overlay ordinances that we 've discussed would impose restrictions on Fleet Farm that if they were to proceed with _ building in that area , under the ordinances that we are proposing , they would have to build something substantially different in appearance than what they traditionally build . And I don 't know if that 'd be workable but that may be something we would have to explore if we were looking at a compromise , so . Batzli : Thank you . Farmakes : Can I ask a question of the Barton-Aschman representative? Batzli : Sure , go ahead . Farmakes : There was a graph that showed land acquisition . Similar to this and it was shaded in with the property that MnDot would be willing to acquire in relationship to the north and southern route . Was that accurate or was that a guesstimate? Deb Porter : Well that was based on our discussions with MnDot in the past year or so and it 's not , as we said earlier . We don 't have anything in terms of a formal agreement from MnDot as to what exactly their _ participation would be but we have had discussions with them . So I think we have a good understanding of what their participation would be and maybe I ' ll just walk over to the map and show you , if it will be helpful you know what we understand to be their . Farmakes : I think maybe the comments I 'm going to make it would be helpful if you did . . . Deb Porter : Okay . Let me try and explain this the best I can . MnDot 's considerations are being primarily on controlled access of Highway 5 and also minor shifts that they are now proposing towards the north of this Planning Commission Meeting July 21 , 1993 - Page 52 much of Highway 5 and that 's to avoid impacting the mini-storage , daycare , and recording studio on this side of TH 5 . Their original design was to widen to the south primarily but of course now that would cause significant_ right-of-way impacts . I think they estimate that being $2 million plus in right-of-way acquisition costs . So they 've redesigned this in about a 60 foot northward shift and about this portion of Highway 5 . That would take a little bit of the park property . It would encroach a bit on Eckankar property . Moves Kerber and the Gorra property in here . In addition , there are also 4 or 5 , 3 or 4 residences here that would not have direct access to TH 5 any longer . MnDot then in their original design would have had to build short access driveways to about 4 different properties . So in consideration of all those impacts , what they have talked about doing in participating in what would be considered a buffer area between the access boulevard and Highway 5 . So you 're looking at primarily this extension here . The area that 's between the Alternative 2 and then of course the . . . MnDot would look at purchasing most of this acreage here . Between the highway and the alternative . Once you get to this point of course , and once Alternative 1 shifts northward , if this isn 't built , MnDot would probably not design any . . .access between the buffer area in here because you 're then getting away from what they might consider to be more of a frontage road and they don 't want to set a precedent in communities in buying huge amounts of right-of-way between . . .roads and a highway . Then once again , once the alternative comes back closer to TH 5 , they 've also said that they would be willing to participate in some portion of buffer - area within this area here . . .Alternative 1 is quite a bit north of Highway 5 , they probably would not be buying any buffer area . Again , they see this as a separate city thoroughfare whereas here , as they 've done in other - communities , they see that as more of a frontage road where they could participate in buffer areas . Farmakes : For the purpose , we can 't see the legend here but for the purpose , from a minimum and maximum from the area from say Galpin to Lake Ann . Right-of-way frontage would be how many feet? Like 50 to 400 , or how would that? Deb Porter : This scale is 200 feet to an inch so , that 's nearly 3/4 of a mile from here to here . Farmakes : But depth then off of the highway up to the road , let 's say proposal 2 . Between Highway 5 and proposal 2 would be how many feet in depth? - Deb Porter : You 're looking at about 200 feet by the inch here , and some of these are wider portions . Again , once you get shifting quite a ways from - TH 5 , I think and it happens to be a property line here , you can see it reasonable that MnDot would look at all of this being buffer area up to the property line and again you 're shifting away . . .so it 's clear that for Alternative 2 MnDot would participate in more of the right-of-way acquisition costs than Alternative 1 . Exactly what those costs would be i` somewhat . . .some guesstimates on the dollars amounts on that . Batzli : Thank you . Yes sir . Planning Commission Meeting July 21 , 1993 - Page 53 Lee Kerber : I 'm Lee Kerber and I 'm right between the city tree farm and between what Natural Green vacated . According to the map here it almost looks like they , as soon as it got across or past the park driveway , they veer to the north to save the city tree farm and to get my house . And as soon as they get by my house and past the Natural Green vacated property , they 're going back down to the road . I don 't understand why they can 't stay next to the highway the whole time . Another thing I 'm a little disturbed about , the communication gap . I heard it through the grapevine you 're going to lose your house . I said , what are you talking about . I never had any notification until probably 3 or 4 months ago there was going to be a meeting down here . It seems to me a person should get it direct from City Hall that they 're thinking about taking your property instead of getting it through the grapevine . All night long I 've been hearing people talk about trees . They 're going to save those trees that are 2 or 3 inches in diameter and the city tree farm and they 're going to take down 25-30 trees on my property that are a foot and a half , 2 feet deep , probably 30 _ feet high . I don 't agree with a lot of those things . You 're not just taking my house . The place that I live . You 're taking my life . I spent 65 years on that property and just like that you come along and tell me , so long sucker . That 's about what it amounts to . You don 't come and say , we want to give you some money so you can start looking around . You just bully your way through . There 's a lot of things I don 't appreciate . My wife says let 's just get the heck out of town and it looks like I 'm going to whether I want to or not . Thank you . Batzli : Thank you . Would anyone else like to address the Commission? Brad Johnson: Mr . Chairman , members of the Planning Commission . My name is Brad Johnson . I live at 7425 Frontier Trail and I represent Lars Conway who owns 50 acres on the northeast corner of Galpin and Highway 5 . Just for the record , we prefer Alternate 2 which is the southern route , as I believe most of the landowners thus far have . The primary reasons are cost . We feel that as the representatives of the city have indicated , it will cost a lot more money to do it to the north . There 's a lot of severance cost that 's involved . As you know I 've been a developer in this community for a long time and we hear a lot about , well we ' ll do high density , multiple housing . We have very little high density , multiple housing development happening in Chanhassen . Many of the subdivisions have gone undeveloped and have been rezoned over the years . You guys have been around . You 've got Lundgren had a subdivision like that . It 's not easy to say it and I would say over a 10 year period , that much land zoned high density , multiple will not be developed and will tend to go to commercial , industrial uses because 10 years from now you 're all gone and everybody 's wondering why that hasn 't been developed . So I think it 's just not necessary to do it . You 're creating a problem that I don 't think you need to have to do . It 's a problem I think that people in good faith suggested because they can see green space there but in talking to the high density , multiple developers that exist today , they would not want to be between two freeways either . I mean two basic freeways . The second one is that I 've been around town for a long time and as you know , Chanhassen Estates has — been separated from the city for quite some time . This particular road will carry by Highway . This particular road will carry a lot more traffic than we all imagine and I think that if in fact that is going to be residential all along the south of Alternate 1 , that it will be basically , Planning Commission Meeting July 21 , 1993 - Page 54 unless you guys want to spend a lot of money on overpasses again and trail systems that go underground and stuff , be separated from the other properties . And developers we 've talked to about purchasing the property - and actually building something say no . They would not build in that area because of that reason . They want to be nestled up against the single family area and I think Mr . Gorra 's got a good point . And we probably should have done like a $20 ,000 .00-$25 ,000 .00 proposal that says this is how we would do this neighborhood so you could actually see how that neighborhood would look . But you can , I would guess what you would see , if_ you go along the highway and you would see , according to Mr . Gorra 's plan , kind of a very planned major entrance into a major subdivision as you go north into the Lake Ann area off of that road . You 're just not going to get that kind of a look to put multiple there because you 're going to , we 're going to have to try to figure out how to back the multiple because that 's the back of the entrance into a multiple . In other words , we ' ll be entering off the main road and the back of it will come into Highway 5 . I think the main thing here is I think going north through there is a premature development of the property . The road system is being put in prematurely and from what I can tell , for no very good reason other than it probably looks better as you look at it now but I don 't think in the long - run it would look better at all . And at a higher cost than you would have ultimately the way it 's planned on Alternate 2 . But the main deal is , I think all of us could probably come with some terrific visuals of how this could look if it was developed with roads going into the north and we could show it to you and it would look wonderful . I don 't know how to give you a good visual of what this is going to look like with multiple or some _ type of commercial inbetween the two roads . Then just think about Highway 5 and how long those two communities , how that 's divided our community and I 'm not being overly dramatic but that 's going to be a busy road . It 's not going to be a road that is not used . Right now it doesn 't appear that way - but it will be very different so I 'm , from Dr . Conway 's point of view , we 'c prefer to get together with Mr . Gorra and put together about a 200 acre really substantial development in that area and you 're making it just about_ impossible . You ' ll probably create about , not you are but the plan does , you probably create 2 or 3 small multi-family developments sometime . And then basically cut into the dynamics of what could happen to the north . Thank you . Batzli : Thank you . Would anyone else like to address the Commission? What I 'm going to do is I 'm going to ask for a motion to close the public - hearing but once we do that , I would still like there to be interaction but as a formal matter , I 'm going to try and close the public hearing at this time . Is there a motion? Conrad moved , Ledvina seconded to close the public hearing . All voted in favor and the motion carried . The public hearing was closed . Batzli : Matt . Matt , I 'm sorry . I do that all the time . Why do I do that Jeff? Farmakes: That 's okay Bill . Batzli : Okay , thank you . You have some comments that I think you 'd , it 'd _ be good to have you go first here . _ Planning Commission Meeting July 21 , 1993 - Page 55 Farmakes: First of all I want to thank the task force . I think there 's been an awful lot of work done here , both from city subcontractors to city staff . It 's really fascinating to see how this effects a community and commercial aspects , homeowners , farmers . People who are interested in building Chanhassen in the future and it 's been an interesting experience . With that being said I 'd like to criticize our task force . I can do that I guess because I was on it . I do believe , as I said , that perhaps we got a little off track when we got into the discussion of main street . It 's easy to fall into . There was a lot of discussion about the philosophy of main street and so on and I had a feeling that perhaps we were losing the intent of our mission , which was to create a buffer in our community against the highway expansion to insure that the highway would not become a wall in our community . I think if you refer to the building corridor that we got here , there 's two drawings on there that I 'm sure some of you have seen before . The issue of frontage roads that parallel a highway and create sort of a concrete wall in a community . And the lower drawing has the meandering road that occasionally gets close to the highway but also comes up and there 's adequate area for natural buffering on the highway . And if you turn 2 pages in and you look at the area that we 're discussing here , you can see the Lake Ann district that comes across over to the Arboretum district and this was the original drawing that the University did . And the areas that we 're discussing here would be right in the middle if you look over to your left . And essentially the road alternatives that we look are there that you see up here which we actually wound up coming up with and for a moment here I 'd like to go over and point to the map . I would like to point out also that as a , I don 't know if our Chairman is still here of the task force but we did , although the report from the city did not probably explain it as well as I thought they should have . It was not unanimous . The task force , like any task force , has disagreements within it and the vote was not unanimous . I 'd like to make a case for my dissent on this issue and . . .The issue that we discussed to the south and the issue that are here tonight , there was very little discussion , or dissent here on this issue . But to the east of Galpin I think that there _ was more dissent in regard to buffer . . .how the crossovers would affect Bluff Creek . Those of you who have driven back and forth know that this is a low area . There 's a lot of trees in here and the question was how , with the least amount of impact can we do that and there were viable cases , plus — and minus . . .different four alternatives . But the issue that I . . .fell back on was Bill Morrish 's original . . .that it seemed to me that inquiring of this space is just as important as main street or the philosophy of main _ street , which to me got very subjective . The issue here is the pragmatic requiring of right-of-way that the city can buffer . . . The city can buffer Highway 5 and that was our , that was one of our main tasks . If MnDot is willing and the map that you provided showed MnDot acquiring this property here from CR 17 over essentially to a part of . . . it got a little loose in here but it essentially all this property in here . And those of you that know this particular piece of property know that , where the barn and the old depot is , it 's several hundred feet off of the highway . So this is a substantial amount of property . The setback issues and the future development would seem to me that we would be able to control substantial amounts of property here of right-of-way at little cost to our taxpayers . The problem that we had up here seemed to me is that again we were dictating how this property develops . We were , the city was required to purchase the right-of-way property up in here to a larger degree . As it Planning Commission Meeting July 21 , 1993 - Page 56 came farther to the creek , it seemed to me that crossover D made far less impact to the bluff area , to this low lying area than did alternative for crossover C , which basically cuts right through it . If in the future we are going to improve the crossover and gateway that goes up this way towards Minnewashta for a trail , it seems to me that the sensible connection would have been here and running a trail off of this crossover - and following up behind the higher area behind the creek . The issue of I think one of cost is that the city doesn 't want or requires less taxpayers funds here to acquire this property . That means over here it frees up funds to target more and go with the northern route , which I support on this side to again buffer Highway 5 . And it seemed to me that again the reasoning for this got very asserteric . And I think the development , when it comes down to development , what we 're going to wind up with here , as was stated , is medium-high density along the entire strip like you see on occasion on Highway 7 or up on 494 . I think the preference would be , that if there was medium density , that it be broken up with single family . — Which I believe if that was out of here , would probably be the case . . .and I think that this really uselessly , I believe , categorizes this area or dictates what it 's going to be . Physically I think there are reasons for going north . There are some wetland areas poking up and there are some lok lying areas . I think that this property makes sense but I can 't see the justification . Batzli : Dave , what 's the nearest east/west collector above there? Is there one? Jay Dolejsi : Just the other side of the wetland Lundgren Bros is putting in a development that has an east/west road . Batzli : But I don 't think that 's a collector level street is it? Jay Dolejsi : Well , there 's limited movement out there . . . limit the amount of development that goes in there . - Hempel : Mr . Chairman , you 're referring to between Galpin Blvd . and Trunk Highway 41 . The Lundgren development is proposing a , what I 'll call a minor collector type street between Galpin and Trunk Highway 41 and will have a wider street pavement than a normal street , or the right-of-way width of 80 feet . That is about midpoint . Approximately a mile north of Trunk Highway 5 . Farmakes : I 'd also like to say that based on the synopsis of the report that it 's sort of inferring that there was a specific reason to go with that route and that some of the land use issues were negative . Because the meeting that I was at , when they went over land use issues , it was a wash . It could go either way and in talking to the professionals that we had , two_ of them off the record came up to me and said that they agreed with me . Sc I think that there is some professional support for what I 'm saying . I think also that there 's pragmatic , from the taxpayers standpoint , a good case to be made for that or at least to consider it as it goes up to City - Council . The last issue I 'm going to touch on is the issue of the Mills property . I know of no support , and I 've been involved since prior to you purchasing your property . I know of no support , that I know of , for a commercial district in that area , and I haven 't been contacted by any Planning Commission Meeting July 21 , 1993 - Page 57 business owners . I haven 't been contacted by anyone telling me what that 's going to be but it seems to me that the location of that property , because an individual purchases it on the speculation that it will be commercial when in fact it 's currently now zoned agricultural , that the fact that they purchased it dictates what it 's going to be rezoned at . It seems to me pretty erroneous . There are , I believe , positive arguments that would dictate that that would not be commercial . Even qualified , and there were alternatives discussed I think in the meeting , and those Minutes are available . I 'm not going to go into those here but I did not support commercial use in that area , primarily because it 's adjacent to a very sensitive area of the community and it wouldn 't fit . And as far as I know , there was no support in history for dictating commercial use in that area . Those are my comments . Batzli : Let me pick up with Brad some of the things that you just said that reminds me that Brad I think brought up and that is , I ' ll address this _ to you Kate . Maybe you can help me and our representative from Barton . Does it make sense what we 're doing right now that we 're looking at the road layout without also in the back of our mind know , or at least thinking what the zoning layout will be? I mean how can we really do this , I mean I find it very difficult to separate my decision on what the road is going to look like up against Highway 41 if it 's going to be rezoned for something that would be beneficial to Fleet Farm and I know according to my _ instructions from Paul here , I 'm not supposed to be considering that but how can we put a road through there if we don 't know what 's likely to be developed . North , south , whatever . Aanenson: The task force had the same problem and we did look at the land use recommendations and those were included in here and we howed the two alternatives and what the potential land use . I think agreed . There needs — to be some marriage of the two to make it come to a decision . I forgot my second point . What did you ask specifically about the land use? Batzli : I 'm sorry , what? Aanenson: You asked about the land use recommendation . That Paul said not to look at that . Scott : Not to have the Mills property . Deb Porter : Oh . If you look on the attachments on the exhibits , I think they 're 7-3 there 's . . .under the land use section . _ Aanenson: Oh the other thing I was going to was the multi-family . That property is zoned , or the comprehensive plan designates the area that Jeff was talking about , as far as we 're forcing that to multi-family . The comprehensive plan already guides that area for multi-family . And that 's - what we looked at leaving that as multi-family . To say that we 're forcing the land use recommendation to multi-family , it 's there right now and if we want to reconsider that , that we 're forcing it , then I think we should look at that . But that 's what it 's guided for currently . Multi-family . That decision was made when you went through the comprehensive planning process in 1991 . That 's the other point I was going to make . Planning Commission Meeting July 21 , 1993 - Page 58 Batzli : Let me ask one other question and then I want Ladd to talk . It seems to me that we 've had conflicting testimony here tonight from our Barton-Aschman consultant and everybody else that 's gotten to speak that is a developer . And that is the report says that it 's preferable to have the northern route because you ' ll have more flexibility in development and all the people that are probably going to end up developing their property have gotten up and said , we don 't like it because it restricts how we can develop it . What do you want to tell us about that? Deb Porter : I think the reasons that were listed there under the preferred- alternative are those that were forwarded to us through the city staff and were mentioned at the task force meeting . They are not recommendations from the consultant . That 's kind of beyond the scope of an environmental assessment which is to be an objective document on impact analysis . It 's not really a persuasive type of document for developing an alternative . I guess it would depend on what type of future land use development scenarios you 're looking at and the task force and Barry Warner have been working on - those issues now for I think a year and a half . I 'm not sure that there 's complete consensus even on these figures that we have on the land use section . They 're still conceptual . There 's still the 1995 study area from- Galpin to TH 41 . Those haven 't been officially documented and platted as the rest of the comprehensive plan shows . So I think at this point if there 's disagreement as to what type of future land use will happen , that 's a decision that hasn 't been made absolutely yet . I 'm not sure that you car decide does the roadway go first , then land use . Or does land use come before roadway development . It 's community 's choose either method sometimes . I think what you 're looking at , those figures in the land use - section are still conceptual . Between Galpin and TH 41 . As Kate was saying , between Galpin and Powers Blvd , that part of is platted in your 1991 comprehensive plan . Batzli : Based on , I keep on getting back to this issue of if we choose a southern route , which is more like a frontage road than a collector , as this stuff develops , are we going to have to put another collector in there? Are we just pushing it further north? Aanenson : That 's what I wanted to talk about . I think we need to go back - and when we looked at what should this street look like . If you flip to your proposed typical cross section , which is at the very beginning of the document . Figure 2-2 . One of the first things the task force did is , what should the street look like and how should it feel and what they looked at . if they wanted a narrower street , limited access onto that street , no parking on the street , it 's supposed to have a nice feel to it . Not that you 're on a busy wide freeway . I keep hearing the word 2 freeways . It 's - only 32 feet of pavement . Okay , it 's supposed to be a narrow , not a speedway . Scott : Like a parkway . Aanenson : Yeah , a parkway . Have a nice feel to it . No parking on it and _ again limited access . And a trail that 's segregated from it . So going back to Jeff 's point , is what do you want to buffer on Highway 5 . Do you want to look at aesthetic buildings . High quality buildings or do you want to buffer Highway 5 with another road and that 's where part of the Planning Commission Meeting July 21 , 1993 - Page 59 separating the two came back into too . Farmakes: That wasn 't quite my comment . Aanenson : I didn 't hear your whole comment . . . Farmakes: I ' ll just , if you look at the picture here you can see that Morrish 's original drawing shows plantings as buffers next to the frontage roads that do meander towards the highway and come off again allowing an adequate amount of right-of-way to landscape a buffer between them . The question is again , how much property is the city going to require if we do go with the northern route? How much in negotiations with the town multiplex , high density development are we going to get off of that highway? I would submit that you 're not going to get much . So I think it 's a trade off . Batzli : Ladd . Conrad: It 's 11 : 30 Brian . We close down at 11 :00 . It 's real interesting when you see the process . Some people put a lot of time into it and I _ usually get frustrated with City Council when we put a lot of time into stuff and then , when it 's complicated stuff , you 've got a choice . You can either sink your teeth into it or just sort of take the recommendations that people put a lot of time into . This , I trust them . They went through the right mechanisms . Let 's go with it . That 's the background of saying I 'm not real comfortable right now because I think this road alignment , philosophically I like the one to the north . But I guess I heard enough things tonight that says I 'm not sure and I need to justify it from a stand of land use and in the future and I haven 't put that work into it . I personally have to put more time into understanding this to make a _ recommendation . Environmental worksheet , looks great . I think this is really nice . What ever alternative we choose , I 'm real comfortable that we 've got 2 alternatives that impact is minor . We don 't have a problem but as to which one , I don 't know right now because I really do have to play back land uses and what I see and until I do that , until somebody helps me work my through that , I can 't react tonight . I just can 't . I want to go home . Batzli : I agree and that 's I guess why I 've been asking where the land use comes in and some of these other questions that would help me feel more comfortable . I think the thing that disturbed me most was the fact that I don 't think that there was a real strong consensus on the task force at all . Conrad : I think there 's maybe a role for the Planning Commission to get their feet wet a little bit on this one and maybe spend some more time looking at it . And to be honest , I have not done that . Farmakes : Yeah , I would like to qualify that . There was a pretty strong consensus on the majority of the work that the task force did . There were some issues that there was dissention on . Batzli : What would you want to see? Planning Commission Meeting July 21 , 1993 - Page 60 Conrad: I guess I just need to go , I think we need another hour to compare road alignments and land uses . I don 't know if that 's in a work session here , a part of one of our meetings . I just have to see that . I have to see that get played out . I 'm hearing the developer say it doesn 't work anc I have to validate that in my mind first that it doesn 't work . And I heard Jeff saying that he 's got some . . .on certain parts of it . Well , I guess our- job now as Planning Commission is to sink the two algernatives at work intc what we see land use is in the coming year . And honestly , what makes me a little bit nervous , and again playing the role of Planning Commissioner , the 1995 study area . I haven 't made any decisions myself on what 's at that intersection of TH 41 and TH 5 . Yet we 're kind of precluding some stuff here and I 'm not going to do that . I 'm not saying Fleet Farm should be here . But on the other hand , I 'm not ready to say I 'm going to put something in there that makes it impossible for them to be here . I need tc know what we are going to do out there . So it 's real hard , again . There 's another part of the section , I can 't tell . So until I firm that up , it 's going to be tough for me to make a recommendation and some of their alternatives may just be . Batzli : Okay . Kate . What is it that 's driving this forward? Is there a deadline that we need to approve this? Aanenson: That 's what I was just asking Deb about . Deb Porter : The original schedule was to try and get the environmental assessment document with the preferred alternative approved by the end of _ this year . The end of '93 in order for the design of this roadway to coincide with Trunk Highway 5 reconstruction . The 4 lane . That project has been shifted back on the MnDot schedule now at least a year I think so there 's not quite as much intensity on trying to have this project actuall;- catch up to Trunk Highway 5 design package as there was a few months ago . We were notified of that probably within the last month . We 've had discussions with MnDot and several projects in this district have been - delayed for a year due to inadequate funding . So there 's not quite as muck critical time schedule pressures as there used to be . I guess in delaying things for another couple of weeks until your next Planning Commission _ meeting , I don 't even see that as being a major hurdle you know as far as things progressing through the end of the year . You know you have 't had , some of you haven 't had the document for a long time to look over so I can understand that you 'd need to spend some more time with it . Aanenson : As far as the rest of the Highway 5 task force goes , which we 're looking at comprehensive , the '95 study area and the south side . The whole_ corridor plan . We hope to have that going through the process first part of September . With all the ordinances and land use recommendations . Batzli : So what would happen if we delayed that until it coincided with the overlay? Zoning overlays . Deb Porter : If the beginning of September , you 're thinking you might have - that one finalized? It would shift this schedule back probably 2 months . . and probably early '94 before you 'd probably get final approval of that document . Planning Commission Meeting July 21 , 1993 - Page 61 Batzli : Right . I guess I don 't know that it matters though if MnDot has pushed their construction schedule back to '95 . I mean if this impacts that , then we need to know and we need to move it quicker . Deb Porter : That 's not the case any longer . You know earlier this year . . . kept this project moving along with Trunk Highway 5 design . . . Aanenson : So it sounds like you 'd like to wait until we put the two together . Batzli : Well I would but I do want to give Joe and Matt a minute if they have additional comments . Scott : I recall that when we recommended to approve this particular study , one of the things that I asked about specifically was economic impact relative to land holdings and so forth and in the boiler plate here I see a _ page and a half , 2 pages so my major area of concern is what do we have out there now? Who owns it? How big are the pieces? And it looks like there 's some lines drawn on the mapping that perhaps may represent that . That 's one of my big concerns and of course when we have people who are developers coming in and saying hey , here 's what , this is what we would like to build . This is our concept . It 's not going to work with the northern route so I agree with Ladd in that I think this is good input . I would think , I would guess that if you 're going to make a decision on it right now , Ladd wouldn 't want to vote . I wouldn 't either . And perhaps I know personally I need more time to look at this because it 'd be very difficult for me to get one of these babies on a Friday afternoon and have it totally digested by Wednesday night so I 'd like more time to take a look at it and I 'm not in the position to say one way or the other . Batzli : Okay . Matt . Ledvina : Well talking about the alignment a little bit . I guess I would concur with Jeff in that the southern alternative seems to make more sense east of Galpin . One point I do want to make though and emphasize Jeff 's point is that I feel that the crossover D should be utilized . The impact to Bluff Creek at that point I think is really critical and if that road alignment is taken to the north there , the opportunity to cross Bluff Creek inobtrusive manner , if I can use that word , is , that will be a much better place so . And then possibly the northern route you know to TH 41 . As it relates to Fleet Farm . I think that the road alignment , we should be able to work with some different alternatives there to accommodate some potential future plans . Not saying that the zoning changes are completely _ to follow . Or not allowing or committing to that future commercial use at that location but I think if we can compromise and look at their specific interest there , I think that would be a good thing as well . Batzli : Okay , thank you . Richard Wing: Brian , can I just clarify? Is this a public hearing or not? Batzli : Yes it was . Aanenson: No . It 's a public information meeting . • Planning Commission Meeting July 21 , 1993 - Page 62 Richard Wing : This is not a public hearing . Aanenson: Correct . Batzli : Oh , okay . Well , we conducted one and we closed it . Richard Wing : I just wanted that clarified . There were some questions here that in a public hearing status in a much different approach and this is very informational . This is so conceptual . As a matter of fact , can I _ make a statement? Batzli : Sure . Richard Wing: My name is Richard Wing . Chanhassen City Council . I also served as a member of this commission , or task force , excuse me . And Matt , I just want to pick on you . And this is informationally . It 's not F. criticism . It 's not even critique but you made some statements about alignment and some ideas and thoughts and I just want to ask you as a point here , because I want to get onto something else . How many of these task force meetings did you attend? Ledvina : Zero . Richard Wing: Okay . That 's my point . I think we 're getting concerned about issues tonight and problems and alignments that you have no information on because every question that came up tonight , this task force , which is just a task force , addressed . The alignments . Whether they went north or south . You know we were somewhat split on the alignment and I happen to agree with Jeff . I think he 's right and that 's what I intend to pursue with the information I have . But whether it went north oi— south , and the cost . The alignments . What it did to land uses . How we intended to use the land and zoning and all . It was all pretty much discussed , but you don 't have privy to that information and . — Ledvina : Oh I did speak with some of the members of the task force . Richard Wing : Oh no , no . I know and again , I said this isn 't criticism . I 'm just pointing out that from this point on now we get serious . We 've now taken this task force that 's a lay group . They 've come in with a very conceptual plan and now it gets thrown into your lap and you 're going to - have to reinvent the wheel and it 's going to be a long lengthy process . All the questions that we asked , we discussed , are going to have to be rediscussed and asked again and then get into the public sector because all_ our guest here really didn 't have an opportunity to speak . They were listeners and they weren 't allowed to participate . From now on it takes a whole new format and now it gets formal . It gets official so don 't feel frustrated or concerned about the process . I think it has to start over now and then all these questions you brought up , plus everything that task force did has to be kind of start from scratch and then we 're going to get a formal recommendation from you people after you 've had all the facts so — plan on a pretty major issue here . I think you 've got your hands full . Batzli : Yeah . Planning Commission Meeting July 21 , 1993 - Page 63 Scott : So will you . Richard Wing : Well absolutely but you know you kind of have , in some ways going to fall back on this task force . We 're obviously going to be falling back on you and that 's , I 'm very pro commissions . I mean I tend to take these recommendations that you spend hours on and then suddenly we get thrown with this and we have 10 minutes and I 'm not willing to make decisions like that . I tend to fall back on what 's here so I think we had some real talent on that task force and I think they 're going to be active and participate and speak to these issues as they come up but they 're not here tonight because this isn 't a public hearing . It 's just informational . I think it was important to get some of the public input started . Mr . Kerber 's concerns . You know I 'm kind of wondering why the line 's going right through his house . I think we have to start addressing these and we will so . Be patient . I think the task force did an excellent job . I think you have a real challenge ahead of you but it 's going to be probably one of the greatest gift the city of Chanhassen that 's ever occurred . And if I just may rather than , because it 's late . Batzli : Let me just say one thing here . What Paul asked us to do was recommend approval and the item was listed under public hearing . And I think what Ladd and I want to do is slow it down and do exactly what you 're saying but our direction from our Director was like , we were supposed to rubber stamp it and pass it along tonight . Richard Wing : That 's not true at all and Kate , clarify the public hearing . Aanenson: No , it 's not . If you 're looking at the title , it says public information meeting . We were under the impression that we needed to keep this on docket . To keep the funding with the MnDot . The intent tonight was to allow , as Mr . Wing stated , the intent tonight was to allow public to come and comment . During the task force , we did allow some comment at the task force meetings but we felt this would be a better arena . Feel more comfortable and . . . We had 25 people sitting up here . It made for a large group to take comments so this was an information meeting to allow people to come and voice their concerns . For you to hear it . I think Dick articulated exactly where we 're at and obviously you need more information to go further and we ' ll be bringing that forward . As long as we have the time . Batzli : I don 't want to belabor this point but , so are you suggesting that we start conducting hearings similar to what we did on the comprehensive plan where we have working sessions and we invite anybody and everybody into the room? Aanenson: What 's going to happen is this take on a comprehensive plan . There 's two separate components here . One is the EA document , which we - need to keep on track . The other component is what we 're doing is a master plan . As part of that master plan we 're looking at land use issues . We 're looking at some overlay zones including architectural design and landscaping issues and that sort of thing . We ' ll be bringing those forward to you . Like I said in September we hope to have the task force wound up . Batzli : Okay . Planning Commission Meeting July 21 , 1993 - Page 64 Deb Porter : There is a public hearing as part of the EA process . After the document is signed on the signature page and released for public _ review . It needs to be reviewed by the City Council . There is an official public hearing at that point . Richard Wing: And also be aware that there 's some considerable informatior— coming your way on development standards . Architectural standards . Building material minimums . Sign ordinance . Landscape ordinance . Parking lot standards . This PUD overlay and there 's some tremendous stuff coming _ and it 's going to change the face of the city . I mean to say that Mills Fleet Farm is going to go there or isn 't . It may or may not but I think that based on these new ordinances coming in , it 's going to be a Mills _ Fleet Farm like you 've never seen before and they may or may not choose to look that way . Brian , just as long as I have the floor . I want to get one comment on the record . That you people , as a commission tonight have dealt with some very sensitive , difficult issues in kind of no win set-ups if you— will . I think your attitudes , your demeanor , your comments , your appearances as individuals and as a commission were exemplary . I think you 're to be very much commended tonight . I think you ran a very excellent meeting Brian under some very harsh conditions and I want to thank you . Somebody said outside , he said , he was a professional person from the Arboretum and he said , why would anybody want to serve on that commission after listening . The answer is because you 've chosen to lead , to direct and have an impact on your community and as a resident I just want to say thank you . Batzli : Thank you for your comments from , on behalf of the entire commission . Thank you all for coming tonight . It sounds like we 're going to table this from the standpoint that it 's tableable and hold some _ informal meetings . Get some more of your input and dig into it a little bit more . We ' ll probably delay it a little bit until we know what some of the land use issues are coming down the road and I 'm sure , if you haven 't left your name with Kate , you should do that now just to make sure you get — notified of the upcoming meetings . Especially some of these people that sounded like they maybe were a little bit surprised by the whole item . Is there a motion , something to that effect? _ Conrad: To table? Batzli : To table . Conrad moved, Scott seconded to table action on the Environmental Assessment for the North Access Boulevard project . All voted in favor and - the motion carried . Batzli : Thank you all for coming in . You will be notified of the next time this is discussed . APPROVAL OF MINUTES: Chairman Batzli noted the Minutes of the Planning Commission meeting dated July 7 , 1993 as presented . CITY COUNCIL UPDATE: Aanenson : I ' ll just go over these real quick . Planning Commission Meeting July 21 , 1993 - Page 65 Batzli : Boy , this had better be quick Kate . Hold on one second Ladd . Aanenson : I need to talk to Ladd . Really seriously . The extension of Nez Perce at the City Council . Obviously you realize what happened on that based on the subdivision that was tonight . Non-conforming permit for Minnewashta Manor . That was approved based on the same conditions that the Planning Commission had . The City Council reconsidered the Boley subdivision . If you recall , the rear of those lots fell into the city of Victoria and in meeting with the Met Council they felt as long as the services were from the city of Chanhassen , they felt they didn 't have any jurisdiction in that matter . The City of Victoria wanted to do a property swap because they felt like that property was valuable . We 're not sure that that makes a lot of sense . They want to get 4 , 5 , 6 lots out of it so we 're meeting with them but the City Council did approve , having yard easements . So the lots do meet the square footage . It 's just that the rear of the lots are in Victoria and they can just be used for yards only . So we 're hoping that we can still meet and resolve that issue and we 've asked that that be platted last giving the staff time to work out those issues . Trotters Ridge was approved by the City Council . Basically the same way as you had presented it , and as you 're aware , Paul will be out of the country for the next couple weeks . That 's it . Batzli : Okay . Thank you . Conrad moved , Batzli seconded to adjourn the meeting . All voted in favor and the motion carried . The meeting was adjourned at 11 :53 p .m . Submitted by Paul Krauss Planning Director Prepared by Nann Opheim