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05-12-92 BZA Minutes MINUTES OF A REGULAR MEETING OF THE GOLDEN VALLEY BOARD OF ZONING APPEALS May 12, 1992 The regular meeting of the Golden Valley Board of Zoning Appeals was held Tuesday, May 12, 1992, at 7:30 P.M. in the City Council Chambers, City Hall, 7800 Golden Valley Road, Golden Valley, Minnesota. The following Board members were present: Chairman, Mah10n Swedberg Mike Sell Herb Polachek Jean Lewis (Planning Commission Representative) Linda McCracken Hunt (alternate) Lloyd Becker, Secretary/Staff Liason Absent by prior arrangement, Larry Smith and Emilie Johnson. Chairman Swedberg opened the meeting promptly at 7:30 P.M. Chairman Swedberg noted that at the regular meeting held in April of each year a new chairperson is appointed for one year. There was no meeting of the Board of Zonin9 Appeals April 14, 1992, as there were no appeals filed for the agenea. Therefore, a new chair shall be appointed at this meeting. Chair Swe~berg relinquished the chair to Lloyd Becker. Becker opened the floor fo~ nominations. j Mi~e Sell nominated Herb Polachek for chairperson, second by Mah10n Swedberg. Lloyd Becker asked two more times for further nominations. Hearing none, the nominations were closed. Linda McCracken-Hunt moved to appoint Herb Polachek as chairperson, second by Mike Sell and upon vote carried unanimously. The first order of business was approval of the minutes of a regular meeting held March 10, 1992, copies of which had previously been distributed to the Board. Mike Sell moved to approve the minutes as written and presented. Second by Mah10n Swedberg and upon vote carried. 92-5-6 (Map 9) Commercial 5320-5410 Wayzata Blvd. Capital City Investment Golden Hills Shopping Center (Ruperts) The petition is for waiver of Section: 11.90 Subd. 2 to provide for demolition of the retail portion of the existing structure and create additional parking area; and for Section 1234 I I I I I I Board of Zoning Appeals Page 2 May 12t 1992 92-5-6 (Map 9) Commercial 5320-5410 Wayzata Blvd. Capital City Investment Golden Hlls Shopping Center (Ruperts) Continued 1235 11.30 Subd. 6 F parking spacest for 177 spaces off the required 613 spaces (after removal of retail) to a total of 436 parking spaces on site; and for Section 11.30 Subd. 7 yard requirementst for waiver of certain setbacks created as a result of 1-394 acquisition as defined on current survey and site plan provided. The petition was in order. been given on the petition. Mr. Robert Mitchellt attorney at lawt from the firm of Lindquist & Vennum was present representing the ownerst Capital City Investments (Golden Hills Shopping Center). Numerous property owners and area residents were pre- sent. Several representatives from MNDOT were in attendance. Consent of adjacent property owners had not Chairman Polachek read the sections of the Zoning Code to be addressed by the Board and then asked Lloyd Becker for the staff information. Lloyd Becker displayed for the Board and the audience the materials submitted for the petition. The first being a recent survey of the sitet which described the parking before acquisition of right of way by MNDOTt the areas of acquisitiont the temporary right of way easements for construc- tiont the existing building and property lines. The next was a site plan identified as proposal No. I. This site plan described the existing building and parking arrangement after right of way acquisition. The third was a site plan which was similar but provided for the removal of the existing retail portion of the building and establishing parking in its place. This was identified as Proposal No. II. This configuration would . would provide for total parking of 436 spaces on site. This site basically reflects the agenda and petition by the property owner. Lloyd Becker reviewed the applicable sections of the Zoning Codet which address the taking of property for public improvementst the non-conforming section of the code that is applicable to the proposed demolition and the parking that is required by today's Class III nightclub/restaurantt which results in the variance request for parking spaces. The history of the development of Ruperts' complex was described in detail. The comparison of the Class I restaurant parking ratio that existed at the time Ruperts was proposed and the subsequent adoption of a Class III night club restaurant parking ratio as a result of the parking requirements that developed shortly after Ruperts opened. 1236 Board of Zoning Appeals Page 3 May 12, 1992 I Mahlon Swedberg asked about the parking and problems that have existed or exist now. Lloyd Becker described the parking needs that developed shortly after Ruperts opened, the requests by residents on Circle Downs for resi- dent only parking and subsequent approval by the City Council and also the parking that continues along Turners Crossroad and complaints of non- resident parking on Circle Downs. Mr. Robert Mitchell reviewed their proposals, the history of the parking, the acquisition of certain areas by MNDOT, the condemnation awards as a result of commissioners' determination and the present status of dispute between MNDOT and the property owners and the pending litigation. It is important for them to have the Board of Zoning Appeals' decisions so they can accurately establish their status. Mr. Mitchell noted the advantage to the removal of the retail portion and the establishment of parking very close to the building is good for business. Mahlon Swedberg asked if a variance were granted for the 177 spaces, still short after the demolition, and with the new spaces established, what assurance would the Board and City have that this would help or alleviate substantially the current problem. Mr. Mitchell said realistically no assurance could be provided; however, the site had around 400 spaces before MNDot taking and after tear down 436 spaces would be provided. In his opinion, for most of the time, parking should be adequate and pretty much do the job. Even if the required 613 spaces were able to be established, there's no assurance that in all cases that may be adequate. Mr. Mitchell said Zoning Codes are written to provide the best possible applicable situations for setback, parking, etc., but no zoning code reasonably developed and applied can ever address exactly every given situation. Mahlon Swedberg asked Mr. Mitchell if they had ever approached the Colonnade for use of some of their ramp. Mr. Mitchell said to his knowledge, they hadn't talked. Mr. Dick Dineen spoke on behalf of MNDOT and said they support the variances requested. Mr. Dineen described the temporary parking lot established at the east end for use during 1-394 construction. This area is due to expire at the end of 1992. Mr. Dineen said additional property could be purchased from MNDot for development of parking. Mr. Dineen said overall the State's intent for the property to the east is for one owner. The property was acquired for right-of-way construction purposes, a staging area for the contractors, etc. MNDot feels they have access from Circle Downs and the right-of-way acquired by the former alley and additional 10 feet from the existing parking lot on the north. I I I I I 1237' Board of Zoning Appeals Page 4 May 12, 1992 Lloyd Becker said that now that the alley is a matter of discussion, he would advise the Board to consider deferring any waiver of setback that may be applicable to Section 11.90C (4) (entitlement of right to variance as a result of acquisition for public improvement) because if the alley and additional right-of-way acquired by MNDOT is intended for access to the MNDOT property to the east, it does not meet the City requirement of 60 feet right of way and a minimum of 32 foot drive surface. If the 60 foot right-of-way is intended by the City and the 35 foot setbacks established, it would basically eliminate the parking lot on the north side of the complex and establish a setback line that would intrude into the existing building on the south. Becker said the alley status is a question for City legal counsel, the City Council and for discussion with MNDOT, as it relates to the potential for any future development should the land to the east be sold. Mr. Mitchell said it is important they have a decision not a deferral. If the waiver of setback is denied, he understood they have the avenue of appeal to the City Council. He felt it important to have the avenue available of any administrative methods provided for by the ordinance. Lloyd Becker described the method of appeal. Mahlon Swedberg asked if parking in the Colonnade is not available, has there been any consideration to building their own ramp. Mr. Mitchell said that was too expensive of an alternative for them. Chairman Polachek closed the discussion by the Board and opened it up for response from those in the audience. Mrs. Christiana Brown, 5011 Circle Downs, read a prepared description of the problems the neighborhood has incurred as a result of construction of 1-394 and the Ruperts' complex. Mr. David Webb, owner of Ruperts, said he is a proponent for the variances as the viability of his business is directly affected. Mr. Webb said he feels he's between lIa rock and a hard placell and may not be able to exist without the variances. IIIf the variances were granted, it would give Ruperts' the opportunity to expand and upgrade their investment.1I Mr. Webb said he would aggressively approach a new identity and now has investors available. Lloyd Becker explained there is a difference between the literal provisions of the Zoning Code that the Board of Zoning Appeals is empowered to address and the use or uses as Mr. Webb is describing. His present use can con- tinue as is because it was established before the adoption of the Class III nightclub zoning catagory. Any changes in the use from what presently exists would now require a Conditional Use Permit, which means applying through the Planning Commission and City Council. Mr. Webb said at one time he did seek additional parking from the Colonnade; however, it was offered at $10,000 per month and this cost was unreasonable. ~238 Board of Zoning Appeals Page 5 May 12, 1992 I The discussion returned to the alley. Lloyd Becker noted that in previous meetings with MNDOT and with the property owners, former City Engineer, Lowell Odland (retired December 1991) described and discussed the need for access to the east necessary for future development. A service road meeting City standards adjacent to the north side of the existing parking lot, widening of the existing alley, and re-estab1ishment of the service road were all options discussed by Lowell Odland and Lloyd Becker with the Drs. Guertner. Mah10n Swedberg said if Ruperts were to shut down, the building wouldn't go away. Some other commercial use would certainly be possible. Maurice Goldman, owner of the apartment building at 5307-5311 Circle Downs, spoke of his concern about the remaining alley adjacent to his property that is now owned by MNDOT. He questioned the status of the sewer line in that area. He described his problems with patrons of Ruperts parking in his property and he objects to any variances being granted. Michael Perlstein, 5121 Circle Downs, said he wanted to go on record in opposition to any variances being granted. He expressed his lack of City concern for the residential property owners the problems related with 1-394 construction and the potential for future negatives to homeowners. Herman Held, 5400 Circle Downs, said the State of Minnesota purchased his five acres. He said in his opinion the alley is City owned. Harry Shapiro, 5231 Circle Downs, said IIMNDot doesn't give a damn for the residents of the areall. I Jan Palmer identified herself as administrator of the We1dwood Nursing Home, 5411 Circle Downs. Ms. Palmer said she is concerned for her neighbors and further reduction of property values. Clarence Green, 300 Turners Crossroad South, said he is opposed to any variance that provides for tear-down of any portion of the Center. He said no one cares about the small property owners. Leave the Shopping Center lias isll. Jane Gjerstad, 5420 Circle Downs, said the center went from Jolly Troll to Ruperts and it became a bad neighbor. As a result, the residents of Circle Downs had to go to parking permits. She stated Ruperts is now using the Colonnade ramp for valet parking, she has seen it herself. Laurie 1tman, 5300 Circle Downs, described two to three times a night beer bottles are dumped in her yard. Shirley Burkhardt, 5301 Circle Downs, is the property zoned commercial? David Webb, if he could expand, he would seek a Conditional Use for newer type use inside. I I I I Board of Zoning Appeals Page 6 May 12, 1992 1239 Having afforded everyone the opportunity to be heard, Chairman Polachek closed the public testimony and referred to the Board for further discussion and any questions. Mahlon Swedberg asked Robert Mitchell what rationale or reasons would you suggest that the Board should approve any of the waivers. Mr. Mitchell replied the property is zoned commercial, the highway taking didn't change the zoning, it is still commercial. The parking is needed to sustain the present nightclub/restaurant venture, it would make best of a difficult s ituat i on. Mike Sell said he is concerned about the future of the property to the east. As a development potential, what if a General Mills or Honeywell or some other corporate entity with an 8:00 A.M. to 4:30 P.M. work schedule came along and access was still a question. Poor soil conditions can be corrected or construction methods such as piling utilized. Long term, the potential is for that type of development versus Ruperts forever. Mike Sell said he felt he could look favorably to a variance of setback along the south side of the property, but the alley is a question. Mike Sell moved to grant the variance for Section 11.30 Subd. 7 setbacks to allow the parking as shown adjacent to the wall easement as shown on Proposal II. Second by Linda McCracken-Hunt. Discussion was called on the motion. Mahlon Swedberg said he would vote against the waiver. Jean Lewis noted the highway construction has been extremely disruptive, the ordinance change from Class I to Class III restaurants has had an effect and con- sidering that and what has been presented, she could vote for the motion of approval. Chair Polachek called the vote and it was four (4) ayes for approval and one (1) nay (Swedberg). Motion carried. The Board discussed Section 11.90 Subd. 2 regarding demolition of the retai 1 portion. Linda McCracken-Hunt moved to grant the waiver requested, which would pro- vide for demolition of retail and additional parking spaces as shown on Proposal II. Second by Mike Sell for "discussion purposes". Mahlon Swedberg said he could vote for this motion, but recognizing previous testimony by Mr. Mitchell regarding this being the solution to parking problems, it wouldn't alleviate the existing problem so he would vote no. The question was called and upon, vote, it was four (4) ayes for approval and one (1) nay (Swedberg). Motion carried. Mahlon Swedberg noted the past overall history of variances including parking and its problems and he said he is against any variances of any kind on this property. l~O Board of Zoning Appeals Page 7 May 12, 1992 I Regarding Section 11.30 6F, parking spaces, Mahlon Swedberg moved to deny the variance for 177 spaces of the required 613 spaces as on the agenda. Second by Linda McCracken-Hunt. Discussion on the motion. Mike Sell, the property owners in the area have had a chance to be heard as well as the petitioner and future development may warrant the additional 177 spaces or more and he supports denial of 177 spaces. The chair called the vote and it was unanimous for denial. Mahlon Swedberg said he recognizes a variance for setback along the south lot line has been previously granted tonight; however, he opposes any other variances for setback relating to MNDOT acquisition. Mahlon Swedberg moved to deny any other setback variance for conditions created by MNDot acquisition in conjunction with or related to 1-394. Second by Mike Sell and upon vote carried unanimously. Recognizing two and one-half (2!) hours had been spent on this variance proposal, the Chair called for a five minute recess. 92-5-7 (Map 5) Residential 2201 Legend Drive Michael H. Falink I The petition is for waiver of Section: to provide for additional construction on a deck area that previously received a waiver in 1982. The petition was in order. Consent obtained from all adjacent properties. Mr. Joseph Manikowski was present to represent the owner. No others were in attendance. Mr. Manikowski identified himself as the contractor for the proposed construction. 11.90 Subd. 4 C (3 & 4) Secretary, Lloyd Becker, said this property had been before the Board in 1982, and a waiver was granted which provided for a deck with a free- standing gazebo on the deck. The deck was built; however, the gazebo and other related construction beyond the deck did not occur. The present pro- posal is to construct a gazebo-type three-season porch on the existing deck with an enclosed walkway and connection to the house. As all the work pre- viously proposed was not completed following one year from previous BZA approval and as the proposed construction substantially differs from the previous approval, staff has required this to be heard again before the Board, prior to any issuance of a building permit. Four of the six adjacent property owners are not the same that existed in 1982. I I I I Board of Zoning Appeals Page 8 May 12, 1992 1241. The Board had been provided with the past minutes, previous plans and the current plans Mr. Manikowski described for the Board of the proposed construction. Mahlon Swedberg asked for further clarification of what is now a three- season porch and specifically on the manner of the connecting walkway to the house. As Mr. Manikowski responded, he agreed that this present construction differs from the previous approval. At the close of discussion, Mahlon Swedberg moved to approve the additional construction with the parameters of the previous waiver approval and noting the topography, shape of the lot and that there is the 35 foot setback requirement on two sides facing public streets. Second by Mike Sell and upon vote carried unanimously. 92-5-8 (Map 8) Residential 4309 Woodstock Avenue Dean K. Penk and Julie Berg Penk The petition is for waiver of Section: 11.21 Subd. 7 B rear setback, for 12 feet off the required 30 feet to a distance of 18 feet from the rear lot line to the proposed deck at its closest point. .. The petition was in order and consent obtained from adjacent properties. Mr. and Mrs. Penk were present. No others were in attendance. Mr. Penk explained his home is set on a lot 150 feet deep with the house only 38 feet from the rear lot line. The house is 82 feet back from the front lot line and is also on a slight angle to the rear lot line. Because of this angle, a portion of the deck would intrude into the required 20 percent of rear yard. Mr. Penk said the homes to the rear of his lot line are some 80 feet distant and situated up a rather steep hill. Because of the hardship of the large setback from the front lot line, Mr. Penk said he has no alternatives. The Board reviewed the site plan and pictures provided of the existing con- ditions. Mike Sell moved to approve the waiver as requested, noting the large front setback, placement of the existing house on the lot and the topography. Second by Jean Lewis and upon vote carried unanimously. 1242 Board of Zoning Appeals Page 9 May 12, 1992 I 92-5-9 (Map 6) Residential 1330 Angelo Drive Richard & Susan Foreman The petition is for waiver of Section: 11.21 Subd. 7 A front setback, for 11.5 feet off the required 35 feet from Angelo Drive to a distance of 23.5 feet to the house as it exists and to the proposed addition at its closest point. The petition was in order, consent obtained from adjacent properties. Secretary, Lloyd Becker, noted it appeared the petitioners had been present but with the lateness of the hour, apparently left under the assumption this item would not be heard. No adjacent property owners were present. Chairman Polachek suggested the Board hear the item as all information had been provided and the proposed construction was within the footprint of the existing setbacks for the house. Lloyd Becker noted there are other properties in the area that had received front setback waivers prior to being built. There is no record of a waiv~ for this property. This is an unusual lot. It fronts on Angelo Drive for 234 feet and is only 75 feet deep. The house exists at 23.5 feet from Angelo Drive. The proposed addition would be in line with the existing setback. The Board reviewed the survey and the floor plan for the bedroom, bath and small deck addition. I Mike Sell moved to approve the waiver as requested including the house as it now exists. Sell noted the unusual lot size, shape and topography and the constraints limiting any other alternatives. Mahlon Swedberg seconded the motion and upon vote carried unanimously. Secretary, Lloyd Becker, brought before the Board a letter he had received from Mr. L. MeRoy Lillihaugen, 5630 Loring Lane. Mr. Lillihaugen appeared before the Board of Zoning Appeals June 11, 1991. The Board granted the waiver as requested at that time. Construction was to begin late fall, but the Halloween snowstorm delayed construction to 1992. The builder planned to start construction in May; however, on Thursday, April 16, 1992, the contractor was hospitalized and operated on for cancer. He is now recovering and starting chemotherapy. They would like to wait for the contractor's recovery. Because of this unfortunate delay, their waiver would expire next month. Should they have to obtain another contractor, the work could not start this year. I I I I 1243 Board of Zoning Appeals Page 10 May 12, 1992 Noting the hardship of the unfortunate circumstances described, Linda McCracken-Hunt moved to approve an extension of one year to June 1993, after which if no construction commences, the previous approval expires. Second by Mahlon Swedberg and upon vote carried unanimously. There being no further business to come before the Board, it was upon motion, second, and vote to adjourn at 11:00 P.M. ~v~ ~f.6fi~) L oyd G. Becker, Secretary.;_ Herb Polachek, Chairman