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07-23-01 PC Minutes Regular Meeting of the Golden Valley Planning Commission July 23, 2001 A regular meeting of the Planning Commission was held at the Golden Valley City Hall, Council Chambers, 7800 Golden Valley Road, Golden Valley, Minnesota, on Monday, July 23, 2001. Chair Pentel called the meeting to order at 7 pm. Those present were Chair Pentel and Commissioners Eck, Groger, McAleese and Shaffer. Also present were Director of Planning and Development Mark Grimes, City Planner Dan Olson, City Attorney Allen Barnard and Recording Secretary Lisa Wittman. Commissioners Hoffman and Rasmussen were absent. I. Approval of Minutes - July 9, 2001 Planning Commission Meeting Pentel indicated there was a correction to the minutes on page four in the first paragraph, second sentence. She stated the word understand should be understanding. MOVED by Eck, seconded by Groger and motion carried unanimously to approve the July 9, 2001 minutes with the above correction. II. Informal Public Hearing - Property Subdivision (SU08-05) Applicant: Paul and Anne Shaw Address: Lots 194,195 & 196, Glenwood located at 501 Meadow Lane North, Golden Valley, MN Purpose: The applicant is requesting a subdivision of the main parcel of land in order to create two new lots from the three existing lots that total about 16,000 square feet. Grimes referred to his memo dated July 18, 2001 and showed the general location and site plan. He stated the applicants own lots 194, 195 and 196 of the Glenwood addition and that the Glenwood addition is one of the earliest subdivisions platted in Golden Valley. He referred to the site map and indicated that many of the homes in that area are built on 40-foot wide lots. He stated that even today, a house could be built on a 40- foot lot as long as it meets the setback requirements for the Residential zoning district. He stated the applicant would like to divide the property into two lots of equal size and that the only way he could do that would be to get a variance from the subdivision code. Grimes discussed the current setbacks of the property and the variance criteria listed in his memo. Pentel asked if something were to happen to one of the homes in that area if it would have to be rebuilt according to the current setback requirements. Grimes stated that if a Minutes of the Golden Valley Planning Commission July 23, 2001 Page 2 home burnt down, they could rebuild it, but it would have to meet the setback requirements. He stated that he feels 60 feet is a more reasonable lot size. Eck stated that even though the lots in the area were platted 40-foot lots, there are actually only a dozen or so homes that are truly on the 40-foot lots, the rest of the homes are straddling the lot lines or on bigger lots so this proposal would not be inconsistent with what is there already. Grimes stated that the inconsistency is with the subdivision and zoning code. He stated that the subdivision code says that all lots have to meet the requirements of the zoning code and the only way to allow this proposal would be to grant a variance from the subdivision code which would say the lots don't have to meet the requirements of the zoning code. McAleese stated that he agreed that the proposal seems reasonable and probably the best thing for the City but asked Grimes when it comes to the criteria for the requested variance if he has any recommendations. Grimes referred to the three variance criteria he listed in his memo. Pentel stated that this proposal makes sense, but approving the requested subdivision variance sets a precedent and people might try to get as many lots as they can out of their property. Grimes stated he agreed and stated that would be the difficulty in granting this variance. He stated that this proposal is a little bit different and that most of the homes in the area are on double lots. Shaffer stated that in terms of precedent, there has already been a precedent set in this area with what's there. He stated that because there is that precedent there, this proposal makes sense, but it might not make sense in other areas where there is no precedent. McAleese stated that because this is a request for a variance there should be a hardship. Grimes stated that it's a unique area and there are some special circumstances that are different from the code today. Pentel asked if unique neighborhood conditions could be considered a special circumstance. Grimes stated that could be their recommendation. Paul Shaw, Applicant, stated that the precedent for 60-foot lots has already been set with the homes south of Woodstock Avenue. He referred to lots 187 and 188 and stated there is a home right in the middle that is too big for the homes surrounding it. He stated he is trying to come up with a solution where he can sell his land and not have a lot where there is more land than the neighborhood can bear, but at the same time, not have a lot that is too small to build on. Eck asked the applicant if he had any intentions of enlarging or changing his home. Mr. Shaw stated that there are no immediate plans to do that. Chair Pentel opened the informal public hearing, seeing and hearing no one, she closed the informal public hearing. Minutes of the Golden Valley Planning Commission July 23, 2001 Page 3 Pentel stated that there are unique neighborhood characteristics in this case. She stated that this subdivision is a good solution for the property owner and for the City as well. Groger stated the proposal does make sense even though the language is awkward and stated there's greater protection for the neighborhood to allow the development of one 60-foot lot than two 40-foot lots. He stated he would be in favor of it. Eck stated he respects McAleese's respect for the variance process, but stated there is sufficient precedent in the neighborhood already for exactly what is being proposed. MOVED by Shaffer, seconded by Eck and motion carried unanimously to approve the requested subdivision with the conditions listed in Grimes staff report dated July 18, 2001, and also with the condition that the variance is to be granted by the City Council. III. Continued Informal Public Hearing - Amendment to the Zoning Voting Requirements Applicant: City of Golden Valley, MN Purpose: The Ordinance revision would change (reduce) the voting requirement for certain rezoning related matters from a two-thirds majority to a simple majority of all members of the City Council Grimes referred to his memo dated July 18, 2001 and stated that he talked to a couple of other cities to get a feel for how they are approaching the new state law and stated that it was impossible to compare how each city handles the approval of PUD's when he didn't completely understand each city's ordinances and practices. He stated the City Attorney, Allen Barnard is in attendance to answer the Planning Commission's questions about the need to change the 2/3-voting requirement. Barnard stated that the new legislation that changed the voting requirements for rezoning amendments is a big change and came as a huge surprise to him. He stated to really understand what it's about, the legislative history really needs to be looked at. He stated that PUDs used to be referred to as contract zoning because it has a lot of attributes of a rezoning. He stated that technically a PUD doesn't change the underlying zoning so technically it isn't a rezoning. He stated that Golden Valley's PUD ordinance is unique and that basically, if someone meets the requirements for a PUD, all the underlying zoning requirements are thrown out and the City looks at whether or not the proposed PUD makes sense for the location, for the City as a whole, and if it fits the Comprehensive Plan. He stated it was his advice in the 1970's that for a PUD, the City ought to require, by policy, a two-thirds vote because PUDs are more pervasive. Minutes of the Golden Valley Planning Commission July 23, 2001 Page 4 He stated that in recent years, the courts have been more and more protective of property rights. If a City Council denies a rezoning, PUD or CUP, the courts have said that the Council must have findings backed up with substantive facts. He stated that since courts have become more vigilant in requiring rational reasons for denying PUDs it seems to him that if someone is denied a PUD application because they don't have four votes, but they only have three votes, the City would lose in court. He stated that the legislation was effective on May 30,2001 and has been in operation since then. Eck asked about the implication of the use of the word "may" rather than "shall" or "will" in the language of this legislation. Barnard stated that the "may" refers not to the level of voting but whether or not the City adopts the ordinance. He stated the old law had the same language. Pentel stated that she feels the timetable for revising the PUD ordinance would also be a reasonable timetable for changing the voting requirement sections of the zoning code. She referred to section 11.90, subd. 3 and asked if the word "permitted" means what is allowed or if it means things that have a permit. Grimes stated it refers to permitted uses. Pentel asked if sections 11.80 and 11.90 could be changed without having to deal with section 11.55, which deals with PUD's until the PUD ordinance is done being rewritten. Eck stated from a timetable standpoint he understands what Pentel is saying, but stated that doesn't change the issue. Pentel stated that the ideal time to discuss this legislation would be at the next joint meeting with the City Council to discuss the rewriting of the PUD Ordinance Pentel reopened the informal public hearing originally opened on July 9, 2001. Bob Mattison, 1120 Angelo Drive stated he was an attorney for Graco in Minneapolis. He commented on Mr. Barnard's discussion regarding legislative history and stated that legislative history applies in court when there is ambiguity and confusion as to what a statute means. He stated that statutes are also subject to court interpretation or case law. He referred to Mr. Maynard's "legal research" memo dated July 5, 2001 and stated that it cited very persuasive case law and that Mr. Barnard has not cited any case law to the contrary for the proposition that a PUD is not an amendment to the zoning ordinance. He stated the statute that was adopted in Minnesota, this past legislative session, very clearly applies to zoning and rezoning and not to PUDs and that if it were intended to apply to PUDs, it would have said that. He stated that if the Minnesota legislature intended that the statute could tell cities to change to a majority from a super majority the statute would have said "must", not "may" and stated that if there were a controversy between the meaning of the words in a statute and the legislative history, the meaning of the words would prevail. He stated he thinks it makes good sense to keep the super majority policy that now exists. He stated that in terms of council members needing rational reasons to turn down a request for PUD two council members could have rational reasons just as much Minutes of the Golden Valley Planning Commission July 23, 2001 Page 5 as three members could. He stated he disagreed with the argument that a court challenge in this situation would automatically go against the City and that it does not make sense to have less than a super majority for a PUD because of the special nature and wide scope of PUDs. Nathan Fletcher, 4791 34th Avenue North stated concern about more and more people moving into Golden Valley and that there is less and less open space and that easing the requirements and bringing the vote down for PUDs doesn't seem like it's good timing. George Guthrie, 305 Sunnyridge Lane asked what the impetus is for the proposed voting change and asked if someone could explain to him why the voting requirements are being changed. Pentel stated that one of the reasons was the change in state legislation and asked Barnard if he wanted to respond. Barnard agreed and stated that the Minnesota legislature has already acted and the legislation is already effective. Pentel closed the informal public hearing. Eck stated that the word "may", opposed to "shall" or "will", still bothers him and stated that if the state legislature had intended that the voting requirement change was a firm requirement to be imposed on municipalities the legislation would have said "shall" or "will". Barnard stated that law adopting the original two-thirds voting requirements had the same language in it. He stated that was interpreted by the courts to mean that the only way cities could rezone was with a two-thirds majority vote and they changed the phrasing in the statute by changing the two-thirds to majority. McAleese stated that there is another part of the state statute that states when cities vote on things, they will vote using a majority unless there is specific language somewhere else in the statute that states they can use a super majority. He stated if that is true, then the use of the word "may" in the statute really means "shall" as it applies to the zoning code generally. He stated there is still an issue about the interpretation applying to PUDs. He stated that as a matter of public policy it makes sense to him to maintain the super majority for PUDs, but stated this is an area of law where it is appropriate to defer to the City Attorney's opinion and he is going to support him and recommend that the proposed voting requirement change goes forward to the City Council. Eck asked McAleese in spite of how he feels personally, if a test case were brought forward if he thought it would not be supported in court test. McAleese stated he didn't know how a court case would go, but when it comes to issues of law, he defers to the City Attorney. Pentel asked McAleese if he thinks the statute applies to PUDs. McAleese stated he doesn't think the law necessarily applies to PUDs, but when the other issues are considered, the wisest course is to make the change and that's why he Minutes of the Golden Valley Planning Commission July 23, 2001 Page 6 is supporting the change. He stated if it's an argument between attorneys he would vote with the City Attorney. Groger stated he has a strong belief in majority rule and majority vote. He stated that he didn't believe a minority should be able to block the will of the majority. He stated the City Attorney has outlined a logical case that if rezoning matters are being changed to a majority vote, it does make sense that the CUP and PUD ordinances should also be by majority vote. He stated that the elected officials and the Planning Commission would need to be that much more careful and vigilant with their votes. Eck asked Groger how he then rationalizes the retention of a super majority when it comes to rezoning from residential to commercial and industrial. Groger stated that that specific exception is part of the state statute and there is no choice about that. Pentel stated she is troubled, knowing that a particular proposal is waiting for this change, because Golden Valley already has a policy in place and the new law would be changing the rules of the game. She stated she is convinced that this change needs to be done in terms of the rezoning sections of the code. She stated she would be more comfortable changing the super majority vote if the City had in place, a changed PUD ordinance that required more from developers up front, encouraged more participation from the public and meaningful questioning by the Planning Commission prior to proposals going forward. She stated she could not support the portion of this change to the PUD ordinance because the Planning Commission and City Council are in the process of changing the PUD ordinance. She stated that she could not support the proposal if it goes forward as one package with the PUD ordinance included. Shaffer stated there are a lot of persuasive arguments both ways. He stated he thinks that the PUD ordinance is part of the zoning code and that he's not sure the Planning Commission has a lot of control over changing the rules of the game because the State changed the rules, not the City. He stated that because a PUD is such a broad sweeping ordinance, he thinks it should stay a super majority vote, however, he recommended that the issue go forward to the City Council. Eck stated that he would support retaining the super majority vote for PUDs. MOVED by McAleese, seconded by Groger and motion carried unanimously to approve the proposed amendment to change the voting requirements from a two-thirds majority vote to a simple majority vote only in section 11.80, subd. 2, and section 11.90, subd. 3. MOVED by McAleese, seconded by Groger to approve the proposed amendment to change the voting requirements from a two-thirds majority vote to a simple majority vote in section 11.55. Commissioners Pentel and Eck voted against the proposal -- Short Recess -- Minutes of the Golden Valley Planning Commission July 23, 2001 Page 7 IV. Reports on Meetings of the Housing and Redevelopment Authority, City Council, Board of Zoning Appeals and other Meetings There was discussion about the July 17 Council Meeting. Olson stated that he was expecting Carousel Automobiles General Plan application soon. Olson stated that the HRA would be considering the Sheriff Site at their August meeting V. Other Business There was no other business discussed. VI. Adjournment The meeting was adjourned at 8:25 pm.