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01-26-15 PC Minutes Regular Meeting of the Golden Valley Planning Commission January 26, 2015 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, January 26, 2015. Vice Chair Cera called the meeting to order at 7 pm. Those present were Planning Commissioners Baker, Blum, Cera, Johnson, Segelbaum, and Waldhauser. Also present was Planning Manager Jason Zimmerman, and Administrative Assistant Lisa Wittman. Chair Kluchka was absent. 1. Approval of Minutes December 22, 2014, Regular Planning Commission Meeting Baker referred to the last paragraph on page 7 and said the word "this" should be changed to the word "thinks." Waldhauser referred to the sixth paragraph on page 5 and said the word "conscience" shauld be changed to the word "conscious." Waldhauser referred to the Laurel Ponds PUD public hearing. She said that the discussion regarding fences was to preclude them along the property lines, but to allow them around patios. However, the condition in the recommendation said fences are prohibited. Zimmerman clarified that fences would be prohibited, but that privacy screening around patios would be permitted. MOVED by Baker, seconded by Johnson and motion carried unanimously to approve the December 22, 2014, minutes with the above noted corrections. January 12, 2015, Joint City Council and Planning Commission Meeting MOVED by Waldhauser, seconded by Blum and motion carried unanimously to approve the January 12, 2015, minutes as submitted. 2. Informal Public Hearing — Property Rezoning — 6000 Duluth Street— King of Grace Lutheran Church and School - Z011-15 Applicant: King of Grace Lutheran Church and School Addresses: 6000 Duluth Street Purpose: To rezone the property from I-1 Institutional with a setback restriction to I-1 Institutional without restrictions. � Minutes of the Golden Valley Planning Commission January 26, 2015 Page 2 Zimmerman reminded the Commission that this same request was heard in 2013. At that time the Applicant withdrew their application before they went before the City Council. Zimmerman discussed the current zoning of the property and explained the Applicant's request to rezone their property in order to remove a setback restriction that requires a 120 foot setback along Kenneth Way. He stated that this area was previously zoned Single Family residential, but was rezoned to Institutional in 1969. He explained that during the rezoning process a protective covenant with the surrounding neighbors was also established enforcing the 120 foot setback restriction. He stated that the covenant was effective through 1999 with a clause for an automatic 30 year extension unless a majority of neighbors agreed to remove it. He added the covenant is a separate issue from the zoning restriction and that the City Attorney has advised they be dealt with independently. He stated that staff is recommending approval of the Applicant's request to rezone the property without restriction. Cera noted that in 1969 the City approved the rezoning by adopting an ordinance. He asked about today's rezoning process. Zimmerman stated that rezonings are approved by ordinance and that the Official Zoning Map is also amended. Cera asked if the original ordinance would need to be rescinded. Zimmerman said the City Council would rescind the original ordinance. Segelbaum said he doesn't recall seeing additional setback restrictions placed on properties in the past, and that people usually just enter into private covenant agreements. He asked Zimmerman if he has seen other situations similar to this one. Zimmerman said there are a couple of cases where restrictions were put in place at the time of rezoning, but not many. Segelbaum clarified that the Planning Commission's focus should be on the rezoning request and that the covenant is outside of their domain and is up to the parties in the covenant to change it. Zimmerman agreed. Baker asked how the status of the covenant would affect the rezoning. Zimmerman stated that nothing can happen in the 120 foot setback area unless both restrictions are removed. He added that if the zoning restriction is removed and the covenant is determined to be invalid, then the property would have the typical 35 foot front yard setback area. Blum asked if there are many similar institutions in Golden Valley that have the older type of zoning. Zimmerman said no and explained that the unusual thing in this case is that it was residential property that was rezoned to Institutional which concerned neighbors who thought there would be houses built there, not an Institutional use. Blum asked if it is correct to say that the rest of the Institutional uses in Golden Valley are zoned without the restrictions this one has. Zimmerman said yes. Erwin Ekhoff, Administrative Pastor, King of Grace Church, said they are seeking to rezone their property to the I-1 Institutional Zoning District with no special restrictions. He said their request is to make full use of their property in keeping with present codes just as all other property owners under this zoning category. He stated that he met with City staff to discuss Minutes of the Golden Valley Planning Commission January 26, 2015 Page 3 the covenant as well as MN statute 500.20 which speaks to private covenants more than 30 years old and concludes that they may be disregarded. He referred to a site plan of their property and explained that they would like to move their existing playground from the east side of their property, which is in a traffic area, to the north side of the property so it is safer. Cera asked Ekhoff if discussions have occurred with the other covenant members/neighbors. Ekhoff said no because the opportunity hasn't been right yet. Segelbaum asked Ekhoff if he has heard comments from any of the neighbors. Ekhoff said no. Waldhauser asked about the landscaping plans along the north side of the property. Ekhoff said they've planted between 20 and 27 trees on the north side of their property. Johnson asked how the north area of the property is currently used. Ekhoff said it is used as an open playfield area. Cera asked Ekhoff if they are willing to add more screening along the north side of the property. Ekhoff said they would work with the City regarding landscaping and screening. Segelbaum asked Ekhoff if they have plans for any future building expansions. Ekhoff said right now the plan is to move the playground. He said he doesn't foresee any construction on the north part of their property. Waldhauser asked Ekhoff if they have plans to expand their parking area. Ekhoff said no. Baker asked Ekhoff about their membership projections. Ekhoff said their membership is holding and not declining. Carol Lansing, Attorney with Faegre Baker Daniels, 90 South 7'h Street, Minneapolis, reiterated that the covenant is a private legal matter to be handled outside of the zoning decision. She stated that the City has determined that a 35 foot front yard setback is appropriate in the I-1 Zoning District citywide, therefore they are requesting removal of the very old restriction so that they can be with the modern times and be treated the same as other Institutional properties in the City. She said that from a legal standpoint there is no basis to put conditions on rezonings like was done in 1969. She added that state statute says that all zoning regulations within a zoning district are to be uniform and applied uniformly or you will run into constitutional problems. Segelbaum stated that a deal was struck with the neighborhood back in 1969 with the covenant and the rezoning and questioned the basis for going back on that deal and why it wouldn't be binding. Lansing said that with respect to the covenant the 30 year duration restriction was in place and all parties should have been aware that was the law they were working with and by putting in an automatic extension they couldn't get around the statute. She read a portion of case law regarding the purpose of the statute and the practical limitations. She said 45 years ago times were different, the state has a statute in order to not unduly hamper a city's ability to guide land use through future times and that the statute Minutes of the Golden Valley Planning Commission January 26, 2015 Page 4 that limited the duration to 30 years was in place then, so really the parties entered an agreement that couldn't be enforced for more than 30 years. Segelbaum asked Lansing if she is saying that the condition put on the rezoning done in 1969 is invalid. Lansing said she thinks it is invalid and that if the City refuses to remove it, it would be the same as imposing it, and would be treating this I-1 property differently than others. Segelbaum said it would not be considered a taking if it was already taken 30 years ago. Cera opened the public hearing. Jay Dworsky, 5930 Kenneth Way, asked how things are different today than when the covenant was made in 1969, and how the covenant can be separate from the rezoning. Joel Hendrickson, representing Joel and Lois Hendrickson, 6000 Kenneth Way, said he knows the City has put a moratorium on dividing property and he appreciates the foresight of the City stepping back from making actions that affect the future. He said the covenant regarding this property wasn't imposed by the City, it was an agreement with the property owners and the owner of the church at the time to give some assurance to the neighbors that the property would remain residential by nature. He said there has been very little communication with the neighbors by the church. He stated that the City has a jewel in the rough with the green space in the covenant area that would be protected until 2029. He said there have only been two covenants like this, both were with churches, and this is the only remaining covenant in Golden Valley. He asked that the City consider what legal covenants are versus restrictive conditions. He stated that if the land were rezoned it would really be supporting a possible daycare or a senior high rise and proposals would have to be considered according to the new zoning. He said the City also needs to consider how much activity the neighborhood can support, the size of the structures and existing paved areas, and where the rain water filters before it goes into Bassett Creek. He said ideally the City would honor the covenant that is in place which assured the homeowners a residential look and feel until 2029. He said if the rezoning is granted, he implores the City to require a performance bond for the landscaping. Richard Ekelund, 6020 Kenneth Way, said he enjoys the green space across the street and he is concerned about it disappearing. He said there is no reason the neighbors and the church can't get together and discuss the issues. He said he is also concerned about his property value going down. Barbara Paterson, 2040 Adair Avenue North, said the church has planted approximately seven trees and it is a completely open space that is used for the school's physical education. She said putting the playground on the north end of the property will eliminate the area they use for physical education which is a Board of Education requirement. Gary Dahlgren, 6050 Kenneth Way, said he likes the idea of having good churches and schools and has nothing against the church, but he does have concerns about what is done across the street from his property. He said the church's plans are vague and if the rezoning starts to impact his property, he wants to be involved and have input and judgment in what happens. Minutes of the Golden Valley Planning Commission January 26, 2015 Page 5 Seeing and hearing no one else wishing to comment, Cera closed the public hearing. Segelbaum referred to the question regarding how things are different between now and 1969 when the zoning restrictions were adopted. Zimmerman said the church could speak to what circumstances have changed for them. He said in terms of the zoning, the City would not add conditions, and would uniformly apply the zoning requirements. Segelbaum asked if the Applicant was required to have a neighborhood meeting. Zimmerman said no. Segelbaum asked if the Applicant could add a daycare or a senior high rise. Zimmerman said those uses would require a Conditional Use Permit. Cera asked if there are impervious surface requirements in the I-1 Zoning District. Zimmerman said that disturbances over a certain amount would require City and Bassett Creek Water Management Commission review. Segelbaum asked if there are water run-off restrictions in place. Zimmerman reiterated that there would be review and permits required with site disturbance. Segelbaum asked about the idea of requiring a performance bond for landscaping. Zimmerman said it is common to have an escrow in place, but he is not sure if the City can force them to have an escrow if they aren't constructing anything. Waldhauser asked if lawn space is considered landscaping. Zimmerman said the Zoning Code says the front setback areas have to be planted and landscaped and contain no off-street parking. Baker asked if further review would be required to relocate the playground. Zimmerman said it depends how much area is disturbed. Baker asked if there would be an opportunity for the Planning Commission to put conditions on landscaping or screening. Zimmerman said the Planning Commission can recommend and encourage additional landscaping and screening, but can't place conditions on the rezoning. Baker said he is concerned about the lack of communication between the church and the neighborhood. He said he would like there to be deliberate communication to resolve differences. Segelbaum asked if a meeting with the neighbors could be made a condition. Zimmerman said the Commission can recommend that a meeting be held with the neighbors. Segelbaum referred to the Applicant's attorney's statement about constitutional violations and questioned if that really is what the law says. Zimmerman said he hasn't been involved in the discussions with the attorneys. Waldhauser said the notion that properties zoned the same have to be treated the same has been made very clear to them. Segelbaum said this property is zoned differently and he would like to hear from the City Attorney and have the Applicant meet with the neighbors in the meantime. Cera said a lot of the issues in this case are beyond zoning and will be worked on outside of the City's review process. Waldhauser said she agrees that it was not legal to differentiate this Institutional property from other Institutional properties. Segelbaum said he does not want to state that what was done in 1969 was invalid. Minutes of the Golden Valley Planning Commission January 26, 2015 Page 6 Johnson said every property owner is going to go by their best interests and it makes sense to him to move the playground out of a traffic area. Blum said it is unfortunate that the ordinance language matches the covenant language. He said he wants it to be clear that even if the ordinance changes, the covenant still needs to be addressed. He said it seems fair and equitable to rezone the property to allow them to be like every other I-1 Institutional property. Cera summarized the recommendations the Commissioners discussed as follows: 1) A meeting with the church and the neighbors should be held prior to City Council consideration, 2) guidance should be received from the City Attorney regarding the ordinance language, and 3) consideration should be given to additional buffering and landscaping. Waldhauser said she would like to clarify that the City Attorney's guidance should be related to the zoning ordinance and not the covenant. Johnson said he would like the recommendation regarding the neighborhood meeting not to be just with the parties of the covenant since they are not supposed to consider the covenant language. MOVED by Baker, seconded by Blum and motion carried unanimously to recommend approval of rezoning the property at 6000 Duluth Street from I-1 Institutional with a setback restriction to I-1 Institutional without restrictions with the following recommendations: 1) A meeting with the church and the neighbors should be held prior to City Council consideration, 2) guidance should be received from the City Attorney regarding the ordinance language, and 3) consideration should be given to additional buffering and landscaping. --Short Recess-- 5. Reports on Meetings of the Housing and Redevelopment Authority, City Council, Board of Zoning Appeals and other Meetings Baker gave an update on the most recent Bottineau community meeting and stated that there will be a community open house on January 29. Baker gave an update on the neighborhood meeting held on January 21 regarding the subdivision moratorium. 6. Other Business • Council Liaison Report No report was given. 7. Adjournment The meeting was adjourned at 8:17 pm. Minutes of the Golden Valley Planning Commission January 26, 2015 Page 7 r� � . . � � Charles D. Segelbaum, Secretary Li Wittman, Administrative Assistant