Planning Commission

PLANNING COMMISSION Regular Meeting September 29, 2014 Page 1 of 16 Regular Meeting: Planning Commission Committee Location: City Hall, Council Chambers, 515 2nd Avenue SW, City of Minot, ND Meeting Called to Order: September 29, 2014 at 5:30 p.m. Presiding Official: Chair John Zimmerman Secretary: Sybil Tetteh Members in Attendance: Chairman John Zimmerman, Vice-chair Pam Karpenko, Wally Berning, Larry Holbach, Ryan Conklin, Jon Hanson, Todd Koop, Bob Wetzler, Kevin Mehrer, Tyler Neether, Todd Wegenast, Travis Zablotney Members Absent: Brenden Howe City Staff Present: Donna Bye, City Planner; Sybil Tetteh, Asst. City Planner; Kelly Hendershot, Asst. City Attorney; Lance Meyer, City Engineer; Jacqueline Aucker, Asst. City Engineer; Stephanie Frizzo, Traffic Engineer; Bob Lindee, Public Information Officer; Mitch Flanagan, Building Official; Jason Sorenson, Asst. Public Works Director; Ed Hausauer, Fire Marshal; Jason Olson, Police Chief; Lee Staab, City Manager Others Present: Aldermen Schuler, Olson, Pankow, Lehner, Jantzer, Rolly Ackerman, Larry Gullickson, Ed Kirkelie, Ken Herslip, Sean Weeks, Susan Hoffer, Mike Lucy, Jon Backes, Rich Campbell, and many others Meeting Called to order by Chairman John Zimmerman Approval of 8/25/2014 Regular Meeting Minutes Motion by Karpenko, second by Neether to approve the 8/25/2014 Regular Meeting Minutes, and carried by the following roll call votes: ayes: Zimmerman, Karpenko, Berning, Holbach, Conklin, Hanson, Koop, Wetzler, Mehrer, Neether, Wegenast, Zablotney. Nays: none Motion passed RECOMMENDATIONS Approval of Agenda Items (#1, 2, 6, 7, 8, & 10) included in the Consent Agenda. Agenda Item #5 Pulled by City Engineer Motion by Neether, second by Koop to approve consent items with staff recommendation(s); item (#5) pulled by City Engineer and was carried by the following roll call votes: ayes: 1|Page PLANNING COMMISSION Regular Meeting September 29, 2014 Page 2 of 16 Zimmerman, Karpenko, Berning, Holbach, Conklin, Hanson, Koop, Wetzler, Mehrer, Neether, Wegenast, Zablotney. Nays: none Motion passed. Item # 1: As part of consent motion - other business: The Planning Commission approved a request by Jason Bennett for a variance to the front yard setback from the required 25’ to approximately 18.16’ in order to replace an existing flood damaged garage with a larger garage in the same location on Rearrangement Lots 9-17, Block 2, Dacotah Homes 2nd Addition, Lot 17. This property is located at 2432 2nd Ave SW. BEFORE CERTIFICATE OF OCCUPANCY IS ISSUED: Sidewalks may need to be brought up to code. FINDING OF FACT: 1. It is a property right enjoyed by neighbors. 2. It will be a replacement building for an existing structure with the same setback. 3. The total coverage and floor area does not exceed those of the primary structure as required by Section 5-7 (e). 4. The fact that the variance(s) can be granted without substantial detriment to the public good and without actually impairing the general purpose and intent of the comprehensive plan. Motion by Neether, second by Koop to approve consent items with staff recommendation(s); and was carried by the following roll call votes: ayes: Zimmerman, Karpenko, Berning, Holbach, Conklin, Hanson, Koop, Wetzler, Mehrer, Neether, Wegenast, Zablotney. Nays: none Motion passed. Item # 2: As part of consent motion, it was recommended: That the City Council pass a motion to approve the request by 55th Crossing Phase 1, LLC, Mike Duffy, to subdivide 55th Crossing 6th Addition, Block 2, Lots 1 & 2 into 2 lots to be known as 55th Crossing 8th Addition, Lots 1 & 2. Also, that City Council introduce an ordinance on first reading to change the zone from C1 (Neighborhood Commercial) District to P (Public) District on proposed 55th Crossing 8th Addition, Lot 1. Proposed 55th Crossing 8th Addition, Lot 2 will remain C1 (Neighborhood Commercial) District. This property is located east of 55th Street SE and between 16th & 17th Avenues SE. BEFORE BUILDING PERMITS ARE ISSUED: 1. Storm Water Management Plans will be required and approved by the City. 2. Erosion Control practices will need to meet State of North Dakota requirements and approved by the City Engineer. 2|Page PLANNING COMMISSION Regular Meeting September 29, 2014 Page 3 of 16 BEFORE CERTIFICATE OF OCCUPANCY IS ISSUED: 1. Sidewalks will be required. 2. Public Utility Fees will be required. FINDING OF FACT: 1. The subject property is located to adjacent property zoned and guided as Public. 2. The proposed subdivision is in harmony with proposed use. Motion by Neether, second by Koop to approve consent items with staff recommendation(s); and was carried by the following roll call votes: ayes: Zimmerman, Karpenko, Berning, Holbach, Conklin, Hanson, Koop, Wetzler, Mehrer, Neether, Wegenast, Zablotney. Nays: none Motion passed. Item #3: Withdrawn by applicant prior to the meeting. Item #4: Other business: The Planning Commission approved requests by Larry Gullickson for a variance to the front yard setback on an existing home from the required 25’ to approximately 10’ and a variance to the front yard setback from the required 25’ to approximately 20’ to build a 24’ x 32’ garage on Keyes Amended Plat, Block 4, Lot 9. This property is located at 3925 10th Ave SE. THE FOLLOWING CONDITIONS SHALL APPLY 1. Site plan will indicate setbacks as follows 2. Setback between main house and garage as 6’ minimum. 3. Setback as 3’ on north side yard away from property line. 4. Setback as 3’ on west side yard away from property line (alley). ALTERNATIVE OPTIONS: 1. A modified garage dimension that will accommodate the required setbacks of 25’. FINDING OF FACTS: 1. Applicant’s request for reduced setbacks relating to the garage does not meet the criteria for granting a variance under the ordinance. 2. The garage can be built to conform to the setback requirements in our ordinance. 3. No hardship exists which would permit a variance of the setback requirements. The Planning Commission must make specific findings of fact relating to: 1. The condition(s) that exists with regard to the property which make the variance(s) appropriate under our ordinance; and 2. The fact that the variance(s) can be granted without substantial detriment to the public good and without actually impairing the general purpose and intent of the comprehensive plan. 3|Page PLANNING COMMISSION Regular Meeting September 29, 2014 Page 4 of 16 Larry Gullickson, applicant, stated his confusion about the staff report. He stated that the house is pre-existing and the garage will be located backed up to the back of the neighbor’s garage. He did not understand why the variance to setback for a new garage should be recommended for denial when the house is recommended for approval. City Planner explained that in older neighborhoods setbacks had not always been regulated. For existing structures financial institutions may require a variance be granted as legal approval by the City for a non-conforming property. In this case, staff felt that adding the home to the initial request for a variance to the garage setback would bring the property into compliance. Because a garage would be new construction, staff felt that setbacks could be met without creating further non-conforming structures in the neighborhood. The dimensions of the garage could be altered to comply with current requirements. Mr. Gullickson commented that many new vehicles are larger, so he did not feel altering the size of garage would be an option. Commissioner Zablotney stated that he did not agree with staff that this is not a right enjoyed by other property owners in the area. Motion by Zablotney, second by Karpenko to approve both variances based on the findings (1) that the requested setbacks in both requests are property rights enjoyed by others and (2) that the variances can be granted without substantial detriment to the public good and without actually impairing the general purpose and intent of the comprehensive plan and was carried by the following roll call votes: ayes: Karpenko, Holbach, Conklin, Hanson, Koop, Wetzler, Mehrer, Neether, Wegenast, Zablotney. Nays: Zimmerman, Berning Motion Passed. Item #5: That the City Council pass a motion approving the request by Terry Hunter to subdivide Opstad 2nd Addition, Lot 1 into 2 lots to be known as Opstad 5th Addition, Lots 1 & 2. Also, that City Council introduce an ordinance on first reading to change the zone from AG (Agricultural) District to RA (Agricultural Residential) District on proposed Opstad 5th Addition, Lots 1 & 2. This property is located along County Road 15 and northwest of Green Thumb Drive. BEFORE BUILDING PERMITS ARE ISSUED: 1. Erosion Control practices will need to meet State of North Dakota requirements and approved by the City Engineer. FINDING OF FACT: 1. Adjacent properties are currently zoned both AG and RA. City Engineer requested that this application be taken off the consent list. He stated he has no problems with this plat, but it is affected by the 100 year flood plain. Ward County has adopted a flood plain management requirement to build structures 1 foot above the anticipated Mouse 4|Page PLANNING COMMISSION Regular Meeting September 29, 2014 Page 5 of 16 River enhanced flood protection water surface elevation, or 3’ above the current flood plain elevation. This requirement is for new construction on properties outside Minot’s city limits and the extra-territorial area. City Engineer felt that a condition should be added to this plat with the same requirement. Commissioner Zablotney commented that he did not feel that the City should try to impose this condition. There was discussion regarding whether county or city would enforce requirements of this type in the ETA. Building permits are under City jurisdiction in the extra-territorial area. Motion by Zablotney, second by Holbach to approve agenda item without City Engineer’s conditions, failed by the following roll call votes: ayes: Conklin, Holbach, Koop, Mehrer, Zablotney. Nays: Zimmerman, Wegenast, Neether, Wetzler, Karpenko, Hanson, Berning Motion failed to pass 5 ‘yes’ to 7 ‘no’ votes Motion by Karpenko, second by Neether to approve with City Engineer’s conditions and was carried by the following roll call votes: ayes: Zimmerman, Wegenast, Neether, Wetzler, Karpenko, Hanson, Berning, Koop, Zablotney, Conklin. Nays: Holbach, Mehrer Motion Passed Item #6: As part of consent motion, it was recommended: That City Council make a motion to approve the request by Roers Development, Inc., Larry Nygard, to subdivide Southgate 4th Addition, Lot 8 into 2 lots to be known as Southgate 7th Addition, Lots 1 & 2. This property is located at 1800 35th Ave SW. BEFORE BUILDING PERMITS ARE ISSUED: 1. Storm Water Management Plans will be required and approved by the City Engineer. 2. Erosion Control practices will need to meet State of North Dakota requirements and approved by the City Engineer. FINDING OF FACT: 1. The subject property is located in a C-2 zoning district for which the principal use of the land shall be to provide an area of service facilities to the motoring public. Motion by Neether, second by Koop to approve the request based on Staff Recommendations and was carried by the following roll call votes: ayes: Zimmerman, Karpenko, Berning, Holbach, Conklin, Hanson, Koop, Wetzler, Mehrer, Neether, Wegenast, Zablotney. Nays: none. Motion passed Item #7: As part of consent motion – other business: 5|Page PLANNING COMMISSION Regular Meeting September 29, 2014 Page 6 of 16 The Planning Commission approved a request by Mike Christianson for a variance to the front yard setback from the required 25’ to approximately 19’ for the purpose of bringing an existing building up to current building codes on Summit Park Addition, Block 3, Lots 23 & 24. This property is located at 15 11th Ave SE. CONDITIONS: 1. The porch entry shall match the same exterior materials as the existing building. FINDING OF FACT FOR APPROVAL: 1. The subject property is zoned R1 single family residential. 2. The subject property is an existing legal non-conforming structure. 3. The existing porch entry does not meet the required 25’ front setback requirement. 4. The new structure will replace the existing porch entry in the same location as the existing. 5. The new structure does not increase the existing legal non-conformity. 6. The setback requested conforms with the property rights enjoyed by neighboring properties. 7. Granting of the variance can be done without substantial detriment to the public good and without impairing the general purpose and intent of the comprehensive plan. Motion by Neether, second by Koop to approve the request based on Staff Recommendations and was carried by the following roll call votes: ayes: Zimmerman, Karpenko, Berning, Holbach, Conklin, Hanson, Koop, Wetzler, Mehrer, Neether, Wegenast, Zablotney. Nays: none Motion passed Item #8: As part of consent motion, it was recommended: That the City Council pass a motion approving the request by Lenny Behm to subdivide an unplatted portion of the SE1/4NW1/4, Section 29-155-83 into 4 lots to be known as Trestle Ridge 3rd Addition, Lots 1-4. Also, that City Council introduce an ordinance on first reading to change the zone from AG (Agricultural) District to R1 (Single Family Residential) District on proposed Trestle Ridge 3rd Addition, Lots 1-4. The property is located south of 16th Avenue SW and east of County Road 17. BEFORE BUILDING PERMITS ARE ISSUED: 1. Erosion Control practices will need to meet State of North Dakota requirements and approved by the City Engineer. 2. Public land dedication will be required. 3. 75’ right-of –way needs to be dedicated a long County RD 17. 4. Rural septic sewer study will need to be approved prior to issuing of building permit. 5. Storm water management plan required. FINDING OF FACT: 6|Page PLANNING COMMISSION Regular Meeting September 29, 2014 Page 7 of 16 1. Proposed subdivision and zone change is in harmony with surrounding properties Motion by Neether, second by Koop to approve the request based on Staff Recommendations and was carried by the following roll call votes: ayes: Zimmerman, Karpenko, Berning, Holbach, Conklin, Hanson, Koop, Wetzler, Mehrer, Neether, Wegenast, Zablotney. Nays: none Motion passed. Item # 9 – Other business: The Planning Commission held the request by BK Properties, LLC, Ken Herslip to subdivide an unplatted portion of Government Lot 2, Section 5-154-82 into 3 lots to be known as Urijahs 1st Addition, Lots 1-3. Also, the request to change the zone from AG (Agricultural) District to R1 (Single Family Residential) District on proposed Urijahs 1st Addition, Lots 1-3 was held. Also, the Planning Commission held the request for a variance to the length of the cul- de-sac from the allowed 500’ to approximately 834.83’ on proposed Urijahs 1st Addition, Lots 1-3. This property is located south of 37th Ave SE and west of County Road 14. If City Council decides to consider the item, the following should be required. BEFORE BUILDING PERMITS ARE ISSUED: 1. 40’ right-of-way needs to be dedicated along 37th Ave. 2. 50’ right-of-way needs to be dedicated along County Road 14. 3. Storm Water Management Plans will be required and approved by the City Engineer. 4. Erosion Control practices will need to meet State of North Dakota requirements and approved by the City Engineer. 5. Park dedication will be required. BEFORE CERTIFICATE OF OCCUPANCY IS ISSUED: 1. Sidewalks will be required if roads are built to urban standards. 2. Public Utility Fees will be required. FINDING OF FACT: 1. The subject property is guided for Very Low Density Residential and proposed use is in harmony with the Comprehensive Plan. Ed Kirkelie, adjacent property owner, stated that a tremendous amount of dirt work has been done on the property and drainage problems exist. The work has caused topographical changes which Mr. Kirkelie had requested the City Engineering Department to review. He would like to see the configuration of proposed Lot 3 changed because it is a hill top and runoff goes directly to his property. He has concerns for his well, which is located close to his property line, if a septic system is installed on the lot as it is currently proposed. He stated that the applicants had promised to put up a silt fence to protect his property and his neighbor’s property, but they had 7|Page PLANNING COMMISSION Regular Meeting September 29, 2014 Page 8 of 16 not done so on his property. Mr. Kirkelie also questioned the request for R1 zoning instead of RA and what the plans are for these proposed lots in the future, do they plan to develop several lots? Ken Herslip, the applicant, stated that he was sorry for any damage caused by his contractor. He said he has been on site and has not seen the damage that Mr. Kirkelie is reporting, did not find debris or silt on right-of-way or the culvert blocked. He said his contractor had installed a berm in the swale by Mr. Kirkelie’s property instead of a silt fence. Mr. Herslip stated that he is agreeable to combining Lots 1 and 3 into 1 lot, and to reducing the cul-de-sac to the allowed length of 500 feet. City Engineer stated that complaints had been received in May. City staff has been working with the contractor and Mr. Herslip to bring the project into compliance; however, necessary documents have not been submitted. Also, regarding the request for a longer than allowed cul- de-sac, it has been shown in the past to cause issues for access of emergency vehicles and utilities, as well as problems with maintenance by townships. There was discussion on the differences between R1 and RA zoning. Mr. Herslip also stated that right now he is only intending to subdivide for two lots so his family can build in the area, but in the future may want to divide into 8-12 lots. Motion by Karpenko, second by Holbach to deny the request for subdivision and zone change with Staff recommendations and failed by the following roll call votes: Ayes: Berning. Nays: Zimmerman, Karpenko, Holbach, Conklin, Hanson, Koop, Wetzler, Mehrer, Neether, Wegenast, Zablotney Motion failed. Motion by Karpenko, second by Holbach to hold the request for subdivision and zone change and carried by the following roll call votes: ayes: Zimmerman, Karpenko, Berning, Holbach, Conklin, Hanson, Koop, Wetzler, Mehrer, Neether, Wegenast, Zablotney. Nays: none Motion passed. Item #10: As part of consent motion, it was recommended: That the City Council pass a resolution to approve the request by Sundre Sand & Gravel, Dennis Nussbaum, for an interim use permit for 3 years to reopen a gravel pit and export material off of Whispering Meadows 4th Addition, Lot 2. Access for this property is located west of 6761 37th Ave SE. It is recommended that the request be subject to the following conditions: 1. Detailed site plan, details on access road improvements, reclamation and storm water plans shall be submitted and approved by staff prior to any exportation. A final screening and berming plan shall be submitted for approval by staff. 8|Page PLANNING COMMISSION Regular Meeting September 29, 2014 Page 9 of 16 2. Responses to IUP standards shall be submitted by the applicant and approved by staff. 3. Only excavation shall occur on site, no processing or crushing activities shall occur on site 4. The outer limit or edge of any extraction operation shall not be closer than one hundred feet (100') to any abutting property line. Soil excavation may occur within one hundred feet (100') of any property line when the proposed grading plan has been approved by the City Engineer. 5. Finished slopes or any edge contiguous to property owned by others shall not be less than a ratio of three feet (3') horizontal to one foot (1') vertical, or as approved by the appropriate regulating authority. 6. All trees, stumps and debris must be disposed of within thirty (30) days in a manner which complies with current regulations and which is consistent with the proposed end use plan. 7. No extraction operations shall be closer than one hundred feet (100') to the right of way line of any existing street, road or highway, except upon approval by the city council. 8. The operator shall be responsible for lowering any well so as to provide potable water for each individual whose well is affected by the proposed operations. 9. All rocks which are not crushed and which are one foot (1') or larger in size shall be removed from the site, buried after termination of operations, or used on site as a landscape feature. 10. The owner or applicant shall prevent water runoff damage, including erosion on adjacent property and the deposit of material by water runoff on adjacent property. A storm water management plan shall be approved by the City Engineer. 11. The applicant or owner shall submit a landscape screening plan consisting of suitable trees which shall be placed to eliminate unsightly view of the operations. 12. The operator shall operate and maintain all equipment in such a manner as to minimize air pollution. Any emission which can cause any damage to health, animals or vegetation or other forms of property or which can cause an excessive silting at any point or any emission of any solid or liquid particles in concentrations exceeding air quality regulations shall be prohibited. 13. All excavated materials shall be removed from the premises especially within highways, streets or other public ways as the council shall order and direct. 14. No noise resulting from the excavation use shall exceed the most current noise control regulations. 15. Any vibration resulting in any combination of amplitude and frequencies beyond the "safe" range of the most current standards of the United States bureau of mines for any equipment or structure shall be prohibited. 16. The slope of banks during the excavation of material shall be kept in such a condition so as not to be dangerous because of overhangs, sliding or caving banks. Such dangerous conditions shall be declared to be a nuisance and the city may give notice to the operator or owner to abate the same. 17. Upon closing operations or leaving any particular excavation or area in the site, the applicant shall regrade the area which he has excavated or disturbed in order that no slopes are steeper than three feet (3') horizontal to one foot (1') vertical 18. The hours of operation (limited to only excavation) shall occur only between 8:00 a.m. to 5:00 p.m. daily, provided that no excavation or trucking shall be conducted on Saturdays, Sundays or legal holidays with the exception of Columbus Day and Veterans Day except upon approval by the city council. Certain activities such as loading, maintenance and repair of equipment and hauling may be allowed; provided that these activities do not cause undue 9|Page PLANNING COMMISSION Regular Meeting September 29, 2014 Page 10 of 16 noise or disturbances to adjoining property or facilities and that these activities are specified in the operations plans and approved by the city at the time of issuance of the permit. 19. All fill material shall be clean, compactable fill, and shall not contain refuse, construction debris, or any other items (tires, barrels, furniture, etc.) not found in soils. The fill material must be approved by the city engineer and protective inspections division if the fill area will be used for a road or building construction site. 20. Security Requirement: The council shall require the applicant, owner or user of the property on which the proposed operation is located, to post a letter of credit acceptable to the city or cash escrow in such form and sum as the council shall determine, conditioned to pay the city the extraordinary cost and expense of repairing, from time to time, any highways, streets or other public ways where such repair work is made necessary by the special burden resulting from the hauling and removal of material from any operation; the amount of such cost and expense to be determined by the city engineer; and conditioned further to comply with all the requirements of this chapter, and the particular permit, and to pay any expense the city may incur by having to do anything which the applicant fails to do to comply with the terms of the conditional use permit. 21. Interim Use permit shall be valid for three years from date of issuance and begin once the Zone Change is complete. FINDING OF FACT FOR APPROVAL: 1) The subject property is zoned AG which allows mining as an Interim Use. 2) The activities will be limited to extraction of materials based on several conditions. 3) The IUP will be limited three years upon date of approval. 4) The conditions limiting the hours of operation and restriction on processing will allow the excavation activities to meet the standards of the IUP and will not be detrimental to neighboring properties. The use, with limits set by the conditions will allow for the use as allowed in the AG district but in a manner that is harmonious with general and specific standards of the city’s comprehensive plan. 5) The conditions require approval of a site plan meeting the standards of the IUP. The site was formally used as a gravel extraction site so the reuse as the same will be operated and maintained to be compatible with former use and will not change the essential character of the area. 6) The conditions limit use, hours of operations and other site related protections to allow the use while also limiting disturbance to neighboring properties. 7) The proposed mining use will have limited needs for essential public facilities and will not create additional need nor a burden on essential public facilities and services. 8) Conditions are set to limit use, hours of operation, site plan for truck routes so limit noise, odor, smoke, fumes or other disturbances to neighboring properties. 9) Conditions require approval of a site plan, prior to operation that provides detail on truck routes so that traffic is limited and will not negatively impact surrounding properties. 10) Conditions, limits on operation and expiration will protect surrounding properties form any loss, damage or depreciation in property values. Motion by Neether, second by Koop to approve consent items with staff recommendation(s); and was carried by the following roll call votes: ayes: Zimmerman, Karpenko, Berning, Holbach, Conklin, Hanson, Koop, Wetzler, Mehrer, Neether, Wegenast, Zablotney. Nays: no Motion passed. 10 | P a g e PLANNING COMMISSION Regular Meeting September 29, 2014 Page 11 of 16 Item # 11: That City Council schedule a public hearing to vacate Wheatland Way between Blocks 8 & 9, 55th Crossing 2nd Addition. This property is located south of 16th Avenue SE and west of 53rd Street SE. It is recommended that the request be subject to the following conditions: 1. Final approval following submittal of the O & E report. FINDING OF FACT FOR APPROVAL: 1. The subject property is zoned and guided for manufactured housing use. 2. The subject property is currently platted with right-of-way for Wheatland Road between Blocks 8 & 9, 55th Crossing 2nd Addition. 3. The subject property will replatted to shift the north/south right-of-way to maintain connection to 16th Avenue SE. Sean Weeks, representing the applicant, Justin Smith, stated they concur with the findings. There will be a 24’ easement provided for utilities. Motion by Berning, second by Zablotney to approve the request based on Staff recommendations and was carried by the following roll call votes: ayes: Zimmerman, Karpenko, Berning, Holbach, Conklin, Hanson, Koop, Wetzler, Mehrer, Neether, Wegenast, Zablotney. Nays: None Motion passed. Item # 12: Other Business The Planning Commission affirmed its prior decision to approve a request by First Western Bank and Trust for a variance on Brooklyn Addition, Block 81, Lots 1-20 to the required parking from 131 to 110, a difference of 21 spaces, a 16% variance and for a variance to the required width of a parking stall from 10 feet to 9 feet. The property is located at 900 South Broadway. FINDINGS OF FACT: 1. Planning Commission granted FWBT’s variances on August 25, 2014 based on the following findings of fact: a. FWBT has a hardship because exceptional topographical conditions exist that do not allow for the full use of the property by the applicant. b. The variances can be granted without substantial detriment to the public good and without actually impairing the general purpose of the comprehensive plan. 2. The August 25, 2014 findings of fact are still applicable to the variances granted to FWBT which are now appealed by the neighbors. 11 | P a g e PLANNING COMMISSION Regular Meeting September 29, 2014 Page 12 of 16 The City Planner provided some background to this agenda item, and stated that after the variances were approved by Planning Commission on August 25, 2014, the neighborhood appealed the decision. According to the City of Minot Zoning Ordinance Section 30-6, an appeal requires that the Planning Commission conduct a public hearing on the appeal and make recommendation to City Council. Section 30-6 then requires City Council to also conduct a public hearing and make a final decision. Staff previously supported granting of the variances to the required parking from 131 to 110, a difference of 21 spaces, a 16% variance, and a variance to the required width of a parking stall from 10 feet to 9 feet based on the finding of facts, and continues to support approval based on these factors. There had been a question of conflict of interest for two members of the Planning Commission. The Assistant City Attorney stated she had researched conflict of interest under Section 44-04- 22 of the North Dakota Century Code as well as several reviews by the Attorney General and the North Dakota Supreme Court, providing guidelines on addressing such conflict. The general rule for members of a governing body is that a member of the governing body who is present has a duty to vote. When no statutes apply that requires abstention and the member does abstain, that member will be considered to have voted with the majority. A conflict exists if a member has a direct and substantial personal or pecuniary interest in the matter being decided by the board or body. Attorney General opinions give guidance as to how to approach these types of issues. A member should discuss the issue and facts with the city attorney and most of these issues can be resolved during that consultation. In the event the issue cannot be resolved during that consultation, the member may request that the majority of the board or body determine whether the member should be required to vote on the matter before the board or body. In these cases, the Assistant City Attorney spoke with the members previously and determined that no conflict existed based on the facts presented. Commissioners Zimmerman and Wegenast both have family members (Zimmerman’s brother and Wegenast’s wife) who are employed by First Western Bank, but facts provided established that neither member will receive any direct or substantial personal or pecuniary benefit or detriment based on the decision relating to FWBT’s variances.Commissioner Zimmerman also expressed he has business dealings with the bank and is partners in an LLC (unrelated to FWBT or the variance requests) with a member of the FWBT Board of Directors. Again, based on the facts provided, Commissioner Zimmerman will not receive any direct or substantial personal or pecuniary benefit or detriment based on the decision relating to FWBT’s variances. The Assistant City Attorney also stated that due to on-going litigation, the discussion at the hearing should only address the August 25t, 2014 approval of two parking variances. Susan Hoffer, in opposition, stated that what has been brought before the Commission is a new request for a variance. That request was initiated based on the City Planner’s letter and notice of public hearing on August 12, 2014. Ms. Hoffer stated that on September 3, 2014, she went to the City Planning office and requested a copy of the complete file for FWBT. A copy was provided, and she and neighbors have reviewed that copy. They found that documents were referenced in the files that were not in their copy. A request that specially designated those items was filed under the open records law. The city denied the request in writing on the basis of the pending law suit. As part of the records request she received copies of two certificates of occupancy. One certificate was designated as a partial or initial certificate of occupancy which was dated August 22, 2014 for access and use of the lower parking garage. She stated she asked the Building 12 | P a g e PLANNING COMMISSION Regular Meeting September 29, 2014 Page 13 of 16 Official if he verified 20 parking spots in the garage and he responded he had not and would not be doing so. She felt inspection should have been required before the certificate of occupancy was issued. The neighborhood does feel that there is a conflict of interest involved in this and is only asking for fair treatment in this matter. Ms Hoffer stated that a notice of public hearing was dated August 12, 2014 informing adjacent property owners that a new variance had been requested, and that request would be heard at the August 25, 2014 Planning Commission meeting. Ms. Hoffer asked on what basis that letter was sent, since the application by FWBT was signed and dated August 13,2014. Also, the planning application states that an application must be submitted by the 15th of the month to be heard the following month, so this request should have gone to the September Planning Commission meeting. On August 18, 2014, the City Planner sent a letter to the neighborhood with an update on the parking variance granted in March, 2013. That letter said the prior parking variance was void as JLG had provided inaccurate square footage calculations, and “Going forward, in order to be in compliance with the City of Minot Zoning Ordinances and to receive a certificate of occupancy, FWBT will need to comply with the Zoning Ordinances or receive a variance.” Michael Lucy, in opposition, also commented on the date of the notification letter and the deadline for applications to be submitted. He stated that FWBT was given special treatment. Mr. Lucy also complained about the denial of public records request and stated that access to documents necessary for this meeting had been denied to them. The City Planner stated that all notification letters are done as bulk mailing, with the secretary making an estimate of when they may be mailed out. The actual mailing may be earlier or later than the date on the letter. Also, the application deadline of the 15th is not set by ordinance but is the date the Planning Department sets for each month. Because the Planning Commission meets just once a month, the Planning Department often stretches past that time to accept applications if it is still possible to make notifications and have the public hearing notice published. FWBT was not given special treatment, because the same circumstance happens almost every month. The Assistant City Attorney responded to the complaints about denial of public records by stating that there had been several requests, all of which had been sent to the attorney who is representing the City in the pending lawsuit. That attorney had responded today, and copies will be available the next day, September 30, 2014. Mr. Lucy said that the burden of proof for a variance should be on the applicant. He felt the staff reports were written in a way that the finding of facts was done by the city for the applicant. He said the designation for the expansion had been changed from bank to office only for the parking requirements. Without that change the variance would be 40% instead of 16%. He stated that the bank has referred to this project as a bank expansion in all correspondence, and that use of the building is a bank. The City Planner stated that the Zoning Ordinance has been updated and that one of the changes has been to break out uses in a structure and determine parking requirements on those uses. Mr. Lucy said there were no topographical reasons for a variance since the bank had bought the lot and excavated it level. Mr. Lucy stated that variances on top of variances have been granted, 13 | P a g e PLANNING COMMISSION Regular Meeting September 29, 2014 Page 14 of 16 and the dollar amount for a project should not be considered for approval. His suggested solution was to remove the third floor of the structure. Mr. Lucy went on to talk about the lack of parking in the neighborhood. He said that right now the bank is policing their employees but what will happen a year from now? Also, he felt that using parking spaces allowed in the right of way and at the drive through as part of the calculations was wrong. He spoke about overflow parking at the Scandinavian Park and stated that no cross parking agreement is in place. That type of agreement is supposed to be within 300’ of the entrance to a property, and in this case it is 450’ to 500’. Jerome Lundeen spoke about his own situation, when he had requested a variance in parking. He had been denied use of parking spaces in right of way and parking stall size variance at an earlier meeting. However, right-of-way in that case was owned by DOT and they refused to allow encroachment on it for parking. Jon Backes, McGee Law Firm, representing First Western Bank spoke in support. He said there had been no partial certificate of occupancy delivered to the bank as far as he was aware. He was only aware of the certificate issued after the August 25th meeting. He stated there have been no parking issues for the neighborhood since occupancy of the expansion. An employee was assigned to check parking for customers and employees three times during a day, with 3 p.m. being the most congested because of shift change. He provided photo documentation of the parking observations. He claimed there was adequate parking at all of these times. The bank encouraged their employees to move into the new parking area and off the streets a month ago. Mr. Backes also explained that approximately nine of the bank employee parking spaces are currently being occupied by contractors working on the addition. Those spots will ultimately be used for additional employee parking. Mr. Backes indicated that First Western had tried to resolve the issues with the neighbors, but that the neighbors’ proposal was that First Western pay 2 ½ times the fair market value for their properties. Mr. Backes claimed First Western did not feel the neighbors were being reasonable. Mr. Backes and Commissioner Zablotney discussed use of the expansion. Mr. Backes said there are no teller lines or loan officers, that it is support uses such as bookkeeping, computers, break room, file rooms, human resource offices and other. Mr. Zablotney disagreed and said that all uses are bank related in this building. Mr. Backes stated that parking spaces for customers would not apply to the expansion. Ms. Hoffer and Mr. Lucy spoke again. Ms. Hoffer asked why Mr. Backes had been allowed to bring up matters in litigation when the neighborhood was not allowed to do so. Mr. Lucy stated that it is bad precedent to let anyone build whatever they want and just ask forgiveness for it afterward. He said that the neighborhood had not appealed earlier (2013 variances) because the bank had made promises which were not kept. Commissioner Zablotney had some comments and questions. He asked Richard Campbell from First Western Bank if the bank has 67 employees now as reported. Mr. Campbell said that was true. Zablotney said the initial request had stated this expansion would require 5 new employees, so would there be more employees or not? Mr. Campbell said that 10 employees that were already in the main bank have been moved into this expansion. Zablotney stated that 14 | P a g e PLANNING COMMISSION Regular Meeting September 29, 2014 Page 15 of 16 errors had been made and someone has to pay for those errors, and it should not be the neighborhood. The Assistant City Attorney stated that for the appeals process, a public hearing by the Planning Commission is required. The Commission makes a recommendation to affirm or reverse the previous decision to City Council. The City Council then holds an additional public hearing on the appeal and then makes the final determination. The matter does not end with the meeting tonight. Motion by Zablotney, second by Neether to reverse the two previously approved variances based on the finding that there is no hardship. Commissioner Zablotney stated that he did not feel there was any hardship for the bank. He felt the bank has received preferential treatment in this matter, and that describing bank space as office space was untrue. He also felt that reducing the width of parking spaces was poor planning because vehicles are bigger than they used to be and need more space. He had made his own calculations by deducting the spaces allowed in right of way, the drive through and for the size of vehicles, and came up with the number of spaces at 69. He stated the bank has overbuilt their property and that you don’t fix a wrong with another wrong. His solution would be to negotiate with the neighbors to buy more room, errors and omissions insurance by the architect or the third floor cannot be used. Commissioner Karpenko asked if denying the variance would bring about a solution. Commissioner Zimmerman stated that there is a difference in use in the building, and also the new North Hill branch will dilute use at the main bank to ease parking. Karpenko asked if signage on the streets could restrict parking for the bank and help the neighborhood. City Planner said that City Council can enact parking restrictions as to sides that cannot be parked on or hours of parking, but the neighbors would also have to abide by those restrictions. After discussion, a vote was called for on the motion by Zablotney, second by Neether to reverse the two previously approved variances and failed by the following roll call votes: Ayes: Neether, Conklin, Zablotney. Nays: Zimmerman, Karpenko, Berning, Holbach, Hanson, Koop, Wetzler, Mehrer, Wegenast Motion failed by a vote of 3 ayes to 9 nays. Motion by Hanson, second by Berning to affirm the Planning Commission’s August 25, 2014 decision to approve the two parking variances, based on the findings of fact made at the August 25, 2014 meeting and carried by the following roll call votes: Ayes: Zimmerman, Karpenko, Berning, Holbach, Hanson, Koop, Wetzler, Mehrer, Wegenast. Nays: Neether, Conklin, Zablotney Motion passed. Item # 13: River Front and Center – Other Business 15 | P a g e PLANNING COMMISSION Regular Meeting September 29, 2014 Page 16 of 16 City Planner stated that they are looking for suggestions at this point. This plan has future concepts and does not restrict property owners. There will be more discussion at the October 27th Planning Commission. See the link at minotnd.org/planning. Meeting adjourned at 8:15 p.m. 16 | P a g e