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HomeMy WebLinkAboutPlanning Commission Minutes 07-23-2003Approved Minutes City of Plymouth Planning Commission Meeting July 23, 2003 MEMBERS PRESENT: Chair Peggy Larson, Commissioners Frank Weir, Nancy Franke - Wilson, Kendall Griffith and Melissa Musliner MEMBERS ABSENT: Commissioners Jason Rohloff and James Holmes STAFF PRESENT: Community Development Director Anne Hurlburt, Planning Manager Barbara Senness, Senior Planners Shawn Drill and Marie Darling, Planner Rebecca Bowers, Associate Planner Joshua Doty, City Engineer Ron Quanbeck and Office Support Representative Janice Bergstrom 1. CALL TO ORDER - 7:00 P.M. 2. PLEDGE OF ALLEGIANCE 3. PUBLIC FORUM 4. APPROVAL OF AGENDA Director Hurlburt referenced Item 7B and noted the request for a variance was removed. MOTION by Commissioner Weir, seconded by Commissioner Wilson, to approve the amended July 23, 2003 Planning Commission Agenda. Vote. 5 Ayes. MOTION approved. 5. APPROVAL OF MINUTES MOTION by Commissioner Weir, seconded by Commissioner Griffith, to approve the June 18, 2003 Planning Commission Minutes. Vote. 5 Ayes. MOTION approved. 6. CONSENT AGENDA A. CITY OF PLYMOUTH (2003067) MOTION by Commissioner Weir, seconded by Commissioner Griffith, to approve the site plan and variance for construction of a pump house at 4450 Nathan Lane North. (2003067). Vote. 5 Ayes. MOTION approved unanimously. Approved Planning Commission Minutes July 23, 2003 Page 2 B. CITY OF PLYMOUTH (2003068) MOTION by Commissioner Weir, seconded by Commissioner Griffith, to approve the site plan and variances to allow construction of a pump house at 4300 Lancaster Lane North. (2003068). Vote. 5 Ayes. MOTION approved unanimously. C. ELM CREEK GOLF (2003071) MOTION by Commissioner Weir, seconded by Commissioner Griffith, to approve the site plan amendment to allow enclosure of the existing covered patio that is attached to the clubhouse, for property located at 19010 State Highway 55. (2003071). Vote. 5 Ayes. MOTION approved unanimously. 7. PUBLIC HEARINGS A. SCHUETT REAL ESTATE GROUP, LLC. (2003046) Chair Larson introduced the request by Schuett Real Estate Group, LLC. for rezoning and a preliminary plat for `Bridgeport" for nine single-family detached lots, for property located at 4395 Juneau Lane North. Senior Planner Drill gave an overview of the July 15, 2003 staff report. Chair Larson introduced the applicant, Tom Schuett, Schuett Real Estate Group, LLC., who stated he has been working on this project for 1'/z years. Mr. Schuett said both single family homes and attached townhomes were considered for this location. Mr. Schuett said the buffers on the north and west edges of the property would be provided to maintain a shield to the neighborhood houses. Chair Larson opened the public hearing. Chair Larson introduced Dave Smith, 14899 45th Avenue North. Mr. Smith stated he has lived directly behind the property for 16 years. Mr. Smith expressed traffic safety concerns as there is an angle in the roadway at the 44th and 45th Avenue intersections. Mr. Smith expressed concern about excavations by heavy equipment that might disturb root systems resulting in tree loss in 2-3 years. He said that once large trees are removed, other exposed trees may be susceptible to wind damage. Mr. Smith stated he is against this development and recommends reviewing other proposals and tabling this proposal. Chair Larson introduced Mark Bilitz, 4365 Juneau Lane North, who expressed concern over the lot size of 11,000 square feet which implies the project would not fit in with neighborhood. He said there would be increased traffic on Juneau Lane affecting kids going to Turtle Lake Park. Mr. Bilitz noted the exit is close to the corner and he is concerned about bike and skateboard Approved Planning Commission Minutes July 23, 2003 Page 3 safety with two corners in close proximity. Mr. Bilitz referenced potential damage to the roads during the construction process which might hasten the decline of the road and asked if property owners would be required to pay increased costs to repair the road. Chair Larson introduced Sarah Bilitz, 4365 Juneau Lane North. Ms. Bilitz addressed the safety of children going in and out of Turtle Lake Park. She noted the buffering on the north and west sides and asked about the possibility of adding buffers for homes on the east side of the proposed project. Chair Larson introduced Doris Hart, 14913 45th Avenue North. Ms. Hart voiced concern about preserving the passageway of trees on the eastern entrance to Turtle Park off Juneau Lane. Ms. Hart asked if wording in the resolution addressing the potential need for custom home design could be changed to include "conservation easement", as this is not the same as tree preservation regulations. Chair Larson introduced Bruce Parker, 14625 44th Avenue North, who said he has concerns about pedestrian traffic around a park trail which is sandwiched between two streets. Mr. Parker asked that the Planning Commission or developer look at all possibilities with respect to traffic management and safety issues. Chair Larson introduced Paul Reimmereid, 14990 44th Avenue North, who said he concurred with earlier comments by neighborhood speakers. Mr. Reimmereid questioned the density and zoning change and asked why this property wasn't initially zoned RSF-3, which obviously will increase the density of housing. Chair Larson closed the public hearing. Chair Larson asked for clarification regarding density and zoning for the proposed project. Senior Planner Drill said the average lot area of the single-family lots lying within 750 feet of the site is 17,686 square feet. The average net lot area of the development site would be 18,162 square feet. Senior Planner Drill added that on average these lots would be slightly larger than area lots and the density of 2 units per acre is the minimum density allowed in the City. Director Hurlburt said that 15 years ago this area was developed as a Planned Unit Development. When the Zoning Ordinance was updated in 1996, an attempt was made to put this parcel into a zoning classification to fit with zoning directly to the south. Director Hurlburt added that the changes in the Zoning Ordinance and Comprehensive Plan benefit homeowners as there is now a more clearly defined process for changes. Chair Larson asked about the traffic and safety issue. Approved Planning Commission Minutes July 23, 2003 Page 4 City Engineer Quanbeck responded the street, which is 28 feet wide, is shifted as far away as far as possible to the southern edge of the proposed site. Also, Juneau Lane has the curve so it comes into 45th at a 90 degree angle rather than a skewed angle. The trail is roughly in between the two streets. City Engineer Quanbeck stated this is as safe a situation as possible, given the layout of the property. Chair Larson asked if construction vehicles would damage the street. City Engineer Quanbeck stated that this area is due for a street reconstruction project, however, it is not in the current 5 year projection. City Engineer Quanbeck added that this area is being reviewed as the street is in poor condition and it would not worsen from construction traffic. The assessment policy per lot will not cost homeowners more because of the condition of the street. Chair Larson asked if a tree buffer could be considered for screening on the east side of the proposed development. Senior Planner Drill responded that the back yards of this area currently have trees. Senior Planner Drill said that the City does not require screening from one single family development to another. Director Hurlburt added that the conservation easement on the north side is not for screening of adjoining properties, but rather for separation of the trail and the new homes. Chair Larson and Director Hurlburt concurred with Ms. Hart's suggestion to modify Condition #14 to require that homes be designed to fit within the developable area of the lots after the conservation easement and all applicable building setbacks, wetland buffer setbacks, and tree preservation regulations are applied, and said that language would be added to the resolution. Commissioner Wilson said if she lived in this area, she would concur with the residents. However, the fact is that if a homeowner wants to sell his property and the proposed development is within the legal guidelines, it is that homeowner's right to sell and therefore, she would support the project. Chair Larson concurred with Commissioner Wilson and added that the reality is that this is a privately owned piece of property. Chair Larson commented that the developer has done a very responsible job creating a decent development, filling in an existing neighborhood with respect for the wetland and added screening. Chair Larson concluded she will support the proposed project. MOTION by Commissioner Weir, seconded by Commissioner Griffith, to approve the request by Schuett Real Estate Group, LLC. for rezoning and preliminary plat for `Bridgeport" for nine single-family detached lots, for property located at 4395 Juneau Lane North. Roll Call Vote. 5 Ayes. MOTION approved unanimously. Approved Planning Commission Minutes July 23, 2003 Page 5 B. KEVIN LIEW "C AND K AUTOMOTIVE" (2003057) Chair Larson introduced the request by the Kevin Liew "C and K Automotive" for a conditional use permit and site plan amendment to allow a minor auto repair business in the C-3 (Highway Commercial) Zoning District for property located at 3510 Kilmer Lane North. (2003057) Senior Planner Darling gave an overview of the July 15, 2003 staff report. Chair Larson introduced the owner/applicant, Kevin Liew, 4825 Winnetka Avenue North. Mr. Liew introduced Ron Tupy, RJ Architects, and said Mr. Tupy would represent him. Mr. Tupy stated the owner operated at the gas station north of the proposed project for 7 years. Mr. Liew purchased the carwash building so the car repair business could be relocated to this site. Mr. Tupy said that while waiting for approvals for the site plan, Mr. Liew had accumulated losses totaling under $200,000 and as a result has had to lay off four people. Mr. Tupy said they are hoping for staff and Planning Commission support for the site plan so there are no further losses. Commissioner Wilson said she is confused about the comment regarding monetary losses and asked if the speaker is alleging the City is responsible for $200,000 in losses. Mr. Tupy clarified that it was not the City's fault, but rather the loss resulted from the process. Mr. Tupy pointed this out because other people are being impacted. Mr. Tupy said the owner understood the use was allowed but was not clear on the process required to proceed. Chair Larson asked if the applicant understands and is in agreement with the conditions and terms in the resolution. Mr. Liew responded affirmatively. Chair Larson opened the public hearing Chair Larson introduced Addie Ng, 11560 West Eagle Lake Drive, Maple Grove. Mr. Ng stated he has been a customer of C and K for years. Mr. Ng said this business has been operating for the last seven years next door and traffic impact will not be different as the owner would be using basically the same location, which would not pose a problem for the neighborhood. Mr. Ng said if C and K does not get the requested Conditional Use Permit the business would shut down and the building would be empty which is not a good sign for a neighborhood, and would present a negative impact on the City's tax base. Chair Larson introduced Jeff Eisenberg, 2955 Pilgrim Lane. Mr. Eisenberg said, as a resident in the area for the last 10 years, he has driven by the area every day and observed there was a self- service dilapidated car wash. C and K has renovated the building and also seems to do a nice business of fixing cars. The business fits within the context of Kilmer, and does not impact the Approved Planning Commission Minutes July 23, 2003 Page 6 neighborhood. Mr. Eisenberg concluded by stating that he feels the proposal is a good thing and anyone who takes an interest in their property is a positive thing. Chair Larson introduced Timothy Nolan, 10535 33rd Avenue N. who said he has been a customer of C and K automotive and they always have done very fine and fair work which you don't always find in the automotive business. Mr. Nolan commented that it is nice to be serviced by a local business. He concurred that this particular site was previously an eyesore and the adaptive reuse of the site is desirable, as is local job creation. Chair Larson introduced Gene Lang, 3605 Saratoga. Mr. Lang concurred with earlier speakers supporting C and K. He added that Kevin Liew's business scruples are above reproach and it is nice to have an auto repair business close by. Chair Larson introduced Karl Roiseland, 215 Lanewood Lane, who said he has been the service manager for 4'/z years for C and K. Mr. Roiseland said the business will not be changing, just making the property better by cleaning it up. He added the business does not advertise — business is mostly by word of mouth. Chair Larson introduced Arthur Lee, 10135 48h Place N. Mr. Lee said he is a customer of C and K and supports Kevin and his growing business. If this project is not approved it will hurt the City and the rest of the area. Chair Larson introduced Dale Olsen, 5585 Kalenda Drive NE, Albertville MN, who said he is one of the partners of the business. Mr. Olsen said the fact that the business is outgrowing the previous site shows they treat people right and are honest with people. C and K needs the site to keep the business growing. Chair Larson introduced Anthony Barsness, 11605 49th Avenue. Mr. Barsness said he was present to speak on another item, however, coincidentally C and K has been his mechanic. Mr. Barsness said this business is such a convenience, Karl and Dale are great, and it would be a shame if they could not expand their business. Mr. Olsen supplied 7 letters in support of this project and added that these letters, which will be in the record, attest to the honesty and integrity of the operation of the owners and people who work at C and K. Chair Larson introduced Shane Murphy, 620 Jewel Lane, who voiced support for C and K. Mr. Murphy said he has been a customer and Karl and Kevin have always treated him fairly and he would recommend C and K. Chair Larson closed the public hearing. Commissioners Griffith and Weir voiced pleasure at the supportive comments for this project. Approved Planning Commission Minutes July 23, 2003 Page 7 MOTION by Commissioner Weir, seconded by Commissioner Wilson, to approve the request by Kevin Liew "C and K Automotive" for a conditional use permit and site plan amendment to allow a minor auto repair business in the C-3 (Highway Commercial) Zoning District for property located at 3510 Kilmer Lane North. (2003057). Roll Call Vote. 5 Ayes. MOTION approved unanimously. C. UNTIEDT' S GARDEN MARKET (2003066) Chair Larson introduced the request by Untiedt's Garden Market for an interim use permit to operate a seasonal market located at 1455 County Road 101. Associate Planner Doty gave an overview of the July 14, 2003 staff report. Chair Larson introduced the applicant, Craig Gilb, 14904 12th Avenue North. Mr. Gilb said Untiedt's is requesting the interim use permit as they want some extra time to operate the seasonal market. Chair Larson opened the public hearing. There being no one present to speak on the item, Chair Larson closed the public hearing. Chair Larson commented the garden market stand looks very nice on the corner and would support the request. MOTION by Commissioner Weir, seconded by Commissioner Wilson, to approve the request by Untiedt's Garden Market for an interim use permit to operate a seasonal market located at 1455 County Road 101. Roll Call Vote. 5 Ayes. MOTION approved unanimously. 8. NEW BUSINESS A. DMITRIY MAZO (2003062) Chair Larson introduced the request by Dmitriy Mazo for an interim home occupation license to operate a photo -video studio from his home located at 11600 49th Avenue North. Planner Bowers gave an overview of the July 10, 2003 staff report. Planner Bowers played a demo video which was provided by the applicant. Chair Larson introduced the applicant, Dmitriy Mazo, 11600 49th Avenue North. Mr. Mazo said the purpose of this request is to add more family time for him. Mr. Mazo said he has 25 years experience as a cameraman and videographer. The main objective of the home business is a service provided to people, not merchandise. Fewer customers would be coming to his home compared with going to a store. These customers would be by appointment only and at a time Approved Planning Commission Minutes July 23, 2003 Page 8 when most neighbors will be at work and school. Mr. Mazo said he has respect for the neighborhood and street parking won't be necessary as there would be no more than 2 cars at a time on his driveway. Mr. Mazo stated he feels a safe environment can be maintained. Chair Larson asked Mr. Mazo if he is in agreement with the staff report and resolution. Mr. Mazo responded affirmatively. Chair Larson introduced Anthony Barsness, 11605 49th Avenue North. Mr. Barsness said he lives across the street from Dmitriy and does not feel traffic would be a problem in the cul-de-sac and supports the proposed business. Chair Larson introduced Stefan Sigurdson, 892 Winslow, West St. Paul. Mr. Sigurdson said he has known Mr. Mazo for 7 years and said he has done great work and is very artistic. He said that Mr. Mazo is in a detailed part of the video business and has purchased expensive equipment to do this type of work. Mr. Sigurdson supports Mr. Mazo's request for the home business and added that he does know another person in Minneapolis who has the same business operating out of his home and said the resulting traffic is minimal. Chair Larson introduced Marina Tankilevich, 11615 49th Avenue North. Ms. Tankilevich said she is glad to have his family in the neighborhood. She said Mr. Mazo is a high level professional and she has no concern about his business and he lives really close to her house. MOTION by Commissioner Weir, seconded by Commissioner Griffith, to approve the request by Dmitriy Mazo for an interim home occupation license to operate a photo -video studio from his home located at 11600 49th Avenue North. Roll Call Vote. 5 Ayes. MOTION approved unanimously. B. CVS PHARMACY (2003070) Chair Larson introduced the request by CVS Pharmacy for a review of a sketch plan for a drug store for property located at the southeast quadrant of Highway 55 and County Road 101. Planning Manager Senness gave an overview of the July 17, 2003 staff report. Chair Larson introduced Peter Coyle, who stated he is an attorney with Larkin Hoffman, and represents the applicant, CVS Pharmacy. Mr. Coyle stated this business, an east coast drug store which is ranked 1 or 2 in their trade, is new to this market and added that Walgreen's is their primary competitor. Mr. Coyle said this location is one of the first sites identified as suitable for their business. Mr. Coyle pointed out that the access staff is recommending for closure already exists. Mr. Coyle stated that police records confirm there have been no traffic problems in this location related to County Road 101 nor Highway 55. Mr. Coyle said he respectfully disagrees with staff's reasoning that if the name of the business changes or there is a different kind of Approved Planning Commission Minutes July 23, 2003 Page 9 business, this entitles the State, County and City to get this valuable property access right free of charge. Mr. Coyle stated that this site is unacceptable to virtually any retailer absent the access that currently exists. Mr. Coyle stressed that the real issue is whether the City has the right to close the access unilaterally based on a change in name and use of business. Mr. Coyle said there have been no changes to the Comprehensive Plan or zoning and this is a standard site plan review except for the fact that the applicant has put it in a more formal plan to the City. Mr. Coyle contends that the use will not materially change what has occurred there; historical use could be reinstated. Mr. Coyle noted that the code says if an applicant wants to pursue a specific use, it must be demonstrated that you have direct access to a City street, not indirect access by way of a frontage road. Mr. Coyle concluded that the code compels the business to have the access on State Highway 55 or Country Road 101. Mr. Coyle said that Walgreen's had looked at the proposed site and it is apparent that proposed limitations on access discouraged this project. Mr. Coyle said the market sees this access as a problem to market the site and to dress up redevelopment of this corner. Mr. Coyle said that staff has not identified a local authority to overcome specific ordinance provision requiring direct access to a City street. Mr. Coyle stated he feels the referenced policies apply to a new development; and what is being proposed is not really a new development on this site but a well established existing retail pattern. Mr. Coyle stressed that reliance on MnDOT's policies does not deal with the specifics of this site. Mr. Coyle said that on the one hand there is a broad policy long-term desire to manage access, but that MnDOT could condemn a property and then control it. Mr. Coyle said that this site was subject to condemnation in the last three months with the reconstruction of County Road 101 and stated that road construction caused the convenience store to shut down. Mr. Coyle maintained that the City preferred not to seek condemnation at that point because they prefer to get the access for free. Mr. Coyle said he does not understand the harm to the City, County or State by allowing a substitution of use with a project similar in use. Mr. Coyle urged the Commission to adopt a resolution supporting the use with the access that is currently available on the site. Commissioner Weir cited the Public Safety record indicating no safety problems, and asked how long it has been since there has been real access or how much use there is to Highway 55 from this location. Mr. Coyle said the access is there right now with a retail use (liquor store). Mr. Coyle added that 5 years seemed a reasonable amount of time to review for traffic problems. Approved Planning Commission Minutes July 23, 2003 Page 10 Commissioner Musliner commented that development and traffic in this area has escalated in the last couple years. Planning Manager Senness stressed that even though there is not a documented accident problem right now, the potential for traffic problems exists since traffic in this area has recently increased monumentally. Planning Manager Senness added there are not going to be any major improvements to Highway 55 in the near future. Chair Larson said a larger business, such as CVS, compared to the previous use would impact in and out traffic. Mr. Coyle responded that CVS would be a bigger building, but traffic analysis indicated similar traffic movement. Chair Larson asked for information on the cost of the access that the City wants to acquire for free. Mr. Coyle explained that the access control is typically a strip on a plat and the Constitution says if you want to acquire that property, you have to pay for it. Mr. Coyle said in this case, the City, State and County are trying to take advantage of a specific property. Mr. Coyle voiced that they do not think this is a viable use of that property. Chair Larson asked if Mr. Coyle is asserting that this would constitute a "taking". Mr. Coyle responded affirmatively. Commissioner Musliner asked about the creation of a frontage road and if it would be a City owned street. Planning Manager Senness stated the frontage road has been created up to the property line and it would meet the criteria of direct access as stated in the City regulations as it is a public street. Chair Larson introduced Todd Johnson, 301 Ardmore Drive, Golden Valley, who said as a commercial real estate agent, he had listed this property for two years for the Hughes Family. Mr. Johnson said the Walgreen's application did not proceed because of the access the City would provide. The Walgreen's project included an access on to County Road 101 but that staff had recommended against it for the CVS project. Mr. Johnson said he is confused by this access change. Mr. Johnson said a traffic study, required by the City and paid for by Walgreen's developer, represented the traffic impact to be roughly equivalent. Mr. Johnson referenced the Public Safety report indicating there were 4 accidents inside the parking lot. Mr. Johnson said this report confirms there is traffic activity, but no accidents at either access point. Mr. Johnson said that safety should be based on facts not conjecture. Mr. Approved Planning Commission Minutes July 23, 2003 Page 11 Johnson asked the Commission to not approve the findings and not forward the document to the City Council. Mr. Johnson added that Loretta Hughes is a life-long Plymouth resident, and she and her friends wanted Walgreen's, and now want CVS. Mr. Johnson said that three months ago there was a condemnation and access and roadways were reviewed. The City chose to rebuild and the access points remained as there was no reason to close them. Mr. Johnson discussed the staff s comparison of the CVS proposal to the development at Highway 55 and Northwest Boulevard. Mr. Johnson said that Northwest Boulevard has 20,000 cars per day versus 8,000 per day on County Road 101 and added that Campus Drive is a throughway. Mr. Johnson contended that Northwest Boulevard is a much better demographic location for the traffic situation and visibility, and this is an entirely different situation than what CVS is proposing. Mr. Johnson said even though the area is zoned C-2, the proposed access would limit the feasible use to a small office. Mr. Johnson said that in his opinion, this is a railroad situation as there have been 2 access points with similar uses since 1955. He asked the Commission to not forward staff recommendation to the City Council but rather allow CVS to come forward with a staff -reviewed, city -engineered plan. Chair Larson introduced Randy Hughes, 2062 Holy Name Drive, representing his mother who is the owner of the property. Mr. Hughes said three years ago a City Council meeting was held to discuss provisions for adequate access for the businesses. Mr. Hughes said the Hughes Family is now in a position to sell the property, but the property cannot be remodeled to work the way it is. Mr. Hughes would like to see staff and the Planning Commission work with CVS to help get their business in with safe access. Chair Larson introduced John D. Rice, 551 West 78th Street, Chanhassen. Mr. Rice stated as representative for the Hughes family, he is opposed to the proposed resolution and urged the Commission to do nothing to affect the access to and from these properties. Mr. Rice said that in the mid -1950's MnDOT condemned property for highway purposes taking away the right of access from a property owner. There were clearly defined exceptions, 60' in this case. The Hughes Family has the right of access, and that principle of right of access which applied to the horse and buggy then and fast cars now has never changed. That exception is constitutionally, judicially and legislatively protected and that clearly defined principal has never changed. Mr. Rice concluded that the Hughes Family has owned that right of access since the mid -1950's. Mr. Rice stated he respectfully disagrees with the legal advice stating that because the use is changed from a gas station to a drug store, the Hughes Family or any applicant has to get an approval to continue to use the access. Mr. Rice reiterated that changing the use does not take that right away. Mr. Rice continued that the County Road 101 condemnation proceedings were just completed and he was shocked that the only access is through the church property. Mr. Rice stated that would cool the ardor of any developer. The Hughes Family had a driveway for the lot for the Approved Planning Commission Minutes July 23, 2003 Page 12 house and for entry into the gas station. There was no taking of the right of access for County Road 101. The owners have the right of access for County Road 101 and that access cannot be taken away except by the owner giving it away or by a judicial proceeding of condemnation. Mr. Rice said even if the road to the church is a reasonably suitable and convenient access, which it is not, that doesn't mean the City can close the access. Mr. Rice said taking away the cross- over and putting in medians deprives the traffic from reasonably suitable and convenient access. Mr. Rice stated the owner, not the State, has control of the right of access. Mr. Rice asked to appeal to common sense, and said if customers have to drive 2 blocks down further to access a business and then drive 2 blocks back out, you are not going to sell to any retailer or developer that this is reasonably convenient and suitable access. Mr. Rice said this is a good project which would be complimentary to the City and neighborhood and has a legal right to access to County Road 101 and Highway 55. Mr. Rice asked the Planning Commission to not send this negative recommendation to the City Council which he stated he thinks is contrary to the law. Director Hurlburt asked how that reserved and specifically described access point will be affected by this proposed plan, which actually changes the location of the access to Highway 55. Mr. Rice responded that the suggested change in driveway location is a reasonable alternative to their rightful legal access to Highway 55. Mr. Rice said if this is a reasonable retail project, it should be examined to see if it is worthwhile and consistent to change the access. Director Hurlburt said Mr. Rice appears to disagree with Mr. Coyle as to whether or not the proposed project constitutes a change of use. She said a commercial building and a house will be replaced by a new commercial building and a lot with an undetermined use. Director Hurlburt said she has difficulty not calling this proposal a change in use and asked Mr. Rice what is the standard for a change in use. Mr. Rice responded that the discussion is about the access point and the change of use issue is irrelevant to the issue of the access. Mr. Rice explained that Minnesota law does not permit a re- exam or a forfeiture of a right of way because the use changed. He stressed that the access point does not have to be grandfathered in. Chair Larson introduced John Wenner, 18425 Highway 55. Mr. Wenner stated he opened the Tom Thumb in 1969, the self-service gas station in 1985, and was in business for 27 years. Mr. Wenner said he leased the land for 7 years and there was never an accident during that time. Mr. Wenner said in 2001 he met with 3 City Council members and Fred Moore, Director of Public Works, asking for assistance in keeping this corner open for business and asked for a turning lane from County Road 101 to come into that driveway. Mr. Wenner stated that Mr. Moore said they would need State permission. Mr. Wenner said when County Road 101 was built the turn lane was widened 3 times the size. Mr. Wenner stated he spent $30,000 last year taking the gas pumps Approved Planning Commission Minutes July 23, 2003 Page 13 out of the station. Mr. Wenner said he hopes this proposal goes through as he didn't have the money to pay for those expenses. Mr. Wenner said if CVS builds their property, he would suggest one-way signage for traffic coming in from the east, north and west. Mr. Wenner concluded that consideration should be given to leaving the exit open and entrance to County Road 101 as this would be a good corner for a pharmacy. Commissioner Wilson commented that the attorneys' statements made sense to her. As a person who owns a business and as a resident, Commissioner Wilson questioned why the Commission wouldn't support and encourage a business such as CVS. Director Hurlburt noted that the City Attorney is not present, but their advice is reflected in the staff report. Chair Larson said she has experience with driving in this area and has observed that Culver's and the gas station do not have an access off of Highway 55, thus having a similar situation as the proposed CVS. Chair Larson stated that this access seems to work fine. Chair Larson acknowledged it would be prudent to consider this proposal and would support moving this forward to the City Council so the developer could have a clear directive from the City before expending money and energy into a plan. Chair Larson supported the road use as presented in the resolution. Commissioner Griffith addressed the change in use issue. He said the retail and the residential property are zoned C-2 and said he does not view this proposal as changing land use. Director Hurlburt voiced disagreement and said the land use is the physical activity on the ground and added there are hundreds of different land uses with different characteristics that may occur in the same zoning district. She explained that there is a house on this property and if the house — regardless of zoning - is replaced with a business, a different use results even if the zoning remains the same. Commissioner Griffith said even with consolidating the residential property and the retail property, the use of the property that fronts Highway 55 does not change. Commissioner Weir said he is not convinced this would be a change of use since the service station is retail and the proposal is retail. Commissioner Griffith asked if MnDOT would be contacted for a review if there is no change of use. Director Hurlburt advised that MnDOT will formally review all plats that abut their right-of-way, and if a driveway is moved, a MnDOT permit would be required. Approved Planning Commission Minutes July 23, 2003 Page 14 Commissioner Griffith stated he does not agree with moving the driveway. Commissioner Weir asked if the driveway location is not moved, could it be closed without a right of condemnation. Director Hurlburt clarified that if the use of the property does not change, the driveway can stay the way it is and stressed that it is the redevelopment that is triggering the change. Commissioner Weir commented that the major part of the property is currently retail. Commissioner Wilson said that developing this site is a good thing and would like to see CVS be allowed to come forward with their plan. Commissioner Wilson said that she does not feel the Commission would want to rule on the legality of the complex access issue. She added that, while supportive of the attorneys' comments, she does not want to question staff - whom she feels does an awesome job. Director Hurlburt said that ultimately, the access issue may need to be settled in a court of law. Commissioner Musliner commented that staff is guided by policy in place and there may be a need to challenge policy which is guiding access. Commissioner Musliner added that she is from the east coast and is excited about CVS. Commissioner Musliner mentioned she lives south of the proposed project area, and has not had a problem driving into Culvers or McDonalds and said that she foresees other customers would do the same thing. Chair Larson said that because of the legal issues surrounding this proposal, the Commission is not equipped to make a detailed recommendation. She added that while not sure how to make it happen, the Commission would like to see redevelopment occur at this location. Chair Larson stated she feels the frontage road would provide suitable access. 9. ADJOURNMENT MOTION by Commissioner Weir, seconded by Commissioner Griffith, to adjourn the meeting. Vote. 5 Ayes. The meeting adjourned at 10:12 p.m.