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HomeMy WebLinkAbout10/03/2018••• •••• Apple II Valley Meeting Location: Municipal Center 7100 147th Street West Apple Valley, Minnesota 55124 October 3, 2018 PLANNING COMMISSION TENTATIVE AGENDA 7:00 PM 1. Call to Order 2. Approve Agenda 3. Approve Consent Agenda Items Consent Agenda Items are considered routine and will be enacted with a single motion, without discussion, unless a commissioner or citizen requests to have any item separately considered. It will then be moved to the land use/action items for consideration. A. Approve Minutes of September 19, 2018, Regular Meeting 4. Public Hearings 5. Land Use / Action Items 6. Other Business A. Miller Farms of Lakeville, LLC Appeal to Apple Valley Board of Adjustment - PC 18-22-M Consider an Appeal to the Zoning Administrator's Determination that a Residential Use is not a Permitted Use within a Property Zoned "BP" (Business Park). Location: 5751 150th Street West Petitioner: Miller Farms of Lakeville, LLC B. Review of Upcoming Schedule and Other Updates Next Planning Commission Meeting - Wednesday, October 17, 2018 - 7:00 p.m. Next City Council Meeting - Thursday, October 11, 2018 - 7:00 p.m. 7. Adjourn Regular meetings are broadcast, live, on Charter Communications Cable Channel 180 and on the City's website at www.cityofapplevalley.org l App Valil ley ITEM: PLANNING COMMISSION MEETING DATE: SECTION: 3.A. October 3, 2018 Consent Agenda Description: Approve Minutes of September 19, 2018, Regular Meeting Staff Contact: Joan Murphy, Department Assistant Department / Division: Community Development Department ACTION REQUESTED: Approve minutes of regular meeting of September 19, 2018. SUMMARY: The minutes of the last regular Planning Commission meeting are attached for your review and approval. BACKGROUND: State statute requires the creation and preservation of meeting minutes which document the official actions and proceedings of public governing bodies. BUDGET IMPACT: N/A ATTACHMENTS: Minutes CITY OF APPLE VALLEY PLANNING COMMISSION MINUTES SEPTEMBER 19, 2018 1. CALL TO ORDER The City of Apple Valley Planning Commission meeting was called to order by Vice -Chair Burke at 7:00 p.m. Members Present: Ken Alwin, Tim Burke, Keith Diekmann, Jodi Kurtz, and David Schindler. Members Absent: Tom Melander and Paul Scanlan. Staff Present: City Attorney Sharon Hills, City Engineer Brandon Anderson, Community Development Director Bruce Nordquist, City Planner Tom Lovelace, Planner/Economic Development Specialist Alex Sharpe and Department Assistant Joan Murphy. 2. APPROVAL OF AGENDA Vice -Chair Burke asked if there were any changes to the agenda. MOTION: Commissioner Alwin moved, seconded by Commissioner Diekmann, approving the agenda. Ayes - 4 - Nays - 0. 3. CONSENT ITEMS MOTION: Commissioner Alwin moved, seconded by Commissioner Diekmann, approving the minutes of the meeting of September 5, 2018. Ayes - 4 - Nays - 0. MOTION: Commissioner Alwin moved, seconded by Commissioner Diekmann, recommending approval of amending Chapter 155 of the City Code related to impervious and building coverage on one- and two-family lots and within the shoreland overlay district. Ayes - 4 - Nays - 0. 4. PUBLIC HEARINGS A. Bogarts Entertainment Center — PC18-25-I Vice -Chair Burke opened the public hearing at 7:01 p.m. Commissioner Schindler arrived at 7:01 p.m. Planner/Economic Development Specialist Alex Sharpe stated Bogarts Entertainment Center is seeking an Interim Use Permit (IUP) to temporarily amend their Conditional Use Permit for sand volleyball courts. One of the conditions of the CUP is that the volleyball courts and the sand are only permitted to be on site April 1 - September 30 each year. Bogarts is seeking to store the sand on site for the winter months, and find alternative uses for the stockpiled sand during this time. CITY OF APPLE VALLEY Dakota County, Minnesota Planning Commission Minutes September 19, 2018 Page 2 of 15 Bogarts has re -branded and is no longer "Apple Place". A large sign currently exists on the building, and the owners are seeking to cover this with a temporary sign with the new "Bogarts Entertainment Center" logo. As temporary signs are only permitted for 30 days per year, the interim use permit will allow the applicant to keep a temporary sign for up to one year. If approved, the IUP will cover two separate requests on the site. The first is to temporarily amend a condition of the CUP issued in 2013 which dictated when the sand could be stored/used on the site. The second is for a temporary sign on the exterior wall, allowing the owner to retain a temporary sign longer than permitted by code. The primary concern of this sign will be appearance, which staff is working with the applicant to ensure the temporary sign looks as attractive and fitting with the character of the building as possible. High grade temporary sign materials are proposed, and the applicant has stated that they wish to cover the existing sign with the temp sign in a manner that will attractively advertise the space. Vice -Chair Burke inquired how a holiday ice rink would play into this site. Mr. Sharpe said Bogarts had covered the sand for a short term basis and could have ice sculptures or whatever might be allowed. Commissioner Alwin asked what measures would be in place for storm water protection so the sand would not wash into the storm drains. Mr. Sharpe answered that there is inlet protection that is done around all the construction sites in the City and the same would be done at this site. Sand bags are used. Commissioner Alwin asked if the City would be comfortable that this would allow drainage with the snow. Mr. Sharpe answered it would be evaluated by the City's Natural Resources Technician. Commissioner Kurtz inquired since it is an IUP and only for the one winter, are they were thinking of doing something different for the following year or would this continue. Mr. Sharpe answered that going forward it would be to amend the conditional use permit (CUP). Vice -Chair Burke closed the public hearing at 7:09 p.m. MOTION: Commissioner Burke moved, seconded by Commissioner Alwin recommending approval of an Interim Use Permit for Bogarts Entertainment Center to allow the storage of volleyball sand from October 1, 2018 to April 1, 2019, temporarily amending condition 6 of Resolution 2013-60. Ayes - 5 - Nays - 0. CITY OF APPLE VALLEY Dakota County, Minnesota Planning Commission Minutes September 19, 2018 Page 3 of 15 MOTION: Commissioner Burke moved, seconded by Commissioner Alwin recommending approval of an Interim Use Permit for Bogarts Entertainment Center to allow a temporary sign over the "Apple Place" permanent sign for one year from the date of approval. Ayes - 5 - Nays - 0. B. Front Setback Text Amendment for Porches and Covered Entries — PC18-26-0 Vice -Chair Burke opened the public hearing at 7:11 p.m. Planner/Economic Development Specialist Alex Sharpe shared that City staff is bringing forward a text amendment to City Code to allow front porches and covered front entryways to encroach up to eight feet on residential properties. Increasingly staff has been questioned by residents about the ability to add covered front entryways to their homes. Due to the regular requests, staff analyzed and found that six front setback variances have been issued for porches and covered entryways over the last 15 years. Most of these have occurred in the last five years. Current City Code allows "Patios, decks, uncovered porches, steps and stoops that extend into the required setback area a distance of eight feet or less." This provision has been of the code varied from in all six variance requests. Staff research surrounding City's codes and found that many of them allowed encroachments into the front setback for porches and covered entries. Due to this staff is recommending altering the code to allow an 8' encroachment for porches and covered entryways. The Comprehensive Plan has encouraged residents to improve their homes, and uses examples such as porches. Each of the approved variances has cited the Comprehensive Plan as a supporting goal for the City. It is a best practice to alter the zoning code when variances are regularly issued for a specific section. In this case, with the past variances issued, and the Comprehensive Plan encouraging residents, staff felt it was time to amend the code. The final text will be approved by the City Attorney prior to review by the City Council. There were no questions or comments. Vice -Chair Burke closed the public hearing at 7:16 p.m. MOTION: Commissioner Burke moved, seconded by Commissioner Diekmann recommending approval of amending the City Ordinance to allow open-air front porches and covered entry ways to encroach up to 8 feet into the front setback. Ayes - 5 - Nays - 0. 5. LAND USE/ACTION ITEMS A. Apple Valley Self -Storage — PC18-23-FB CITY OF APPLE VALLEY Dakota County, Minnesota Planning Commission Minutes September 19, 2018 Page 4 of 15 Planner/Economic Development Specialist Alex Sharpe stated on September 5, 2018 the Planning Commission reviewed a Site Plan and Building Permit Authorization for Apple Valley Self -Storage. Staff had minor comments which have been addressed by the applicant. The biggest alteration to the site plan is the removal of storage unit doors on the east side of the building, which is adjacent to the residential. This was done to meet the 60' required building setback from residential properties. Additional changes are detailed in the background. Apple Valley Storage, is seeking approval of a site plan and building permit authorization to develop a cold self -storage facility on the vacant parcel located at the northeast corner of Upper 147th Street and Evendale Way. The site is generally located north of Uponor, east of Lifeworks, and south east of Wasatch Storage. The site plan has been altered to include the new cul-de-sac, which did not impact the site design. A significant change from the prior plan is the removal of east facing doors, which would have faced the residential property. This was done due to a setback issue restricting the eastern building. The industrial zone requires a 60' setback from providentially zoned property, the prior site plan had approximately 52' feet. Removing the units on the east allows the applicant to remove a drive isle, and provides ample space for screening vegetation. The applicant has worked collaboratively with staff to improve the facade's connection to the residential properties, and mitigate any negative impacts the use may have had. This has been achieved by adding altering the door color from white to tan, making them less obtrusive. Steve Gebauer, AMI Engineers, provided additional information. Discussion followed. MOTION: Commissioner Alwin moved, seconded by Commissioner Diekmann recommending approval of a Site Plan and Building Permit Authorization for a 6 building, 52,100 sq. ft. cold self -storage facility subject to compliance with all City Codes and the following conditions: 1. The applicant shall follow all conditions included in the City Engineer's memo dated September 13, 2018 which is attached to this report. 2. A SAC determination from Metropolitan Council shall be obtained prior to issuance of a building permit and as part of the developer's agreement. 3. Trash area is required per MSBC 2015 1303.1500 Subpart 1 requires recycling space in accordance with Table 1-A on plans issued for permit. 4. Separate sign permits are required. 5. The City of Apple Valley has adopted the 2015 MSBC 1306, subpart 3 Special Fire Protection systems. This section would require the buildings to have an automatic sprinkler system installed based on occupancy type and square footage. 6. The 2015 MSFC 505.1 requires premises identification. A final address shall be assigned prior to the application for a building permit. CITY OF APPLE VALLEY Dakota County, Minnesota Planning Commission Minutes September 19, 2018 Page 5 of 15 7. The access aisle shall be marked with a sign "no parking" at the head end of the access aisle see MSAC 502.4.4. 8. Park Dedication in the amount of $6,992.13 shall be paid prior to the release of the final plat. 9. The Site Plan and Building Permit Authorization is subject to the approval of the Reliable Mini Warehouses of Apple Valley final plat. 10. Construction shall occur in conformance with the architectural plans dated 9- 13-18, subject to minor revisions. 11. Installation landscaping shall occur in conformance with the landscape plan dated 9-13-18, on file with the City, subject to minor revisions and subject to conformance with landscaping requirements. 12. A tree removal plan shall be submitted prior to issuance of the building permit. Trees required as part of the Lifeworks site development shall be required to be replaced in a 1:1 ratio. 13. The owner shall submit a detailed nursery bid list at the time of application for the building permit that confirms the value of the landscape plantings. 14. A Lighting plan shall be submitted at the time of the Building Permit subject to review and approval by the Planner. 15. Final fire hydrant location shall be determined by the Apple Valley Fire Marshall at the time of building permit. Ayes -5 -Nays -0. Vice -Chair Burke declared the Planning Commission would now recess at 7:24 p.m. 6. OTHER BUSINESS A. Miller Farms of Lakeville, LLC Appeal to Apple Valley Board of Adjustment — PC18-22-M At 7:24 p.m., Vice -Chair Burke reported the Commission would now convene as the Board of Appeals and Adjustments. He stated this is a hearing of an appeal by Miller Farms of Lakeville, LLC, for the property at 5751 — 150th Street W in Apple Valley, for the zoning administrator that the property of residential use is not a permitted use within a property zoned "BP" Business Park. He acknowledged the contents of the record to date to include: • Hearing Procedure and Process • Miller Farms of Lakeville, LLC, Board of Appeals & Adjustment Appeal Application, dated August 20, 2018 • Building Official's Plan Review Report, dated June 8, 2018 • Relevant Apple Valley City Code provisions (Ag and BP zoning regulations and Non- conforming Uses) • Location Map of Property • Staff's Response to Appeal with Exhibits and Sworn Declarations from Public Works Director Matt Saam, Chief Building Official George Dorn and Public Works Superintendent Carol Blommel Johnson CITY OF APPLE VALLEY Dakota County, Minnesota Planning Commission Minutes September 19, 2018 Page 6 of 15 Community Development Director Bruce Nordquist stated he had no additional information to add and that he and City Planner Tom Lovelace would be available if the Board had any questions. Vice -Chair Burke asked if the appellant had any additional information that was not sent to the Board ahead of time. Jacob Steen, Larkin Hoffman Attorneys, representing Appellant Miller Farms of Lakeville, stated the inquiry tonight is very narrow. He said they have a very discreet analysis in front of you and that is whether or not this single-family dwelling is a non -conforming use and whether or not those rights accrued on the date of the rezoning. As staff mentioned in 2014, our client purchased the property through Community Cares. For about 9 weeks prior to that purchase the well had been capped. The site was purchased with the joint understanding between the seller and the buyer that they would be re-establishing the well or City water for the single-family dwelling. He said they have continued to work from that time for more than 3 1/2 years to connect to the water and re-establish that water but to no avail. As staff mentioned, in the staff report, there is a magic date. This inquiry really looks at one date in particular. That is the date of the rezoning. Under Minnesota Law that is when non -conforming rights accrue. That was June 19, 2015. He said the question before you is was this single-family dwelling a lawful established use at that time. As you know the City's position is no. The staff report relies on the building code. The building code interpretation is if there is not water than there is a building code violation and the building is not habitable. Therefore, if there is not water, the single-family dwelling is not a lawful use. What this means is that on October 7, 2014, the moment at which that well was capped, that the use, the single-family dwelling seized to be a lawful single-family dwelling. Nine weeks later, the date on which the client purchased the property, despite their intention to re -open that well or establish water to re-establish that single-family dwelling, despite being in compliance with the zoning code, other provisions of the building code, of having water, working septic, gas, heat, it was not a lawful dwelling because there was a building code violation. Mr. Steen continued saying staff's conclusion is that 6 months later on that magic date, June 19, 2015, when that property was rezoned no non -conforming rights accrued. Not withstanding with Minnesota Law because of a building code violation. He added you know the zoning code and the building code are two completely separate regulatory frame works. Completely separate documents. You cannot lose non -conforming rights, which are a creation of a zoning code due to a violation of a building code. He said Minnesota has incredible protections for non -conforming rights. They are intended to protect lawful use from government overreach and taking without just compensation. Here, however, under the City's theory, and otherwise lawful use of land whether it is single-family dwelling, a commercial use, a mall, an industrial building, becomes unlawful the moment water is disconnected. A building code violation. That moment that it is disconnected from water overlaps with this magic moment upon which non -conforming rights accrue that magically the City has evaded the obligation to grant you non -conforming rights. That cannot be the intent. Certainly was not the intent of legislature. Certainly was not the intent of the City Council. Taking to this logical conclusion, under the City's theory, that we are relying on, the City could circumvent the United States and the Minnesota Constitution by depriving any landowner of non -conforming rights by insuring that they do not accrue on the date of a rezoning by simply CITY OF APPLE VALLEY Dakota County, Minnesota Planning Commission Minutes September 19, 2018 Page 7 of 15 shutting off water to your property. Now I think we all can agree that would hopefully never happen and that is an absurd conclusion. It is absurd to think that the City has that extraordinary power and it is absurd to think that a judge would agree. So for those reasons we strongly encourage you to reject staff analysis and make a recommendation of approval of the appeal. Vice -Chair Burke said in some of the material you mentioned that for 800 days it was on the market. He asked what are the 800 days it was on the market. Mr. Steen answered it was the 800 days preceding the purchase of the property and that goes to Minnesota Law the intent to not abandon a non -conforming use. That is a critical element that you do not have the intent. Under no circumstances was there ever any intent. When that well was capped, we were in negotiations to purchase the property. But it was easier for liability reasons and closing reasons to cap it and have an agreement between the seller and my client to re-establish as soon as humanly possible that water. Well for several reasons, which I will not get into now, we have been frustrated at every turn. We have gone so far as to acquire an outlot adjacent to the property from the City that has access to City water so we could extend that. But again we have been rejected and that is what we are appealing. Vice -Chair Burke said he was at the public hearing when this first came up for use and change to the building zone. Back in 2015 and specifically recall, it was in the minutes, that they agreed to the fact that it was going to be used for commercial purposes. So why did they say something like that if now they are saying no. Mr. Steen answered that there are a lot of different references to representation that it was going to be commercial. This is a large site. It is over 5 acres. There was an ECRV that was referenced, that was checked as commercial and there was a hearing that there was discussion of the use. He thought there was also reference to commercial assessments. But none of those are germane to the legal non -conforming use analysis. You cannot, under Minnesota Law, waive, by coming into a hearing, your rights to a non -conforming use and saying our intent is to use it as commercial. The truth is the primary use was intended and is intended to be commercial. There still is a non- conforming single-family residence on the site that we fully intend and have always intended to use. Not withstanding, you cannot, waive your non -conforming rights by checking a box on an ECRV. There is no provision in the law that would support that. Commission Alwin, referenced the written narrative, that Mr. Steen's client never abandoned or discontinued or showed intent to discontinue the non -conforming use and yet the basis of that position seems to be the Haefele case. He commented that happens to be an unpublished opinion of the Court of Appeals which by State Law has no precedential value. He asked Mr. Steen how he reconciles that. Mr. Steen answered that he is fully aware of that and that the Haefele case most clearly sites these standards. Commissioner Alwin added and yet it has no precedential value. CITY OF APPLE VALLEY Dakota County, Minnesota Planning Commission Minutes September 19, 2018 Page 8 of 15 Mr. Steen continued that he is sure you know that the courts will follow unpublished cases regularly and particularly in issues of non -conforming rights and takings. You see it all the time in our practice and while this in not controlling precedence in the court these principles are unlined in several cases that do not state it as clearly. Commissioner Alwin asked if those were also unpublished opinions in the court of appeals. Mr. Steen replied yes they may be unpublished. They may be district court Commissioner Alwin asked if this is the best one in front of us. Mr. Steen answered yes, that most distinctly sites it. Typically when we go in front of a body like this we save those legal arguments, the more nuanced legal arguments, for the court because we have the opportunity to build our record here and to simply state it but we still have an opportunity to brief the court. For the court we will engage in much more nuance discussion but for the purpose of demonstrating the actual framework under the law this is fully accurate Commissioner Alwin commented he can appreciate trying to keep it simple for us but we can handle nuance. He said he was not sure that building the record on a case that legally has no precedential value does much to support your position. He asked if there was anything else that would support that abandonment position. Mr. Steen said what he would state is that discusses after the abandonment what must occur to constitute abandonment, but the real issue is not the abandonment. The issue is were we established on this date under Minnesota Law and we were. Commissioner Alwin commented that he still sees heavy, heavy reliance on a case that legally has no precedential value. He said he is struggling to try find something to hang our hat on, on here because it seems to be the jest of it. Mr. Steen said he understands what Commissioner Alwin is saying and added that Commissioner Alwin is focusing on what occurred after the acquisition or accrual of the non -conforming rights but that is not what the staff report is saying. The staff report is saying that we did not even get non- conforming rights because of a building code violation. Commissioner Alwin asked if it was also Mr. Steen's position that the City somehow grants a non- conforming right. Mr. Steen answered that the City recognizes legal non -conforming rights. Commissioner Alwin said but the City does not grant those rights, those rights are there. Mr. Steen confirmed that they automatically accrue on a date of the subsequent change of official control under Minnesota Law. So they would automatically accrue and the City under the zoning CITY OF APPLE VALLEY Dakota County, Minnesota Planning Commission Minutes September 19, 2018 Page 9 of 15 authority has the obligation to recognize those rights. And under this interpretation they are choosing to not recognize those rights. Commissioner Alwin asked who capped the well. Mr. Steen replied that the well was capped by the trustee for the seller. There was a phase I that was conducted at the time. There were two wells on the site and both were capped by the trustee. Commissioner Alwin asked if the City did not take any affirmative action to cap those wells. Mr. Steen answered that he is not sure. It was his understanding that could be a County notification. Commissioner Diekmann asked if Mr. Steen's client purchased the property in the spring of 2015. Mr. Steen answered in December of 2014 through Community Cares, a non-profit. Commissioner Diekmann confirming that at that time those wells were capped. Mr. Steen answered at that time the second well had been capped for about nine weeks. Commissioner Diekmann asked when the application to the City was submitted to be reinstated to the water. Mr. Steen answered that they are attempting to identify the exact date that occurred within that gap and shortly after the thaw. What they will do is by the next City Council hearing they will have an affidavit from the well company but the request does not come to the City. Commissioner Diekmann inquired if they are trying to connect to City water or are they trying to drill another well. Mr. Steen replied they were attempting to drill another well at the time to re-establish another well and that request came to the County. The County then contacted the City and the City said no and we were rejected. So at that point we had to identify what the best subsequent alternative is which is either go through the City and get City water, go through an adjacent property to connect to City water or have the City allow us to re-establish a well. Commissioner Diekmann said so we established trying to figure out that date and was there any communication with the City about connecting to water before the May 2018 period. Mr. Steen answered yes. Commissioner Diekmann asked Mr. Steen if he knew what the dates are. Mr. Steen replied that he has quite a bit of material that was not in the record. CITY OF APPLE VALLEY Dakota County, Minnesota Planning Commission Minutes September 19, 2018 Page 10 of 15 Commissioner Diekmann said that was not helpful for him right now. Mr. Steen added they could supplement the record before it closes but they have been dealing with the City for over two years attempting to either get a well established or get public water to this house. The City has frustrated us at every effort and in an effort to make this easier we purchased the outlot adjacent to this site which had City water in it. The only other alternative, under the law if the City did not allow us to connect to City water, they have to give us a well. And that was where the real push and pull has been over the last three plus years. We are not going to get a well so we need to connect to City water and that is a fairly intensive process. Commissioner Diekmann said so if the property has not been used as the intended use as you state, what has it been used for. Mr. Steen answered that the property has been used, it is his understanding, as a single-family home at times throughout the period. It is certainly in violation of building code per staff report. But there is also a non-profit Community Cares facility on the site. Commissioner Diekmann asked if there is also a non-profit business operating out of this facility. Mr. Steen answered that is correct. Commissioner Diekmann commented so that would fall into our business district zoning. Mr. Steen said their use would presumably comply with the business district zoning and you can have multiple uses on a single property and you can have conforming uses in a business district even if they no longer permit it. Attorney Sharon Hills, on behalf of the City and the City Attorney's office because she had worked with City staff regarding the water connection, responded that contrary to Mr. Steen's description as "frustrated them" that in May of 2015, there was an application through the County to put a well in. At that time, Mr. Joe Miller and/or his attorney were advised that because City water is available, under City Code, they could not put a well in. They needed to connect. The option was not to come off County Road 42 but would have to come off Energy Way. Between the subject property and Energy Way was the EDA property. The options were to either lease land through the EDA's property to put their service line from Energy Way to the property or they could purchase the EDA property in its entirety. They would own it and they could just connect. There was no frustration there. There was a lapse in time for Mr. Miller to decide how he wanted to proceed and then decided he would purchase the EDA property and there were negotiations. There was a closing which she believed to be in 2016 or 2017. Joe Miller or Miller Farms actually signed off on the purchase. In between that time and late 2017, no permit was submitted to the City for a water/sewer permit. The City could not frustrate or act on any connection without a permit. The permit had to go to the State, the Met Council for approval for this so the City could act on the permit. That is the law and that is the process. By the time it was submitted by Miller to the State and back to the City the original permit has lapsed. The application had lapsed so they needed to refile or resubmit a new permit and that was in May 2018. The only person who frustrated the process was Mr. Miller CITY OF APPLE VALLEY Dakota County, Minnesota Planning Commission Minutes September 19, 2018 Page 11 of 15 or Miller Farms because of the lag in getting things through. From the beginning they were advised they had to connect to City water because it was available and they could not have a well. It was just a matter of how to get the service line to the property. Were they going to purchase the EDA property or were they going to purchase an easement. Mr. Nordquist added that it was Community Cares, a non-profit, had purchased the property for commercial use of general warehouse and that the prior use before they owned the property during the Melby years it had been residential. There were no prior agreements between the seller and the buyer to extend the use of the residence on the property. Vice -Chair Burke closed the hearing at 7:51 p.m. and said it is now open for discussion as an Appeals Board. He stated he was here when the wells were capped and it was zoned to "BP" Business Park in 2015. He believes the City made the right decision. Commissioner Alwin commented he concurs with Vice -Chair Burke and that somebody else consented to this being a commercial use. Vice -Chair Burke said the Appeal Board can continue the hearing but no later than November 7, 2018 but the Board can take a position at this time. Vice -Chair Burke read the following Memorandum: This Memorandum is submitted to be made as a part of the record and for consideration by the Planning Commission acting as the Board of Appeals & Adjustments at the appeal hearing scheduled for September 19, 2018. This Memorandum sets forth City staffs response to Miller Farms of Lakeville's appeal of the Community Development Department -Zoning Administrator's determination regarding the permissible uses on property located at 5751 150th Street West, owned by Miller Farms of Lakeville. Based upon the facts in the record and for the reasons outlined herein, single-family residential or any other use under the property's previous Agricultural zoning designation is not a "permitted nonconforming use" under its current Business Park zoning designation. Accordingly, the Zoning Administrator's determination should be affirmed and the appeal denied. Statement of Facts" 1. On December 18, 2014, Community Cares, Inc. purchased the property at 5751- 150th Street West in Apple Valley ("Property"). Mr. Joseph ("Joe") Miller is the owner and then President of Community Cares, Inc. See attached Exhibit A for true and correct copy of the recorded Contact for Deed purchase by Community Cares, Inc. 2. At the time of Community Cares' purchase, the Property was vacant. CITY OF APPLE VALLEY Dakota County, Minnesota Planning Commission Minutes September 19, 2018 Page 12 of 15 3. The Property was previously owned by the Melby family and historically referred as the "Melby property" by city staff. The property sat vacant, except for outdoor storage of RVs and trailers, and was on the market for sale for many years until Community Cares bought it. 3. At the time of Community Cares' purchase, the Property was zoned Agricultural. 4. On December 18, 2014, the Property did not have any potable/running water supply; neither the old farmhouse nor any buildings on the Property had operable potable water supply. On August 8, 2013, a well on the Property had been abandoned and sealed. On October 7, 2014, a second well was abandoned and seal. No new or operating well existed on the Property since October 7, 2014. Accordingly, under the Minnesota State Building/Plumbing Code, neither the farmhouse structure nor any other building on the Property was habitable for residential purposes on December 18, 2014, when Community Cares, Inc. (through its President, Joseph M. Miller), purchased the property. See attached Sworn Declaration of George Dorn for details and supporting documents. 5. In early Spring 2015, within months of Community Cares' purchase of the Property, City staff learned and observed Community Cares operating its food distribution/warehousing on the Property. Food distribution/warehousing operations are notpermitted uses within Agricultural zones. 6. In light of Community Cares' commercial operations on the Property, (in violation of the Ag zoning for the Property), and that the Comprehensive Guide Plan in effect at the time designated the Property as Industrial, the City initiated action to rezone the Property to Business Park. 7. On April 1, 2015, the Planning Commission directed a public hearing be set for the rezoning of the Property. See Exhibit B for true and correct copy of the April 1, 2015 Planning Commission Meeting Minutes. 8. On May 6, 2015, the public hearing was held for the rezoning of the Property. Joe Miller and his representative, Dale Runkel, were present at the public hearing. Dale Runkel spoke on behalf of Joe Miller and Community Cares; he stated that "the property was currently being used for the Community Cares food distribution" and that so long as the rezoning does not affect the continued operation by Community Cares, they had no issue with the rezoning. See Exhibits C & D for true and correct copy of the May 6, 2016 Planning Commission Meeting Agenda/Staff Report and Minutes. 8. On June 11, 2015, the City Council approved the rezoning of the Property from Agricultural to Business Park. The rezoning became effective upon publication on June 19, 2015. See Exhibits E 9. In July 2015, City staff was made aware of the Minnesota Department of Agriculture's ("DOA") investigation of Community Cares' food distribution/warehousing operation on the Property. The DOA investigation and enforcement of state statute violations by Community Cares and Mr. Joe Miller continued into late May 2016. Sec Exhibit F for true and correct copy CITY OF APPLE VALLEY Dakota County, Minnesota Planning Commission Minutes September 19, 2018 Page 13 of 15 of the Department of Agriculture investigation file and a Court Order, dated October 1, 2015. The investigative file includes photographs of inspections conducted on the Property evidencing Community Cares' food distribution/warehousing operation occurring on the Property. 10. On May 4, 2016, Community Cares assigned and transferred its Contract for Deed ownership interests to Miller Farms of Lakeville, LLC. On May 6, 2016, Miller Farms was conveyed a Deed of Sale by the Estate of Sandra Jean Melby, granting Miller Farms full fee ownership of the Property. See attached Exhibit G for true and correct copy of the recorded Deeds 11. In late 2015 into 2016, Miller inquired and worked with city staff to extend and connect to City municipal water and sanitary sewer services to the Property. The extension and connection to City water and sanitary sewer services to the Property required the City's trunk charges/fees for water, sanitary sewer, and storm sewer due and payable by the property owner. 12. In 2016, Public Works Director Matt Saam worked directly with Joseph Miller and his attorney(s) to determine the amount of the trunk charges/fees and to negotiate an Assessment Agreement for deferred payment of those trunk fees. Mr. Joseph Miller, as the authorized agent of the property owner, entered into a Special Assessments agreement with the City for payment of the water, sanitary sewer, and storm sewer trunk fees. The water and the storm sewer trunk fees that were imposed and assessed for the Property were calculated at the commercial property rate in effect under the City's 2016 Fee Schedule. Mr. Joseph Miller and Miller Farms of Lakeville, LLC, by signing and entering into the Special Assessment Authorization on November 15, 2016, explicitly agreed to pay the water and storm sewer trunk fees at the commercial property rate. See attached Sworn Declaration of Matthew S. Saam for details and supporting documents. 13. On May 23, 2018, Miller Farms of Lakeville, LLC, through its contractor, submitted a water and sewer permit application, along with required plans. This water and sewer permit is for the installation and connection of the water and sanitary sewer service lines from the City's water/sewer mains in the public right-of-way (Energy Way) up to the building to be served. See attached Sworn Declaration of George Dorn for details and supporting documents. 14. The Apple Valley Chief Building Official, George Dom, reviewed Miller's water and sewer permit application and proposed plans. The plans were also reviewed, as a matter of normal review process, by the City's zoning department. By letter, dated June 6, 2018, Mr. Dorn sent his Plan Review Report to Mr. Joseph Miller and his contractor; the Report noted deficiencies in the water/sewer permit plans. The Plan Review Report noted, among many other issues, the City Zoning Administrator's review determination that the Property is zoned Business Park and the plans depicted the new proposed water & sewer services lines to be connected to an "Existing Residential Building" which, as determined by the Zoning Administrator, is not a permitted use on the Property under its Business Park zoning designation. The permit application was not denied; instead, approval and issuance is contingent upon the property owner making all corrections and curing all deficiencies in the permit application and CITY OF APPLE VALLEY Dakota County, Minnesota Planning Commission Minutes September 19, 2018 Page 14 of 15 plans as noted in the June 6, 2018 Plan Review Report. See attached Sworn Declaration of George Dorn for details and supporting documents. 15. On August 20, 2018, Miller Farms filed its Board of Appeals and Adjustment application with the City challenging the Zoning Administrator's determination of permitted zoning uses on the Property as noted in the June 6, 2018 Plan Review Report. The hearing is set for September 19, 2018. and At the time of purchase Mr. Miller did declare the intent to use the property as commercial warehouse on his certificate of real estate value and with the months of purchase and prior zoning rate Community Cares took control for food distribution on the property following that time of purchase and the food distribution warehouse operation continued after that date and on City Code once the use was converted from residential to business that it converted to conforming zoning uses forever lost its permit use of non -conforming status. MOTION: Commissioner Burke moved, seconded by Commissioner Alwin, directing recommended findings and decision to deny the appeal and affirm the Zoning Administrator's Determination. Ayes - 5 - Nays - 0. MOTION: Commissioner Burke moved, seconded by Commissioner Alwin directing the City Attorney to prepare Findings and Facts. Ayes - 5 - Nays - 0. MOTION: Commissioner Burke moved, seconded by Commissioner Alwin to close the appeal at 8:02 p.m. and reconvene at the Planning Commission. Ayes - 5 - Nays - 0. B. Review of upcoming schedule and other updates. Community Development Director Bruce Nordquist stated that the next regular Planning Commission meeting would take place Wednesday, October 3, 2018, at 7:00 p.m. 7. ADJOURNMENT Hearing no further comments from the Planning Staff or Planning Commission, Vice -Chair Burke asked for a motion to adjourn. MOTION: Commissioner Diekmann moved, seconded by Commissioner Schindler to adjourn the meeting at 8:03 p.m. Ayes - 5 - Nays - 0. Respectfully Submitted, /s/ Joan Murphy Joan Murphy, Planning Department Assistant CITY OF APPLE VALLEY Dakota County, Minnesota Planning Commission Minutes September 19, 2018 Page 15 of 15 Approved by the Apple Valley Planning Commission on Tom Melander, Chair ... .... •••• ..• l App Valil ley ITEM: PLANNING COMMISSION MEETING DATE: SECTION: 6.A. October 3, 2018 Other Business Description: Miller Farms of Lakeville, LLC Appeal to Apple Valley Board of Adjustment - PC18-22-M Staff Contact: Thomas Lovelace, City Planner Department / Division: Community Development Department Applicant: Miller Farms of Lakeville, LLC Project Number: PC18-22-M Applicant Date: 8/22/2018 60 Days: 10/20/2018 120 Days: 12/19/2018 ACTION REQUESTED: Approve written Recommended Findings of Fact and Decision to affirm the Zoning Administrator's determination that a residential use or any other use associated with "A" (Agricultural) zoning district is not permitted on the property located at 5751 150th Street West and deny Appellant's appeal. SUMMARY: Miller Farms of Lakeville, LLC, through its Chief Manager Joseph M. Miller, filed an appeal to the Apple Valley Board of Appeals and Adjustment to appeal the determination of the Zoning Administrator that a residential use is not a permitted use on the property under its "BP" (Business Park) zoning designation. Miller Farms asserted that it has a right to use the property at 5751 150th Street West under the Agricultural zoning, which allows single family residential, as a "legal non -conforming use" despite the rezoning to Business Park in June 2015. The Planning Commission, acting as the Apple Valley Board of Appeals & Adjustments, held a hearing on September 19, 2018. The Board noted all documentation and information submitted as a part of the hearing record and took testimony from the appellant through its attorney and from City staff. The Board closed the hearing. After discussion, the Board voted unanimously to affirm the Zoning Administrator's determination and deny the appeal and stated its factual findings supporting its decision. The Board further directed staff to prepare its written Recommended Findings & Decision consistent with its stated findings and decision for deliberation and action at its October 3, 2018 Planning Commission meeting. BACKGROUND: N/A BUDGET IMPACT: N/A ATTACHMENTS: Exhibit APPLE VALLEY PLANNING COMMISSION CITY OF APPLE VALLEY, DAKOTA COUNTY, MINNESOTA In Re the Application to Apple Valley Board of Appeals and Adjustment: Applicant: Miller Farms of Lakeville, LLC Subject Property: 5751 150th Street West Apple Valley, MN 55124 RECOMMENDED FINDINGS OF FACT AND DECISION This matter came before the Apple Valley Planning Commission, acting as the Board of Appeals & Adjustments ("Board"), for hearing at its meeting of September 19, 2018, pursuant to an application for appeal filed by Miller Farms of Lakeville, LLC ("Appellant"), on August 20, 2018. Appellant's appeal requests review and consideration of a zoning use determination made by the City's Zoning Administrator in connection with the review of a water and sewer permit application to connect to city municipal water & sewer services. The Board received and considered: Appellant's Board of Appeals & Adjustment Appeal application and letter, dated August 20, 2018, authored by its legal counsel; Apple Valley Building Official's Plan Review Report, dated June 8, 2018; relevant Apple Valley City Code provisions (Ag and BP zoning regulations and Non -conforming Uses); Location Map of Property; Staffs Response to Appeal with Exhibits; Sworn Declarations of George Dorn, Carol Blommel Johnson, and Matthew Saam; testimony of Jacob Steen of Larkin Hoffman law firm, representing the Appellant and Joe Miller; testimony of city staff; and all other records, files and materials presented to and accepted by the Board and made part of the hearing record. Mr. Joe Miller was not present at the hearing and no other persons appeared or testified. Page 1 of 4 Based upon record presented at the appeal hearing, the Board makes the following FINDINGS OF FACT 1. On December 18, 2014, Community Cares, Inc. purchased the property at 5751 -150th Street West in Apple Valley ("Property"). Mr. Joseph ("Joe") Miller is the owner and then President of Community Cares, Inc. 2. At the time of Community Cares' purchase, the Property was vacant. 3. The Property was previously owned by the Melby family and historically referred as the "Melby property" by city staff. The property sat vacant, except for outdoor storage of RVs and trailers, and was on the market for sale for many years until Community Cares bought it. 3. At the time of Community Cares' purchase, the Property was zoned Agricultural. 4. On December 18, 2014, the Property did not have any potable/running water supply; neither the old farmhouse nor any buildings on the Property had operable potable water supply. On August 8, 2013, a well on the Property had been abandoned and sealed. On October 7, 2014, a second well was abandoned and seal. No new or operating well existed on the Property since October 7, 2014. Accordingly, under the Minnesota State Building/Plumbing Code, neither the farmhouse structure nor any other building on the Property was habitable for residential purposes on December 18, 2014, when Community Cares, Inc. (through its President, Joseph M. Miller), purchased the property. 5. In early Spring 2015, within months of Community Cares' purchase of the Property, City staff learned and observed Community Cares operating its food distribution/warehousing on the Property. Food distribution/warehousing operations are not permitted uses within Agricultural zones. 6. In light of Community Cares' commercial operations on the Property, (in violation of the Ag zoning for the Property), and that the Comprehensive Guide Plan in effect at the time designated the Property as Industrial, the City initiated action to rezone the Property to Business Park. 7. On April 1, 2015, the Planning Commission directed a public hearing be set for the rezoning of the Property. . 8. On May 6, 2015, the public hearing was held for the rezoning of the Property. Joe Miller and his representative, Dale Runkel, were present at the public hearing. Dale Runkel spoke on behalf of Joe Miller and Community Cares; he stated that "the property was currently being used for the Community Cares food distribution" and that so long as the rezoning does not affect the continued operation by Community Cares, they had no issue with the rezoning. Page 2 of 4 9. On June 11, 2015, the City Council approved the rezoning of the Property from Agricultural to Business Park. The rezoning became effective upon publication on June 19, 2015. 10. In July 2015, City staff was made aware of the Minnesota Department of Agriculture's ("DOA") investigation of Community Cares' food distribution/warehousing operation on the Property. The DOA investigation and enforcement of state statute violations by Community Cares and Mr. Joe Miller in connection with its operations on the Property continued into late May 2016. 11. On May 4, 2016, Community Cares assigned and transferred its Contract for Deed ownership interests to Miller Farms of Lakeville, LLC. On May 6, 2016, Miller Farms was conveyed a Deed of Sale by the Estate of Sandra Jean Melby, granting Miller Farms full fee ownership of the Property. 12. In late 2015 into 2016, Miller inquired and worked with city staff to extend and connect to City municipal water and sanitary sewer services to the Property. The extension and connection to City water and sanitary sewer services to the Property required the City's trunk charges/fees for water, sanitary sewer, and storm sewer due and payable by the property owner. 13. In 2016, Public Works Director Matt Saam worked directly with Joseph Miller and his attorney(s) to determine the amount of the trunk charges/fees and to negotiate an Assessment Agreement for deferred payment of those trunk fees. Mr. Joseph Miller, as the authorized agent of the property owner, entered into a Special Assessments agreement with the City for payment of the water, sanitary sewer, and storm sewer trunk fees. The water and the storm sewer trunk fees that were imposed and assessed for the Property were calculated at the commercial property rate in effect under the City's 2016 Fee Schedule. Mr. Joseph Miller and Miller Farms of Lakeville, LLC, by signing and entering into the Special Assessment Authorization on November 15, 2016, explicitly agreed to pay the water and storm sewer trunk fees at the commercial property rate. 14. On May 23, 2018, Miller Farms of Lakeville, LLC, through its contractor, submitted a water and sewer permit application, along with required plans. This water and sewer permit is for the installation and connection of the water and sanitary sewer service lines from the City's water/sewer mains in the public right-of-way (Energy Way) up to the building to be served. 15. The Apple Valley Chief Building Official, George Dorn, reviewed Miller's water and sewer permit application and proposed plans. The plans were also reviewed, as a matter of normal review process, by the City's zoning department. By letter, dated June 6, 2018, Mr. Dorn sent his Plan Review Report to Mr. Joseph Miller and his contractor; the Report noted deficiencies in the water/sewer permit plans. The Plan Review Report noted, among many other issues, the City Zoning Administrator's review determination that the Property is zoned Business Park and the plans depicted the new proposed water & sewer services lines to be connected to an "Existing Residential Building" which, as determined by the Zoning Administrator, is not a permitted use on the Property under its Business Park zoning designation. Page 3 of 4 The permit application was not denied; instead, approval and issuance is contingent upon the property owner making all corrections and curing all deficiencies in the permit application and plans as noted in the June 6, 2018 Plan Review Report. 16. On August 20, 2018, Miller Farms filed its Board of Appeals and Adjustment application with the City challenging the Zoning Administrator's determination of permitted zoning uses on the Property as noted in the June 6, 2018 Plan Review Report. 17. At the time of purchase of the property, Community Cares and Joe Miller declared the intended use of the property as commercial/warehouse, not residential or other agricultural uses, on its filed Certificate of Real Estate Value. 18. Community Cares and Joe Miller operated commercial food distribution/warehousing on the Property from the time of purchase to after the date of rezoning of the property to Business Park. No lawful use allowed under Ag zoning existed on the Property prior to or as of the date of rezoning. Further, the owner converted the use of the property from Ag zoning uses to commercial use and therefore, loss any nonconforming use rights per the City Code provisions. Based on the foregoing Findings of Fact, the Board makes the following: DECISION NOW, THEREFORE, based upon the foregoing Findings, it is the decision of the Planning Commission, acting as the Apple Valley Board of Appeals & Adjustments, that the zoning use determination made by the City's Zoning Administrator, namely that residential use or any other use associated with Agricultural zoning district is not permitted on the Property, is affirmed; and FURTHER, THEREFORE, based upon the foregoing Findings, it is the decision of the Planning Commission, acting as the Apple Valley Board of Appeals & Adjustments, that the Appellant's appeal challenging is hereby denied. Dated: APPLE VALLEY PLANNING COMMISSION By: Thomas Melander, Its Chair By: David Schindler, Its Secretary Page 4 of 4 ... .... ..... Apple ppl ell Valley ITEM: PLANNING COMMISSION MEETING DATE: SECTION: 6.B. October 3, 2018 Other Business Description: Review of Upcoming Schedule and Other Updates Staff Contact: Joan Murphy, Department Assistant Department / Division: Community Development Department ACTION REQUESTED: N/A SUMMARY: Next Planning Commission Meetings: Wednesday, October 17, 2018 - 7:00 p.m. • Public hearing applications due by 9:00 a.m. on Wednesday, September 19, 2018 • Site plan, variance applications due by 9:00 a.m. on Wednesday, October 3, 2018 Wednesday, November 7, 2018 - 7:00 p.m. • Public hearing applications due by 9:00 a.m. on Wednesday, October 10, 2018 • Site plan, variance applications due by 9:00 a.m. on Wednesday, October 24, 2018 Next City Council Meetings: Thursday, October 11, 2018 - 7:00 p.m. Thursday, October 25, 2018 - 7:00 p.m. BACKGROUND: N/A BUDGET IMPACT: N/A