HomeMy WebLinkAbout05-11-2006 Planning Commission Meeting Packetr
CITY OF OAK PARK HEIGHTS
PLANNING COMMISSION MEETING AGENDA
Thursday, May 11, 2006 -- 6:00 p.m.
I. Call to Order/ Approval of Agenda:
II. Recess to Work Session: Interviews for Planning Commission Vacancy
III. Reconvene Regular Meeting:
A. Commission Appointment Recommendations
IV. Approve Minutes of April 13, 2006: (1)
V. Department / Commission Liaison / Other Reports:
A. Commission Liaison:
B. St. Croix Crossing Update:
C. Other:
VI. Visitors/Public Comment:
This is an opportunity for the public to address the Commission with questions or concerns
regarding items not on the agenda. Please limit comments to three minutes.
VII. Public Hearings
A. Anchobaypro, Inc. (Tim Nolde): P.U.D.- General Plan & C.U.P.
for Oakgreen Village located North of 58 St. and West of Oakgreen
Ave. (2)
B. Oak Park Heights Marketplace (Positive Companies): C.U.P. for
drive - through window at new retail site to be constructed at Neal Ave.
just east of Pony Express Auto Wash and west of Stillwater Ford. (3)
VIII. New Business:
IX. Old Business:
A. Sign Ordinance: Flag & Banner Provisions - Continued Discussion (4)
X. Informational:
A. Next Meeting: June 8, 2006 — Regular Meeting @ 7:00 p.m.
B. Council Representative: May - Commissioner Liljegren
June — Commissioner Wasescha
XI. Adjournment.
Memo
To: Planning Commission
From: Julie A. Hultman, Planning & Code Enforcement Offic it
q 1
Date: May 5, 2006 �`w
Re:
City of Oak Park Heights
Commission Applicant Interviews -- May 11, 2005 — 6:00 p.m.
We have received four applications for the two vacancies created with the departures of Commissioner
Dwyer and Caspers. I have coordinated interviews to commence at 6 p.m. and run in 15 min.
increments. Note that the Planning Commission meeting will actually begin at 6 p.m. Chair
Runk will open the meeting and immediately recess to the interview work session so that you may
conduct the interviews and make a recommendation at the same meeting after you reconvene from the
work session. Letters confirming interview times and enclosing a May meeting packet have been mailed
to each applicant.
Attached to this memo, you will find the applications for Melissa Charley, Charles LeRoux, Jim Kremer
and Mark Powell. Mr. Powell's application is a copy his former application from a previous term on the
Commission. His current original was mailed but has not yet found its way to City Hall. I've taken the
liberty of updating the fact that he has been a member of the Planning Commission on the application
enclosed.
If anyone is unable to attend this meeting and /or the interview session, please call me at (651.351.1661)
or e -mail me Ghultman @cityofoakparkheights.com as soon as absolutely possible.
Thanks!
Interview Schedule:
6:00 p.m. Melissa Charley
6:15 p.m. Charles P. LeRoux
6:30 p.m. Jim Kremer
6:45 p.m. Mark Powell
CITY OF OAK PARK HEIGHTS
PLANNING COMMISSION MEETING MINUTES
Thursday, April 13, 2006
Adjourn to Annual Meeting /Call Annual Meeting to Order: Chair Runk adjourned the
regular meeting and called the annual meeting to order.
ENCLOSURE "1
Call to Order / Approval of Agenda:
Chair Runk called the meeting to order at 7:00 p.m. Present: Commissioners Caspers and
Liljegren; City Planner Richards, City Administrator Johnson and Commission Liaison Doerr.
Absent: Commissioners Dwyer and Wasescha.
Commissioner Liljegren, seconded by Commissioner Caspers, moved to approve the Agenda, as
presented. Carried 3 -0.
Chair Runk noted that Commissioner Dwyer was ineligible for reappointment and that he also
indicated that he was not seeking reappointment. Chair Runk noted that Commissioner Caspers
has submitted a letter stating that she was not seeking reappointment. He noted that he was
seeking reappointment by the City Council for a full term.
Commissioner Liljegren, seconded by Commissioner Caspers, moved to recommend the City
Council reappoint Mike Runk to a full 3-year Planning Commission term, which would
culminate in May of 2009. Carried 2 -0 -1, Commissioner Runk abstained.
Chair Runk noted that the Chair and Vice Chair were elected in 2005 and since the terms were
for two years, thus pending his reappointment there was no action needed at this time.
Commissioner Caspers, seconded by Commissioner Liljegren, moved to close the annual
meeting and reconvene the regular meeting. Carried 3 -0.
Approve Minutes of March 9, 2006:
Commissioner Liljegren, seconded by Commissioner Caspers, moved to approve the Minutes as
presented. Carried 3 -0.
Department /Commission Liaison Reports /Other Reports:
A. Commission Liaison:
B. St. Croix Crossing Update: Commission Liaison Doerr reported that the final EIS is
being work on and that there is a tentative date for a June meeting.
C. Other:
Visitors /Public Comment: None.
Public Hearings:
Planning Commission Minutes
April 13, 2006
Page 2 of 5
A. Continued - Jacob Holdings of 60 St. LLC: Conditional Use Permit Amendment and
Variance — 14738 60 St. N.
City Planner Richards reviewed his planning report of the applicants request for amended
conditional use permit relative their auto sales operation. Richards noted legal letter related to
timelines.
Chair Runk opened the hearing for public comment and invited the applicant to speak.
Bill Rambo, Hecker Automotive Project Manager addressed the Commission and addressed the
conditions of the planning report and the potential security requirements based on clean up activity
and the future development application for a new auto dealership at the site.
There being no other visitors to the public hearing, Commissioner Lilj egren, seconded by Chair
Runk, moved to close the public hearing. Carried 3 -0.
Brief discussion ensued as to the conditions. Commissioner Lilj egren, seconded by Commissioner
Caspers, moved to recommend City Council approval, subject to the amended timeline conditions:
1. The applicant shall submit a development application by December 31, 2008 to the City
for a new dealership building and site improvements that include the properties at 14702
60 St. N. and 14738 60 St. N. The applicant shall be required to post a security with
the development application for the total cost of the development improvements to be
held until a certificate of occupancy is issued by the City for the project completion; or
2. The applicant shall complete the conditions of the conditional use permit granted for the
subject property on December 9, 2003 no later than December 31, 2008.
3. If neither of the above stated conditions is complied with, the applicant shall remove all
of the vehicles from the property at 14738 60 St. N. and cease all auto dealership
operations as the site no later than December 31, 2008.
Carried 3 -0.
B. Xcel Energy -- A.S. King Plant: Revisions to MPCA Permit and Amended Conditional Use
Permit for changes to Final Cell Development at the A.S. King Fly Ash Disposal Facility.
City Planner Richards reviewed his planning report relative proposed changes to the fill operation,
adding that the MPCA had already approved the request for minor modifications to their original
1996 approval. Richards noted that the proposed changes make the fill process less intrusive to the
neighbors east of the site and that the post closure access road would be moved to connect the
existing cul -de -sac at 58 St., N, by Cover Park Manor.
Chair Runk opened the hearing for public comment.
Planning Commission Minutes
April 13, 2006
Page 3 of 5
Ken Neumann — East Oaks Homeowner Association Board Member & Resident stated that his
property is west of the fly ash site and questioned how the proposed changes would affect his
neighborhood.
Darrell Knutson. Project Manager — Xcel Energy stated that a site study was completed to effectuate
the changes being proposed and that they are designed to ease the impact upon the neighboring
community while allowing maximum capacity for the site through its estimated life which is
estimated to be roughly late 2006. He discussed what was currently permitted, how operations will
be altered by their proposal and commented that Xcel Energy will do what they can to accommodate
the requests of the City.
Brian Jones — 15331 58 St. N. stated that he felt that the proposed changes look better than the
original plan and commented that he doesn't understand the condition regarding the trees since
those left behind in the area where homes were removed for the bridge project are mainly dead.
Discussion ensued as to access location, security gate placement, roadway cover materials, arborist
review of trees, their placement and general care. Mr. Jones stated that he would like to receive an
update as to what is happening at the site. City Administrator Johnson invited him to stop by City
Hall and stated that he would be happy to go over what he knows.
Commissioner Liljegren, seconded by Commissioner Caspers moved to close the public hearing.
Carried 3 -0.
Discussion ensued as to an alternate road path if 5 8 St. is not utilized and potential impacts of the
roadways. General consensus was that the proposed is an improvement.
Marjorie Neumann — East Oaks Resident inquired as to the long -term environmental impact of the
fill placement at the site. City Planner Richards outlined the fill process, water filtration and its
secondary treatment at the wastewater treatment facility. Darrell Knutson discussed evaporation
and other elements of the facility's structure, its process and site monitoring. It was noted that the
monitoring of the site is an ongoing process and does not end with the fill operation process.
Commissioner Caspers, seconded by Commissioner Lilj egren, moved to recommend City Council
approval of the request for amended Conditional Use Permit, subject to the following conditions:
1. All ash hauling to the site shall continue to be from the Beach Rd. access. No access for
fill operations shall be from the 58 St. access. Access to 58 St. shall not be permitted
until such time as the access at Beach Rd. is discontinued. Emergency vehicle access
shall be provide in the long -term from 58 St.
Planning Commission Minutes
April 13, 2006
Page 4 of 5
2. Xcel Energy shall replant and maintain trees, according to a plan approved by the City
Arborist, to satisfy the City's tree replacement requirements.
3. The City Council shall consider a payment in lieu of taxes for the landfill site. The fee
amount and terms shall be determined by the City Council.
4. The plans shall be subject to review and approval of the City Engineer.
5. The location of the gate and fencing for the post - closure access road shall be subject to
City approval.
Carried 3 -0.
New Business: None.
Old Business:
A. Sign Ordinance: Consider scheduling workshop and inviting business owners to join
Commission in discussion.
Chair Runk commenced discussion and questioned whether or not there were any sections of the
sign ordinance that may be handled better administratively and also what will be put in place to
enforce the ordinance. City Administrator Johnson stated that staff has attempted to be more
aggressive in enforcement and will continue to do so as best manageable, noting that
overwhelming workload does not always make it possible. On the administrative functioning of
the ordinance, he noted that the largest issue and majority of the violations have been temporary
signage/banners. He stated that it might be easier to enforce this type of signage
administratively and suggest that stepping away from time limits and moving toward
consistency and possibly attaching a fee to temporary signage may be the way to address the
situation. The thought is that an established administrative process would be easier understood
and would likely achieve broader adherence.
Chair Runk stated that he would be comfortable with such a process as described by City
Administrator Johnson and asked that staff prepare something outlining such a process for the
Commission to review.
General discussion of temporary signage types (window paint, balloons, banners /bannerettes and
temporary signage placement on vehicles) was discussed. City Planner Richards discussed the
mega - billboard issue and noted that the City Council would be considering a moratorium of
them at their upcoming meeting.
Informational:
A. Next Meeting: May 11, 2006 7:00 p.m. — Regular Meeting
B. Council Representative: April — Commissioner Caspers
May — Commissioner Liljegren
Respectfully submitted,
Julie A. Hultman
Planning & Code Enforcement Officer
Approved by the Planning Commission:
Planning Commission Minutes
April 13, 2006
Page 5 of 5
Chair Runk reminded the audience that applications were being accepted until the end of the day,
May 1, 2006 for the Planning Commission vacancies and that the applications could be found at
City Hall.
Adjournment: Commissioner Caspers, seconded by Commissioner Lilj egren, moved to adjourn
at 8:02 p.m. Carried 3 -0.
BACKGROUND
Attached for reference:
ENr.l oSURE .Z
NORTHWEST ASSOCIATED CONSULTANTS, INC.
4800 Olson Memorial Highway, Suite 202, Golden Valley, MN 55422
Telephone: 753.231.2555 Facsimile: 763.231.2561 planners@nacplanning.com
PLANNING REPORT
TO: Eric Johnson
FROM: Scott Richards
DATE: May 4, 2006
RE: Oak Park Heights — Oakgreen Village: PUD General Plan
Preliminary/Final Plat, Conditional Use Permit
FILE NO: 798.02 -- 06.03
Tim Nolde, representing Anchobaypro Inc. and Valley Senior Services Alliance (VSSA)
has made application for a PUD general plan approval for that area west of Oakgreen
Avenue and north of 58 Street. The area under application at this time consists of
approximately 11 acres and encompasses a significant portion of what was the Central
Business District. The City Council approved a PUD general plan and preliminary/final
plat on March 9, 2004 for this area. A revised concept plan was reviewed by the
Planning Commission at the April 14, 2005 meeting. This plan was not acceptable to
the Planning Commission and was sent to the City Council with a recommendation of
denial. In June of 2005, the Planning Commission approved another revised PUD
concept plan. The applicant withdrew the PUD concept plan before the City Council
review.
The Planning Commission recommended the concept plan for this revised project at
their March 9, 2006 meeting. The City Council approved the concept plan at their April
11, 2006 meeting.
The general plan application is only for Phase 1 of the total development plan. Phase 1
includes a total of 67 townhome units. The second phase would include an additional
46 townhome units and is proposed within the next five years. The street network will
be private with access off of Nova Scotia Avenue North.
Exhibit A: Oakgreen Village Concept Submittal Booklet
Exhibit B: Memo from City Engineer
Exhibit C: Memo from City Arborist
ISSUES AND ANALYSIS
Adjacent Uses. Uses adjacent to the subject site are listed below:
North of Site:
South of Site:
West of Site:
Present Zoning — B -4, Limited Business District
Present Use -- Highway 36 orientated commercial development,
Undeveloped areas and Xcel Energy power line easement.
Present Zoning -- 0, Open Space
Present Use -- The Boutwells Landing Development and
Undeveloped areas.
Present Zoning — B-4, Limited Business District and B-2 General
Business
Present Use -- Undeveloped area, Wal -Mart and property approved
for Lowe's /CSM commercial development.
East of Site: Present Zoning — B -4, Limited Business District
Present Use — Single family residences and Oakgreen Avenue
Proposed Project. The project narrative for the site describes the project as follows:
"The concept of this development is to create an attractive and affordable
community for the City of Oak Park Heights. The newly revised layout
incorporates better circulation and creates additional open areas for the
development."
The general plan for the first phase of development in this area, approved in 2004, was
for 87 townhome. units. The concept plan for the area included 203 overall units, 111
which were townhomes and 92 apartment units in two separate buildings. The concept
plan encompassed the area south of the Xcel power line easement to 58 Street and
from Nova Scotia Avenue to Oakgreen Avenue.
The concept for the revised plan in 2005 included 79 townhome units in the first phase.
The second phase was on the easterly edge of the property near Oakgreen Avenue and
was to include 41 additional townhome units where Tax, Increment Financing (TIF)
would have been applied to assist in acquiring the remaining existing homes.
The current concept plan includes 67 townhome units in the first phase. The second
phase is the eastern edge of the property near Oakgreen Ave. That phase would
include 46 additional townhome units.
The applicant has proposed three different styles of building units in the development.
The applicant plans to begin the first phase this year. The first phase of buildings (Units
1 - 67) would be started this year with the timing of the construction of the remaining
units and private streets depending upon unit sales.
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A preliminary plat has been submitted that includes the necessary right -of -way for
Oakgreen Avenue North and Nova Scotia Court North. The applicant has provided this
short cul -de -sac off of Nova Scotia to accommodate the potential development of the
commercial area north of the Xcel Energy power line easements.
Comprehensive Plan. A Comprehensive Plan amendment was approved in July
2005, removing the Central Business District (CBD) designation and replacing it with a
commercial land use designation. The proposed project complies with the
Comprehensive Plan.
Zoning. This property has been designated as B-4, Limited Business which
accommodates residential development as a conditional use. As such, the underlying
base zoning district will be B--4, Limited Business with a Planned Unit Development
(PUD) overlay. The B -4, Limited Business District lists two family, townhomes and
multiple family dwellings as a conditional use.
Subdivision. The applicant has submitted a preliminary /final plat for review. Outlot A
encompasses the area to the north of the Xcel power line easement that could be
developed as a commercial business site. Outlot B is an area north of Nova Scotia
Court North that will need to be tied to the residential development to assure that the
homeowners association will maintain the property in the long term. Outlot C
encompasses all of the common areas and private roads of the residential development
and Outlot D is the ponding area adjacent to 58 Street. This area is a drainage and
utility easement that will be dedicated to the City as it is part of the regional drainage
system. The plat identifies public drainage and utility easements that will need to be
vacated through a public hearing and action by the City Council. The plat will dedicate
an additional 50 feet for Oakgreen Avenue. The right -of -way for Nova Scotia Court
North is also being dedicated as a cul -de -sac. The City Engineer will need to comment
on the right -of -way. The City Engineer and City Attorney shall review the plat for any
changes and additional easements that may be required.
Park Dedication. Park dedication is based upon the specifications of Section 402.08
of the Subdivision Ordinance. The residential area to be platted would be subject to
cash park dedication. The Park and Trail Plan does not identify any park land within
this immediate area, thus the City will require cash. The applicant has provided an
appraisal in compliance with the provisions of the Subdivision Ordinance. The park
dedication amount will be calculated, included in the developers agreement, and paid in
full prior to recording the final plat for the property.
B-4, Limited Business Standards. Section 401.301.E.9 of the Zoning Ordinance
provides the CUP standards for allowing residential use in the B -4 District. The
standards are as follows:
Two family, townhomes and multiple family dwellings, provided that:
• a. At least two parking spaces per unit must be provided for on site, or proof is shown
of arrangements for private parking nearby.
Each unit is provided with a two stall garage, spaces in front of the garage door,
and guest parking spaces in the development.
b. No physical improvements, either interior or exterior, may preclude future re -use
for commercial purposes.
The units are constructed for residential use. It is highly unlikely that the project
would be redeveloped for commercial use in the future.
c. Unit floor areas must comply with Section 401.15.C.6.
The unit floor areas will comply.
d. Compliance with conditional use requirements of Section 401.03.A.8.
The Planning Commission and City Council should review the conditional use
permit requirements and determine if there are any reasons to not approve the
conditional use permit.
e. The development does not conflict with existing or potential future commercial
uses and activities.
The area has been planned for residential development since the approval of the
latest Comprehensive Plan in 1998.
f. The density, setbacks, and building height standards imposed as part of the R -3
Zoning District are complied with.
The R -3 District standards with a PUD will be complied with.
g. Adequate open space and recreational space is provided on site for the benefit of
the occupants.
The density of the development has been decreased in order to provide more open
space. A small private park will be developed as part of the second phase.
h. The development does not conflict or result in incompatible land use arrangements
as related to abutting residential uses or commercial uses.
The residential development has been planned for this area.
i. Residential use be governed by all applicable standards of the Zoning Ordinance,
Building Code, Housing Code and Fire Codes.
All applicable codes will be applied.
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j. Residential and non - residential uses shall not be contained on the same floor.
There is no commercial development planned within this project.
k. Residential uses shall be provided with a separate entrance, and separately
identified parking stalls.
The development has been phased with timelines that comply with this request.
I. The architectural appearance, design and building materials of residential
structures shall be consistent with the Design Guidelines and subject to approval of
the City Council.
The design and building materials shall be reviewed as part of a separate section
of this report.
The Planning Commission and City Council will need to review these issues as part of
the general plan review.
Project Density. Section 401.15.C.3 of the Zoning Ordinance establishes the density
thresholds for residential properties. Townhome projects require 4,000 square feet of
land area per unit excluding right -of -way and wetlands.
The phase one development consists of a total area of 315,700 square feet which
excludes the wetland and right -of -way area. The 67 units planned for that area would
result in an area per unit of 4,712 square feet. The calculations for the second phase
would result in an area per unit of 5,485 square feet.
Proposed Street/Access. The City Council, in granting concept plan approval,
supported a private street network for the development. The roadways will be 28 feet
wide, back to back. Nova Scotia Avenue North has been provided a 100 foot right -of-
way and will be constructed this Summer with a 34 foot wide street. Nova Scotia Court
North is being platted and will be given to the City as public right -of -way. It is a cul -de-
sac to provide access to the commercial area north of the Xcel power line easements.
The roadway would not be constructed until such time as development occurs in that
area. The City may choose at some time to vacate the right -of -way if no access is
required or if only a private driveway is needed for this area.
The Planning Commission has previously discussed the need to provide adequate
separation between the residential uses in the east portion of the B-4 and the
commercial areas to the west. The City Engineer has indicated that 100 feet of right -of-
way will give adequate area for significant boulevard tree plantings along Nova Scotia
Avenue. Additionally, the applicant proposes to preserve the existing tree grove on the
north side of the existing wetland and pond and provide berming and a screen of trees
ilk between Nova Scotia and the townhome units. The Planning Commission may want to
comment further on landscape and grading plans for this area.
The plans also include a 50 foot right -of -way dedication for Oakgreen Avenue as
required by the City Engineer. This development, with the added traffic, will increase
the need to improve Oakgreen Avenue with shoulders and turn lanes. Utilities will be
p laced within the Oakgreen Avenue right -of -way to serve this development. The City
improvements should consider timing for the Oakgreen Avenue mprovements with
construction of this development.
Private Driveways /Parking. All of the driveways leading into the garages have at
least a 20 foot separation from the curb line to the building. There are 29 visitor parking
stalls throughout the development. The 28 foot street would allow for parking on one
g p
side. The developer homeowners association would need to sign and enforce that
parking.
Trails /Sidewalks. The plan includes a system of private trails that would intersect with
the City's trail system. A continuation of the 10 foot trail along the Xcel power line
easement is planned to extend to Nova Scotia Avenue. A five foot sidewalk is also
planned on the p rivate right-of-way on the north side of 58 Street. The plans
property g
show an eight foot trail on the east side of Nova Scotia Avenue. The sidewalk will
continue from 58th Street to 60 Street. The internal system of private sidewalks will
provide access throughout the development and around the wetland natural area. The
Park Commission has commented on the proposed private and public trail system and
their recommendations have been incorporated into the proposed plans.
Setbacks. Within a PUD, the base district setback requirements (B-4) are applied only
to the perimeter of the project. The B -4 specifies setback requirements as follows: 40
feet front yard, 20 feet rear yard and 10 feet side yard. If the lot is on a corner, not less
than 20 feet from a lot line is required for side yards. The PUD section of the Zoning
Ordinance specifies that buildings should be located at least 20 feet from the back of a
curb line from roadways as part of the internal street pattern. Additionally, the
ordinance species that no building within the project shall be nearer to another building
by one -half the sum of the building heights of the two buildings.
The buildin g setbacks have been adjusted since the concept plan review. All of the
buildings are now at least 20 feet from the right -of -way of Nova Scotia Avenue North.
The building separation is also at least 20 feet in compliance with the Zoning Ordinance.
All of the building setbacks comply with the PUD requirements.
Traffic. The applicant has provided vehicle count information for the two access points
to Nova Scotia Avenue. The counts were based upon an average daily traffic
generation of 10 trips per day per household. The City Engineer shall review the
information and comment on the overall traffic impact.
Tree Preservation /Landscaping. The applicant has provided information on existing
tree coverage and what will be preserved and removed as part of the overall landscape
plan. The plans indicate significant landscaping in the Nova Scotia Avenue boulevard.
The grading plan shows some berming along this corridor in order to provide additional
separation to the residential units.
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The landscape plan provides a varied and interesting plan for the development. The
applicant will be required to remove the dead trees within the existing wetland/
stormwater ponding area identified on the plat as outlot D. The City Arborist will review
the tree preservation plans and landscape plan for any suggestions and changes. The
plans shall be subject to the final approval of the City Arborist.
Park. The applicants have provided a small private park in Phase 2 that would be
owned and maintained by the homeowners association. The applicant will not be
provided any credits from park dedication fees for providing the park area. The plans
for the park would be reviewed as part of Phase 2.
Grading and Drainage. Detailed grading and drainage plans have been provided as
part of the final plan of development submittals. The plan indicates a different shape for
the pond that is created within the Xcel power line easement. The plans also indicate
the fill stockpile that has been approved by the City Council under a separate
conditional use permit.
The City Engineer shall review and approve all of the grading and drainage plans.
Additionally, any easements required for drainage shall be granted by the City subject to
approval of the City Engineer.
Utilities. A detailed utility plan has been submitted. The final utility plan is subject to
• review and approval of the City Engineer and Public Works Director. All of the utilities
within the development shall be private but built to City specifications.
Xcel Energy. Previously, the applicant had provided a letter from Xcel indicating that
the plans had been reviewed and approved for the proposed parking, streets, and trails
that were occurring in the power line easement. The applicant has been asked to
submit the plans to Xcel for any further comment or conditions.
Well and Septic Abandonment. As part of the redevelopment, the applicant shall
abandon all wells and septic systems that will be affected in conformance with
Minnesota Rules.
Lighting. A lighting plan has been provided that includes a street light fixture and
locations within the private street network. The Tight fixture is identical to what has been
used in McKean Square. It is a full cut -off fixture with a flat lens. The street lights will
be maintained and all electricity costs will be paid for by the developer /homeowners
association.
No light fixtures are shown on the proposed buildings. If lights are proposed, they shall
be illustrated on the building plans subject to approval of City staff.
Signage. The only signage proposed for the development includes two monument
signs on each of the two entrances from Nova Scotia Avenue. The site plan does not
indicate the exact locations of the signs. Additionally, the applicant should provide to
scale diagrams of the signs to assure conformance with City sign requirements. The
final design and placement of the monument signs shall be subject to review and
approval of City staff.
Architectural Appearance. The application materials include preliminary drawings of
the two proposed townhome styles and four -plex units. The structures are basic
townhome row units with small porches, varying roof lines with brick and lap siding. The
four -plex housing units lack architectural detail as they portray extensive horizontality
and minor change in material. The applicant has provided a brick base to the four
elevations of the units since the concept plan submittals. The plans indicate vinyl lap
siding for some of the townhome units. The City will require steel or a Hardiboard type
lap siding.
The residential units are not required to be reviewed under Design Guideline
requirements, but as part of the PUD, the City can comment and require design and
material changes. The Planning Commission and City Council should comment further
on the building appearance and materials as part of the approvals.
Homeowners Association. A homeowners association will be established to maintain
the development until the applicant has completed and sold the units within the project.
The City will require the applicant to provide all of the association duties and
maintenance until after the completion of Phase 2. The City will also require the
establishment of one homeowners association and not multiple associations for the
development. The applicant shall provide all required homeowners association
documents to the City Attorney for his review and approval.
The applicant will also be required to disclose the entire development plans to include
Phase 2 for all Phase 1 buyers. Disclosure is also required notifying all buyers within
the development that the roadway and utilities are private and will not be accepted as
public in the future by the City.
Development Contract. The applicant will be required to enter into a development
contract with the City should approval of the general plan of development be granted.
As part of the contract, the provisions for street and utility construction, as well as
payment for area changes, would be included. The contract will specify conditions of
approval and issues related to phasing the development.
RECOMMENDATION 1 CONCLUSION
If the Planning Commission is favorable to the general plan, the preliminary /final plan
and the conditional use permit to allow residential townhome units in the B -4, Limited
Business District, it could be recommended to the City Council with the following
conditions:
1. The preliminary /final plat is subject to review and approval by the City Engineer
and City Attorney.
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2. The Park Commission recommends a cash park dedication for Oakgreen Village.
Park dedication must be paid at the time of recording of the final plat. The
specific terms of the dedication will be addressed in the development agreement.
3. All easements, as required by the City Engineer and City Attorney, shall be
dedicated to the City as part of the subdivision approvals.
4. The applicant shall dedicate the right -of -way area for Nova Scotia Court North
and Oakgreen Avenue as part of the final plat.
5. The Planning Commission /City Council should comment on the berming and
screening provided for Nova Scotia Avenue North as part of the grading and
landscape plans.
6. Sidewalks /trails and timing for construction are subject to review and approval by
the Parks Commission, City Council, and City Engineer.
7. The applicant's traffic study for the Oakgreen Village development shall be
subject to review and approval of the City Engineer.
8. The tree preservation and landscape plans are subject to review and approval of
the City Arborist. The applicant shall remove the dead trees within the
stormwater /wetland ponding area identified as Outlot D.
9. The plans for the private park shall be provided and reviewed as part of the
Phase 2 concept and general plan of development review process.
10. Grading, drainage, erosion control, and utility plans are subject to review and
approval by the City Engineer. Stormwater issues are also subject to review and
approval by the applicable watershed authority.
11. The applicant must comply with Xcel Energy's requirements for construction of a
pond within the Xcel Energy easement. The applicant shall resubmit the
development plans to Xcel Energy to assure compliance with all utility
requirements. Written approval from Xcel Energy shall be provided to the City.
12. Prior to the issuance of any grading permit, all existing wells and septic systems
must be identified and abandoned in conformance with Minnesota Rules.
13. The site plan does not include light fixtures on buildings. If lights are proposed
on the buildings, they must be illustrated on the building plans, details submitted,
and the photometric plan must be revised to include them subject to City staff
review and approval.
14. Two monument signs shall be allowed for the development, subject to final
review and approval of locations, and compliance with the City's Sign Ordinance.
9
15. The Planning Commission and City Council should comment on the final design
and materials for the townhome structures.
16. The proposed vinyl lap siding must be changed to steel or Hardiboard siding
subject to final review and approval of City staff.
17. The Fire Marshal and Police Chief should review the plans and determine the
accessibility of emergency vehicles throughout the development.
18. The applicant shall supply the homeowners association documents as required
by the City Attorney for review and approval.
19. The applicant shall provide all association duties and maintenance until the
completion of Phase 2. The homeowners association shall be organized with a
funded reserve provided by the developer. The details of the reserve amount
shall be outlined in the development agreement. Only one homeowners
association for both Phase 1 and Phase 2 will be allowed.
20. The applicant shall be required to disclose the entire development plans to
include Phase 2 for all Phase 1 buyers. Disclosure is also required for
modification of all buyers within the development that the roadway and wetlands
are to be private and will not be accepted as public in the future by the City.
21. The applicant shall dedicate the wetland area north of 58 Street (Outlot D) to
the City.
22. The applicant is required to enter into a development agreement with the City in
a form acceptable to the City, and subject to review and approval of the City
Attorney.
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Julie Hultman
Page 1 of 1
From:
Sent:
To:
kdwidin@comcast.net
Thursday, May 04, 2006 1:01 PM
Tom Ozzello; Julie Hultman; Dennis Pastier; Eric A. Johnson; Jim Butler; Scott Richards; Mark
Vierling
Subject: Oakgreen Village - Landscape Plan & Tree Replacement
OPH Staff -
I have reviewed the landscape plan and tree removal lists for the Oakgreen Village development dated
4/26/06. I have also re- calculated the tree replacement requirement. My comments are as follows:
Landscape Plan:
1. The overall design looks good. It is attractive and complements the proposed buildings and site
improvements. The plan provides adequate screening of units from Nova Scotia Ave. and the
commercial area to the west.
2. The tree species are diverse and hardy with few major insect or disease problems. The diversity has
been improved from the previous plan. There is a nice variety of shrubs and perennials which will
enhance the attractiveness of the landscape.
Tree Protection:
Tree protection fencing should be up around treed areas to be preserved prior to construction activities.
Please refer to the document "Tree Protection Standards, City of Oak Park Heights ".
Tree Replacement:
After correcting the tree list for trees such as boxelder, cottonwood under 12 inches and dead trees, I
have calculated a total removal of 2,434 caliper inches out of 4,218 caliper inches of significant trees.
The calculated tree replacement is 1,866. caliper inches. Per the OPH Tree Protection Ordinance
(#1307) projects which remove greater than 1500 caliper inches may have the caliper replacement
inches modified by woodland type factors for each type of tree being removed. After adjusting for
woodland type factors, the tree replacement requirement is determined to be 1,234 caliper inches. The
landscape plan calls for 864 caliper inches. The final tree replacement requirement is therefore 370
caliper inches (1,234 - 864). If there is not adequate space to plant trees on the subject property, cash in
lieu of tree replacement may be paid to the city's Tree Replacement Fund at the rate of $50. per caliper
inch or $18,500.
If you have any questions regarding this report, please contact me.
Kathy Widin
Arborist
City of Oak Park Heights
5/4/2006
C
MEMORANDUM
TO: Oak Park Heights Planning Commission
FROM: Laurie Shives / Scott Richards
DATE: May 4, 2006
RE: Oak Park Heights — Oak Park Heights Marketplace; Site Plan
Review/CUP
FILE: 798.02 -- 06.05
BACKGROUND
ENCLOSURE 3
tiAlk.1106 A.4.% ttik".11:0 . 14 . 9 . 1440klAttit.L.,
4899 Olson Memorial H:�ghway, S uite 202, , Golden Valley, 'MN 5 422
Telephone: 783.231 Facsimile: 763:231.260 : planners @nacpianriing,com
Positive Companies, Inc. is proposing to construct a new 12,000 square foot retail office
building located off of Neal Avenue North, south of Highway 36. The subject site is
currently zoned B -2, General Business District. The request is for a Site Plan Review
and a Conditional Use Permit to allow for a drive -in and convenience food
establishments. The proposed building will accommodate eight tenants with the
allowance for one drive- through window if the tenant so requests.
Attached for reference:
Exhibit 1 — Existing Conditions
Exhibit 2 -- Site Plan
Exhibit 3 -- Floor Plan
Exhibit 4 -- Building Elevations
Exhibit 5 Lighting Plan
Exhibit 6 -- Signage Plan
Exhibit 7 -- Landscape Plan
ANALYSIS
Comprehensive Plan. The Comprehensive Plan guides the subject site for
commercial land use and, as such, the proposed retail development is in compliance
with the Comprehensive Plan.
Zoning. The subject site is currently zoned B--2, General Business District. The
applicant is proposing to have general retail service businesses occupy the proposed
building with one unit operating a drive -thru facility. Drive -thrus are a permitted use
upon approval of a conditional use permit within the B -2 District.
CUP Criteria. The purpose of a conditional use permit is to provide the City with a
reasonable degree of discretion when determining the suitability of certain uses upon
the general welfare of the public. In making this determination, City staff and officials
should consider the nature of the adjoining land or buildings, whether or not a similar
use is already in existence and located nearby, traffic generation and all other factors as
the City may deem appropriate in determining the effect of the proposed conditional use
y pp
on the public's health and safety. Section 401.30.E of the Zoning Ordinance
conditionally permits drive -in (drive thru) establishments within the B -2 District provided
that:
1. The architectural appearance and functional plan of the building and site shall not
be so dissimilar to the existing buildings or area as to cause impairment in
property values or constitute a blighting influence within a reasonable distance of
the lot.
Comment: The proposed retail building will be consistent with the design
standards of the 13-2 District and will be compatible with the surrounding
buildings.
2. At the boundaries of a residential district, a strip of not Tess than ten feet shall be
landscaped and screened in compliance with Section 401.15.E.8 of this
Ordinance.
Comment: The subject site is not located adjacent to a residential district.
3. Each light standard island and all islands in the parking lot landscaped or
covered.
Comment: The submitted landscape plan indicates that the proposed parking lot
islands will be adequately landscaped.
4. Parking areas shall be screened from view of abutting residential districts in
compliance with Section 401.15.E.8 of this Ordinance.
Comment: The subject site is not located near a residential district.
2
•
5. Parking areas and driveways shall be curbed with continuous curbs not less than
six inches high above the parking lot of driveway grade.
Comment: The parking area and driveways are proposed to be curbed and
paved with bituminous surfacing.
6. Vehicular access points shall be limited, shall create a minimum of conflict with
through traffic movements, shall comply with Section 401.15.F of this Ordinance
and shall be subject to the approval of the City Engineer.
Comment: Access to the site will be off Neal Avenue North and is not anticipated
to have a negative effect upon existing traffic patterns in this area. Neal Avenue
North is a State -aid roadway, thus, the applicant shall obtain a driveway access
permit from the Minnesota Department of Transportation (MnDOT) for the
additional access to accommodate the drive -thru. All access and driveway
design issues shall be subject to the review and approval of the City Engineer.
7. All lighting shall be hooded and so directed that the Tight sources shall not be
visible from the public right -of -way or from neighboring residences and shall be in
compliance with Section 401.15.B.7 of the Oak Park Heights Zoning Ordinance.
Comment: The applicant is proposing to install "shoe box" style exterior lights
which will offer full cutoff as required by the Zoning Ordinance. The pole
mounting height shall not exceed 25 feet. The applicant must submit additional
lighting plans detailing the proposed exterior building lighting, subject to City
staff's review and approval. The applicant has submitted a photometric plan
indicating that the proposed light source locations and emissions will be
consistent with Section 401.15.B.7 of the Zoning Ordinance.
8. The entire area shall have a drainage system which is subject to the approval of
the City Engineer.
Comment: The applicant has submitted grading and drainage plans which are
subject to the City Engineer's approval.
9. The entire area other than occupied by buildings or structures or plantings shall
be surfaced with a material which will control dust and drainage and which is
subject to the approval of the City Engineer.
Comment: The parking area and drive aisles will be surfaced with bituminous
pavement and the parking islands and site perimeter are proposed to be
landscaped, thus, the site will be surfaced with materials suited to control dust.
Drainage issues shall be subject to the review and approval of the City Engineer.
10. All signing and informational or visual communication devices shalt be in
compliance with Section 401.15.0 of this Ordinance.
3
Sign
B -2 District Standards
Proposed
Maximum sign area
of 8% of wall area,
not to exceed 60
sq. feet or 4% of
wall area, . not to
exceed 200 square
feet
Wall Signs
100 sq. feet in total sign
area or 15% of building
fagade up to 300 sq. feet
total
Freestanding /Pylon
Sign
One freestanding sign not
to exceed 100 sq. feet and
20 feet in height
Multi - tenant pylon
sign
Comment: The followin g table outlines the required provisions for signage within
the 8 -2 District and that which is being proposed by the applicant.
The applicant has not provided a detailed signage plan, as there are no known
tenants for the proposed building at this time. The applicant has submitted a
general signage plan and proposed signage guidelines which appear to be
consistent with the Zoning Ordinance requirements. Prior to the erection of any
signage on the subject site, a sign permit must be obtained, subject to City staff
approval.
11. The provisions of Section 401.03.A.8 of this Ordinance are considered and
satisfactorily met.
Comment: The applicant has submitted the necessary information for the
processing of the proposed CUP. However, pursuant to Section 401.03.A.8 of
the Zoning Ordinance, the applicant shall provide additional information as
deemed necessary by any City staff or officials.
Lot and Setback Provisions. As shown in the table below, the proposed building
meets the required lot area and setback standards for the B -2 District.
Building Design. The submitted plans indicate that the building will be a one story
building with a total of 11,900 square feet. The primary facade material is proposed to
be splitface block with accents of EF1S, single scored smooth block and brick veneer.
The applicant has also submitted colored building elevations indicating that the primary
brick color will be red /brown with brown and neutral accent colors. Each suite will have
a glass door entrance surrounded by large, full - length windows. The proposed building
will have architectural interest in the form of varied rooflines for different sections of
building's front facade. The proposed retail building is consistent with the requirements
of the B -2 District and the City's Design Standards.
4
•
•
Lots
Setbacks
Area
Width
Front
Side
Rear
Required
15,000 sq. ft.
100 feet
40 feet
10 feet
20 feet
. Proposed
61,422 sq. ft.
232 feet
40 feet
10 feet
20 feet
Comment: The followin g table outlines the required provisions for signage within
the 8 -2 District and that which is being proposed by the applicant.
The applicant has not provided a detailed signage plan, as there are no known
tenants for the proposed building at this time. The applicant has submitted a
general signage plan and proposed signage guidelines which appear to be
consistent with the Zoning Ordinance requirements. Prior to the erection of any
signage on the subject site, a sign permit must be obtained, subject to City staff
approval.
11. The provisions of Section 401.03.A.8 of this Ordinance are considered and
satisfactorily met.
Comment: The applicant has submitted the necessary information for the
processing of the proposed CUP. However, pursuant to Section 401.03.A.8 of
the Zoning Ordinance, the applicant shall provide additional information as
deemed necessary by any City staff or officials.
Lot and Setback Provisions. As shown in the table below, the proposed building
meets the required lot area and setback standards for the B -2 District.
Building Design. The submitted plans indicate that the building will be a one story
building with a total of 11,900 square feet. The primary facade material is proposed to
be splitface block with accents of EF1S, single scored smooth block and brick veneer.
The applicant has also submitted colored building elevations indicating that the primary
brick color will be red /brown with brown and neutral accent colors. Each suite will have
a glass door entrance surrounded by large, full - length windows. The proposed building
will have architectural interest in the form of varied rooflines for different sections of
building's front facade. The proposed retail building is consistent with the requirements
of the B -2 District and the City's Design Standards.
4
•
•
•
The Oak Park Marketplace building is proposed to be 22 feet in height at its highest
point, compliant with the 35 -foot height limit in the B -2 District.
The applicant is proposing a trash enclosure area within the center parking island. This
proposed enclosure appears to be consistent with the requirements of Section
401.15.D.12 of the Zoning Ordinance.
Access. The subject site accesses off of Neal Avenue North (60 Street South). The
applicant is proposing a drive -thru window along the east side of the building and has
allowed for approximately five stacking spaces within the drive -thru lane. The parking
area and drive -thru design appear to be adequate to accommodate the proposed retail
uses on the site. All access and vehicular traffic design issues are subject to the review
and approval of the City Engineer.
The additional curb cut proposed by the applicant is consistent with Section
401.15.F.4.h.10 and 401.15.F.4.h.12 of the Zoning Ordinance regarding curb cut
spacing and number of curb cuts. The subject site has 250 feet of frontage on a public
street which allows them to have a maximum of two curb cuts. The proposed
entrance /exit to the site and the drive -thru exit are located 120 feet apart.
Off- Street Parking. Based on the proposed retail sales and service uses, the required
number of off - street parking paces is shown below:
(12,000 sq. ft. x 0.90) / 200 sq. ft. = 54 spaces
For a drive -in restaurant or a fast food restaurant, at least one space for each 35 square
feet of gross floor area of service and dining area, but not less than 15 spaces must be
provided. The applicant shall provide two additional parking spaces for the drive -thru
portion of the site and an adequate stacking space. According to the submitted plans,
the applicant is proposing to provide a total of 70 parking spaces, including two
handicap accessible spaces, and a 120 -foot stacking aisle for the drive -thru lane, which
is consistent with the requirements of the Zoning Ordinance.
Landscaping. The submitted landscape plan has been reviewed by City staff,
including the City Arborist. Staff was quite favorable of the proposed design and the
planting materials selected. The landscape plan shall be subject to the City Arborist's
conditional approval.
Grading, Drainage & Utilities. Preliminary construction plans have been submitted.
All grading, drainage and utility plans are subject to the review and approval of the City
Engineer.
CONCLUSION /RECOMMENDATION ,
The applicant has submitted the necessary materials for the proposed application. The
proposed use and site design are consistent with the requirements of the Zoning
Ordinance and the direction of the Comprehensive Plan. Based on the information
contained in this report, our office recommends approval of the site plan review and
CUP for the Oak Park Marketplace retail building subject to the following conditions:
1. The grading, drainage and utility plans are subject to the review and approval of
the City Engineer.
2. The proposed signage for the site shall be consistent with Section 401.15.G of
the Zoning Ordinance and the sign design guidelines submitted by the applicant.
A sign permit shall be obtained prior to the erection of any signs on the ,subject
site.
3. Landscaping plans shall be subject to the review and approval of the City
Arbo ri st.
4. The applicant shall obtain a driveway access permit from the Minnesota
Department of Transportation (MnDOT) for the additional access to
accommodate the drive -thru.
5. The applicant must submit additional lighting plans detailing the proposed
exterior building lighting, subject to City staffs review and approval. Mounted
pole height for the proposed parking area lights shall not exceed 25 feet.
6. As access to the site and drive thru area may become problematic, the City shall
maintain a right to review the CUP permit and shall have the right to require the
developer to make modifications to the site access and traffic circulation patterns
should traffic use of, or to the site, create a public safety problem.
7. Sound levels from ordering and announcement equipment shall be in compliance
with Section 401.15.B.11 of the Zoning Ordinance.
6
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OAK P MAkKEE PEACE
PARK HEIGHTS, MINNESOTA
QWHER
POSITIVE COMPANIES, INC.
668 JENKS AVENUE
57 PAM, MINNESOTA 55106
PARR AAOUNT
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PROJECT:
OAK PARK HEIGHTS SHOPPING CENTER
POSITIVE COMPANIES INC.
FRONTAGE ROAD
OAK PARK iHTS, MN
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THE GENERAL CONTRACTOR AS
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AND MATERIAL SUPPUER SHALL
BE RESPONSIBLE FOR REVIEWING
A COMPLETE SET OF PLANS FOR
AU. RELATED WORK.
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DESIGN GROUP INC
NLCH1TECTUIUL
PHONE: 715.235.4848
FAX: 715,235.4898
adgfndg —archi lac ts. com
393 RED CEDAR STREET, SUITE 3 MENOMONIE, 49 54751 www.adg— architects.cam
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MEMORANDUM
NORTHWEST ASSOCIATED CONSULTANTS, INC.
4800 Olson Memorial Highway, Suite 202, Golden valley, MN 55422
Telephone: 753.231.2555 Facsimile: 753.231.2551 planters @naoplanning.coril
ENCLOSURE
TO: Eric Johnson
FROM: Scott Richards
DATE: May 4, 2006
RE: Oak Park Heights — Sign Ordinance 1 Sign Permit Applications 1
"Mega" Animated Billboards
FILE NO: 798.04 -- 05.05
Sign Permit Applications
At their April 13, 2006 meeting, the Planning Commission discussed the current Sign
Ordinance and how the City addresses sign permits for temporary and permanent
signage. The Planning Commission discussed the possibility of establishing an
administrative process and fee for allowing temporary signage. Currently, the City does
not have a specific sign permit application. The general building permit application form
is used and a flat fee of $50.00 is charged per sign. No applications or fees are
required for temporary signage.
It is suggested that the City develop a separate permit form for signage that would
include both temporary and permanent signage. The City Administrator and Building
Official should discuss fees for signage and set up a fee schedule for each that is
adopted by the City Council. If the permanent signage fee remains at $50.00, it is
suggested that the City consider a $25.00 charge for temporary signage. The fees
should be set according to the time and expenses it takes to check, verify and enforce
the sign permit.
Our office will work with City staff in developing a separate sign permit form and discuss
a fee schedule. We will likely have the permit and suggestions on fees for discussion at
your May 11, 2006 meeting. Staff will also consider how sign permits can be tracked
and enforced in a time efficient manner.
Mega Animated Billboards
The City Council, at their April 25, 2006 meeting, approved a six month moratorium on
large signs within the community to allow for study of this matter. Our office has
contacted staff of the League of Minnesota Cities who are currently studying the issue. 1
was provided a copy of a power point presentation made at the Minnesota City
Attorneys Education Conference in February of this year. A copy of that presentation is
attached. Also, Mark Vierlin g has provided information related to a recent 8 Circuit
U.S. Court of Appeals decision related to flashing, blinking or animated signs. A copy is
also attached. The case upholds the City's rights in regulating these signs. The City
Attorney and I are discussing ways in which to approach this issue and how the Sign
Ordinance may need to be changed to prevent any challenges. We will report back to
the Planning Commission with additional information and a draft ordinance.
2
•
Writer's Direct Dial:
(651) 351-2118
Writer's E-mail:
mvierling@eckberglammers.com
Mr. Eric Johnson
Jty ministrator
ity of Oak Park Heights
14168 Oak Park Blvd No.
Oak Park Heights, MN 55082
Mr. Scott Richards
Northwest Associated Consultants, Inc.
4800 Olson Memorial Highway
Suite 202
Golden Valley, MN 55422
•
Re: Recent 8L Circuit Municipal Decision
Dear Eric:
April 20, 2006
". •
EC:BEM LAMMERS. BRIGGS. WOLFF t'.; VIERLING. PLO
Family Law/Divorce • Business and Commercial Law • Criminal Law • Personal Injury / Wrongful Death
Estate Planning 1 Probate • Real Estate • Land Use Law • Mediation • Municipal Law • Civil Litigation
233
1809 Northwestern Avenue, Suite 110
Stillwater, Minnesota 55082
(651) 439-2878
Fax (651) 439-2923
www.eckber,glarnmers,com
In a re004 : decision; : - La Toiz V.:City of Fayetteville, 2006 'WI ').74, U.S. Court of
Appeals, :Eight Circuit, held' that amunicip41 ordinance prohibiting t' animated signs
was constitutional because the ordinance.did.:inot impose a content-based restriction on speech, was
sufficiently narrowly taiiored tO protect the municipality's interest traffic. safety and allowed- for ample
alternative channels: for communication of the information.
An accountant (the "Plaintiff') in Fayetteville, Arkansas (the "City"), was tried and convicted of owning
an maintaining an electronic sign that displayed messages up to twenty-one characters long by displaying
one set of characters, going blank, and then displaying another set. The sign was found to be in conflict
with a City ordinance that prohibits any "sign which flashes, blinks, or is animated." However, after the
conviction, Plaintiff appealed and the City, in 'lieu of another trial, settled the case by agreeing to permit
Plaintiff change the message on his sign once every three hours and refund his fines and court costs.
Subsequent to the settlement, Plaintiff brought a § 1983 action (which provides a private remedy for
violations of federal law) for civil damages against the City alleging that the city had unconstitutionally
infringed upon his right to free speech.
James Lammers
Robert Briggs
Mark Vierliqg
Thomas Weidner
Susan Olson
David Snyder
Sean Stokes
Laura Dornagala
oshua Christensen
Timothy Brausen
The City despite admitting. that it had not enforced the ordinance with respect to flan g:, sg that
display only ,tile ti a :and/or *:t and = only enforced the ord upon Plaintiff - . when - �e
displayed a political Message, persuasively argued that the ordinance, and application thereof; ereo , was a
content- 0eltra re l ation and deserving :of only:im:mediate scrutiny. The Court foun that th :ordinance
caus on its face,. it 'disai i owvs all es sages not thstand ng they content . and, as
rig time and/or temperature did not comprise the : ordinance's neutrality. Once a
ance regulating speech. is content - neutral that ordinance is constitutional if it is
bred fo serve a significant •governmental.* nterest and leaves. :open ample: a. ternative channels
for cornmunication .of. the inforrnatio)n Here. the court held that ordirionce .passed. constructional muster
because:. it was narrowly t ailored to serve the significant gpvempientai interest of traffic safety and
Plaintiff could display his .message either electrenicall rth"airit."474hin• or non- electronically.
MJV /sdb
s eve
. Vier ling
•
•
•
Pre-Empting Predatory Lawsuits
to Erect Big Billboards
John M. Baker
Robin M. Woipert
Greene Espel
Overview
0 The "sign code shakedown"
0 Why land use regulation and sign
regulation require different Mindsets
0 Testing your sign ordinance for weak
spots, now, before the applications
for monster billboards arrive
The sign code shakedown
0 Over 100 similar suits filed in 3 years
0 The plaintiff-sign companies'
objectives:
11 Posting large, profitable billboards where
none are currently allowed
0 Through court orders, or
0 Through settlements extracted to end
litigation
Building them, then selling them to
major outdoor advertising companies
■•••••••••• •••••••••••••••••■•••••••••• •••• ••• •••• •••... •■• • r••• ••••■••••• •••■• ••••■•••••,..
The typical defendant city
111011111111111k , 011111.111.11 ,
C] . A ; de relo:ptng : corntinOnf ,
t` where :applications for big billboards are
MOST likely to be denied.
r� Especially #F your sign: ordinance
CI' has gathered dust (arid not been updated : 0 .
reflect precedents established by the US:
Supreme Court, :Eighth Circuit; :or federal court
dedslons 3n NllnneSota)
D or has been finely -tuned (to draw distinctions
between types :of signs and sign applicants)
la�ntIffs {c sually v a n`t
7: Approval; 'of sign .structures :that 'are.
114' by 48' per fate.:
1 Two -sided
:in With a. single. posh (at center or end)
"trivlsion" technology
t~1 Three messages per side, : changing every 6
to 10 seconds
2
40
•
How- the "shakedown" unfolds
0 Selecting many locations
0 Recycling blueprints
-0 Submitting applications
D,Flling the lawsuit
0.0 The olive branch (settlement)
.»0 The .motion for injunctive relief
Part 1 - the locations
0 The company qulet.iy selects spots
and signs property owners to leases
a In Eden Prairie: 14 different Iodations
• Ice Hopkins: 4 different locations
• The Company's cost: $50 down payment
to landowners for each site
C7 The leases usually acknowledge •signs
are not currently permitted
3
Part — the biweprints
c[ The corripany
proposed locatiOn
Onto a set of
generic Sign
blUeprints
The 'company treats. the alipliCatiOn procest.
No dainit. Of compilance
Parrt
arriVes
it Seeking:
Invalidation of: entire. sign ordinance
Approval r of all its :applications
O. Damages
Or Attorneys' fees
•
Pct 5: the $ ttEemet t offer
0 The .lawsuit will be dropped if the City —
• Approves.X *number of our original applications
{ire Eden Prairie, 5'of ..4):
x Modifies its ordinance with Plaintiff's .input
c •Plaintiffs offer to actively help: >you " fiie your
ordinance so that it's constitutional
0..The result.for them.: a lucrative monopoly
O The result for you:
• Some costs . and 'risks are avoided
▪ An inconsistency that's difficult to defend
■ A precedent that may Invite similar suits
.w.. ••••• .M • • S .w ...... .. .�. .u•r...
Litigation: what plaintiffs want
[] S tarding to "audit* your entire ordinance
✓ Rather than a focused inquiry .about whether
its applications were canstitutionalHY turned
down
O A pro- plaintiff definition of content, neutrality
a. A court willing to*lnvalidate the-entire
ordinance if some of it is unconstitutional
O A court willing to order approval of sign
applications, and award :damages, even
though cities may constitutionally ban big
billboards
Litigation: w h at cities seek
CI Respect for the limited role of federal courts
to strike down local laws
O A practical, not absolutist, approach to
content neutrality
O Deference:to the ability of local •offlclals to
choose the most appropriate path toward
objectives
O :Respect for severability clauses in ordinances
O A distaste for rewarding a plaintiff for suing
about an application that was properly denied
5J
VU'hat courts. d
fa -Plalntiffs:sornetimcs win, and sometimes
:lose •
Hopkins status::: original sign ardinence:enjoined,
. jury , trtal required for: liability end* damages
a: Wen. Pratrit status: an' from sumnnary
3udgcnent fn favor of City
0 Plaintiffs' most effective strate
an ordinance via a preliminary-injunction,
where: the, company can : ,better‘ control: the
timing and . the record:
sr: The f etaphorr: "Pearl: Marbarr'
e paradigm s
How ordinary thinking about land -use.
problems can • cloud your thinking:
about sign law problems
6
Thinking: about discretion
4
■
t: . in la nd- use„ law, preserving discretion is "a
good thing.
sip
you can't:faresee everything
II Algid rules can haVe unforeseen consequences
O In: sigg n law, preserving discretion creates
• 'problems
■ Because signs -are expressive conduct, courts
distrust discretion
a Even W you never. exercise discretion; any
ordinance: that 'a !lows you to exercise It over
sign ::applicatians.may: be unconstitutional
Thinking about fine - tuning
O In land -use law, the best regulations are
often the most precise and specific
O In sign law, the process of fine- tuning your
ordinance (by treating: different types of
signs differently) creates occasions for
content -discrimination
0 "Durnbing down" a sign ordinance to a
simple set of generally applicable rules can
sometimes save it
•
Thinking about hypotheticals
4
a in typical land -use situations, anticipating unlikely
hypotheticals wastes attorneys' fees
Q In sign law situations,.a judge's answers to unlikely
hypotheticais can bring your ordinance .down
* Can someone fly another nation's flag?
1 Can someone fly a nongovernmental, noncommercial flag?
.7
e sign ordinance exam
Several questions that can help you
assess the value and urgency of
overhauling your sign laws
i . • :Does -c rd natce fauor ;commercial:
over nioncornmerclal speech?
D D.oes the "for sale"
sign receive
preferential
treatment that
the "no TKO' sign
next door doesn't
receive?
How favoritish of commercial speech
creeps: into :local ordinances
0 A erne limit:on campaign signs + a
prohibition on" signs not .expressly permitted
+ no express permission for
speech, signs
d Limits: on political or campaign signs that
are more stringent than those on real-
estate or construction signs
0 . Express :permission for on- premises
business . signs without express permission
for noncommercial speech signs
8
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Will On'
fines
WOW AN WASTE
INKED TO 015E4sESP
CAN A'SEHAGE P4Hp
THAT EMITS AI1oE 4
LS VAPORS BE.t AR1 -
UL 10 T DUN MA LIFO
CET II#SWERS;•
iSliit:0.1.4,utts TO
sf
n pass muster?
Is the rat :a$:, eit ome , as the :ape?'
A partial solut €on :. a content-
substitution clause
sormimmommumilmormarrommore
0 Lakeville Section 9 -3 -4: "Signs
containing noncommercial speech are
permitted anywhere that advertising .
or business signs are permitted,
subject to the sane regulations
applicable to such signs."
2: s your flat ban on huge signs truly
'Bans and exClusions
0
always illegal In your city (o'r in a:
particular zone in your city)?
o Before you answer - turn:to-the
"exclusions" subsection .of your
The effect o exclusions
Exciusions from regblation that are
-- ------'--
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The effect of exclusions (cont' d)
0 Exclusions from - regulation that :are
based: on theidentf of the party
posting the sign can sometimes- be
viewed' as content-based, or
undermine your justification for your
regulations:
1 example: exempting all signs posted by
the government
The effect of exclusions (cortt'd)
1 Exclusions from the duty to obtain a
permit are easier to defend than
exclusions from regulation
El if a‘ court finds: that an exclusion from
permitting Is content- based, It doesn't
follow that the regulations themselves
are content -based
3. Do you discriminate between
types of noncommercial speech?
0 Are the flags .
permitted because
of what kind of flag
it Is?
0 :would the "No IKO"
sign be :lawful only
if Joe lko was on
the ballot next
month?
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. 4 Does yOurt ordinance.: require e: period of
: "nonconnmercia I speech anarchy during
g:eneral..election -season?
D.. Ntirtn:. Stat :. ection211B 045. (as,.amended
in •March 2o04) all na, commerdfal: srrgns .
cif any sfxe.mr ay:be posted 1'n any
number , frorni August 1 :in a state general
election year: until ten days- foliowtng the -
state : genera l:.electIon.
0. Many local -sign :ordinances: , we've seen are
more restrictive: than. statelaw
sonne.fall: short In'ways'that embody:
forbldden;contert discrtmihat1on
Aside :: How the '2005 Minnesota Legislature has
complicated your Lability to follow state :law and
the First Amendment
O
The any provision of any. deed restriction, .
sobd tvfston . restrictive covenant, local
ordfriancd, contract, rental agreement . or regulation,
or homeowners association document ...that limits
the right of an owner :or tenant of residential.: property
to, display the, flag' of the United States and the flag of
the State of Minnesota....." .(ch. 168)
a Courts ::ordinances that refer to stat or national slags
violate the First Amendment
0 The . only'safe solution: ensure your :ordinance permits
any (noncommercial) flag
M•
5. Does your ordinance refer to
"churches!' not "mosques"?
:0 Hopkins
w Judge Davis:: original ordinance. violates
equal protection because. it -referred to
churches and.synagogues, but not
mosques.
0EdenPrairie
1 After Davis'5 ruling all.references in the
zoning ordinance to "churches" are •
replaced_ by "places of worship"
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6. Have you reserved too much
discretion?
D Sou rees. of discretion that may raise
concerns-:
it.
Any .provision authorizing permit denial
even if the application satisfies all
specific requirements
V Look at aesthetic review provisions
w :: Provisions that treat signs as conditional
uses
1 A track record of easily - obtained
variances
7. How quickly must you act on
an application or an appeal?
▪ If your ordinance could be viewed as
content- based, it would be prudent to
have self- unposed, formal time limits (in
the ordinance itself) on staff's ability to
sit on the application or an apPeal
a Do you treat sign permit applications as
"requests relating to zoning" under
15.99? If not, you should, but do not
assume that a 120-day delay will be
constitutional.
8. Could your severability clause be
stronger?
0 Example: Hopkins
it The old severabillty clause (recited at page '32 of
edge Davis's order, incorporating Sec. 645.20)
O Conditional
Q The judge, .. not the council, decides if the
ordinance still works without the invalid terms
a The new severabliity clause
O unconditional
"invalidity shall nora(fact the validity or
enforceabliiity of the remaining portions"
Ci Designed to minimize chance of invalidation
•rNN, N •rrrrrw.��W rwr.u•.�. N
9r aes: your sign ordinance .have:
a m4anIngful purpose statement?
.0 NOS' just * , w
to p.ratect: tE a health,.
welfare, safety...... "
0 A that
s tracks the objectives courts :view .as
legitimate, •r
shows ..respect :for. citizens` r aed for self
expression, AND
r takes `it easier to argue that the
restrictions further those goals
Resources
0 2005 Hopkins Sign Ordinance (
570)
: www. hapkinsr on.com/pl *nnin8/ordinemes /3 htmL
Q sign law.com (Randal Morrison,. Esq.)
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