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HomeMy WebLinkAbout07/23/2001_RecessedCITY OF O COUNCIL t 5 ROOM 104, CITY HALL 201 4TH STREET SE MEETING NO. 15 JULY 23, 2001 RECESSED 4:15 P.M., ROOM 104 A) OPEN COMMENT PERIOD (the open comment section was considered at the regularly scheduled July 16, 2001, Council meeting) B) CALL TO ORDER C) LETTERS AND PETITIONS D) CONSENT AGENDAIORGANIZATIONAL BUSINESS E) HEARINGS •t (1-25) 1) Type III, Phase ll, Conditional Use Permit/G.A.C. Theatres LLC is Requesting Approval for Substantial Land Alteration to Remove Portion of Hill and Change Elevations by 10 Feet or More/North Side of 370' Street NE/East Circle Drive, East of T.H. 63 and Shopko F) REPORTS AND RECOMMENDATIONS G) RESOLUTIONS AND ORDINANCES H) TABLED ITEMS 1) OTHER BUSINESS J) ADJOURNMENT r REQUEST FOR COUNCIL ACTION MEETING 1 DATE: 7-23-01 AGENDA SECTION: ORIGINATING DEPT: I ITEM NO.// dh PUBLIC HEARINGS PLANNING G'I IT DESCRIPTION: Type III Phase 11 Conditional Use Permit #01-18. G. A. C. Theatres PREPARED BY: LLC is requesting approval for a Substantial Land Alteration to remove a portion of a hill Mitzi A. Baker, and change elevations by 10 feet or more, which will result in exposed sandstone cuts in Senior Planner the landscape. The property is located along the north side of 371h St. NEl East Circle Drive, east of T.H. 63 and Shopko. July 19, 2001 At the Planning Commission meeting, the consultant informed the Commission that an area that was to remain vegetated in lieu of a berm was cleared and grubbed by the contractor. Condition #5 would have precluded removal of trees and vegetation in that area had the contractor adhered to the already approved grading permits and waited until after a decision was rendered on this application prior to disturbing that portion of the site. Since that is the case, staff suggests that area should be re -planted with trees and grass. Staff recommended modifications to condition #5 are shown as underlined text. Additional staff discussion regarding the reclamation plan and proposed vegetated benches suggests that the 6 inches of topsoil proposed on the benches is unlikely to sustain the vegetation proposed within those areas. In order to provide adequate soil depth for establishing and maintaining root growth, the landscaping areas at the base of the cut slope and also the benches on the cut slope should be required to have at least 24 inches of topsoil. Staff has recommended a modification to condition #3, which is shown as underlined text to address soil depth within the landscaping areas. City Planning and Zoning Commission Recommendation: On July 11, 2001 the City Planning and Zoning Commission held a public hearing to consider this request. Please see the attached draft minutes from the meeting for additional details. These minutes have not yet been approved by the Commission. Mr. Brede moved approval with five conditions suggested by staff (see below). Mr. Ohly seconded, the motion carried 7-2. Mr. Stever and Mr. Hodgson voted nay. 1. Prior to excavation: a) The applicant shall provide the City with a financial surety consistent with Section 62.1108, 1, i of the Rochester Zoning Ordinance and Land Development Manual, in the amount of $50,000. b) A sign plan shall be submitted to the road authorities and approved and the approved plan shall be submitted to the Planning Department for record. c) A management and maintenance plan addressing spaulling and erosion of the sandstone from the exposed bedrock shall be submitted to the Public Works Department for review and approval prior to excavation. d) The applicant shall secure approved grading and drainage plans from Rochester Public Works, and grading permits from the City, 2. Approval of this permit shall expire one year after the date of final action by the Rochester Common Council, unless permit approval is extended as provided in Section 62.1110, 7 of the Rochester Zoning Ordinance and Land Development Manual. 3. Landscaping must be maintained regularly. Plantings that do not survive must be replaced. Landscaping areas at the base of the cut slope and within the benches on the cut slope shall have 24 inches of topsoil, or more if necessary, to support and maintain root growth and plantings, 4. The fence proposed above the excavation shall be maintained and shall remain in -place permanently. In addition, either "danger, drop-off" or "no trespassing" signs shall be place along the un-cut perimeter of the parcel. COUNCIL ACTION: Motion by: Second by: to: Page 2 RCA July 19, 2001 • 5. Existing trees and vegetation located between the adjacent residential properties and the grading limits shall remain in -place to provide screening. The area in which vegetation was cleared and grubbed in error, shall be re -planted with trees and grass of a similar density and mix of species that previously existed in that area. Council Action Needed: f. If the Council wishes to proceed, it should instruct the City Attorney to prepare a resolution either approving, approving with conditions, or denying this request based upon the criteria Included in the staff report. Distribution: 1. City Clerk 2. City Administrator 3. City Attorney: Legal Description Attached 4. Planning Department File 5. Applicant: This item will be considered some time after 4:15 p.m. on July 23, 2001 in Room 104 at City Hall. 6. McGhie & Betts, Inc. � � /M'?-� 71( '<-'7� Kvenvold, Steve Randy Severson [randyseverson@yahoo.com] Friday, July 13, 2001 6:12 PM To: skvenvold@ci.rochester.mn.us Subject: Zoning Variance and Conditional Use Permits for 37th Street Theater Dear Mr. Kvenvold, I would like to add the attached letter to the agenda and public record for a City Council meeting. I have been told by Planning and Zoning the matter concerning the Zoning Variance and Conditional Use Permits for 37th Street Theater is scheduled to be considered by the City Council on 7/2312001. Please let me know if this is not possible. Thank you Randy Severson 821 Bristol Ln NE 280-2436 W 281-1511 H Dear Mayor and Council -persons, I am writing to ask that you vote against the zoning variances and conditional use permits requested by the developers of the 37th Street Theater project. This matter scheduled to come before the City Council on 7123. I attended the 7/11 Zoning Commission meeting where the items under consideration were discussed and voted upon. During the meeting it was announced that the developer had gone ahead and excavated the trees and started mining out the cliff prior to gaining permission from the City Council. This brazen act caused the variances in question become impossible to mitigate. The Planning Department report (and their recommendation to vote against the variance and permits) is located at this web site: http://www.ci.rochester.mn.us/planning/staff6.htm I would ask that you review the report and visit the development site in person. This will quickly familiarize you with the poor situation the citizens of Rochester find themselves in. What follows is information on the subject and my comments. Please keep them in mind when you come to your decision on the matter. The zoning ordinances (60.417 Findings for Variances) state: "The extraordinary conditions or circumstances (requiring a variance) shall be found not to be the result of an action by the applicant or property owners who have control of the property." My comment: The developers premature activities did cause extraordinary conditions or circumstances. Additional sections of the report state: FINDINGS NECESSARY FOR ISSUANCE OF CONDITIONAL USE PERMITS (for qxcavation Activities): 5) The proposed use will not adversely affect the scenic quality of Rochester or the natural landscapes, environment, wildlife and wildlife habitat; or if such effects are anticipated to occur, the reclamation . plan provides for adequate restoration of the site following completion of the excavation activity; My comment: This rule also has not being considered properly. The plans submitted to Planning and Zoning Department do not effectively illustrate the unsightly damage currently being done to the Rochester landscape. A personal visit to the development excavation/mining site easily shows that the actual exposed wall -face is approaching 100+ feet in height. Running from the parking lot to the tree line. It is unsightly and viewable from great distances. 61.146 Standards for Conditional Uses: The zoning administrator, Commission, or Council shall approve a development permit authorizing a conditional use unless one or more of the following findings with respect to the proposed development is made: 3) The provision for on -site bufferyards and landscaping does not provide adequate protection to neighboring properties from the detrimental features of the development. My comment: The landscaping plans submitted to the Planning and Zoning do not provide any adequate screening to adjacent property. The developers plans only provide landscaping for the appearance of their site. Proper screening would require replacement of the trees that were improperly removed during mining activities. The homes on my street (Bristol Ln NE) are now located about 100' from the current excavation. The un-approved removal of trees has reduced the effective screening between our properties and the theater parking lot. A large number of trees and substantial landscaping (designed for screening) would be required in to mitigate the un-approved excavation. 1)provisions for vehicular loading, unloading, parking and for vehicular and pedestrian circulation on the site and onto adjacent public streets and ways will create hazards to safety, or will impose a significant burden upon public facilities. My comment: The developers plans are designed to maximize parking space at the expense of safety. A cliff will run along almost the entire length of the parking lot. There will be opportunities for people (both local residents and theater patrons) to bypass the proposed fence and injure themselves or others. A representative of the developer stated at the Zoning Committee meeting that no effort was made to reduce parking requirements by sharing with the adjacent Shopko North parking lot. He also stated the the large amounts of parking was only required a few times a year for openings of popular movies during holiday periods. This short term thinking caused long term problems. Final comment: This development has been steam -rolled through the Planning and Zoning process without due regard and consideration to surrounding neighborhoods and beauty of the Rochester Community. The rush by the developer to finish the Theater prior to Thanksgiving and to one-up the other theaters under development may help the developer, but it greatly undermines the goal of our local government to provide protection to citizens and property. Thank you for your assistance and consideration, Randy Severson 821 Bristol Ln NE J PS. Attached is a pre!vous letter to my Councilmen, Mac Evans asking for his help. • > Dear Councilman Evans, > Our neighborhood on Bristol Ln NE is concerned with the zoning > variance > being considered for the new theater being built by Shopko-North. We > would appreciate your attendance at the Zoning Commission meeting > (Wed. > 6/27) where this variance is being reviewed. > The zoning variance will affect a significant number of trees in our > vicinity and cause a gouge in the tree -lined ridge of the > Shopko-North > hill. The variance will also generate another large sandstone cliff > eyesore. The residents of Bristol Lane, Viking Hill Subdivision, and > surrounding businesses have gone to great expense to blend their > property into the existing hills and landscapes and still follow the > current zoning laws. The plans for the theater submitted to the > Planning and Zoning office appear to show no regard to the planned > zoning rules for that land parcel. It appears the designers primary > concern was to maximize land use and parking for the theater. > I believe modifications could be performed to the proposed plan that > will minimize the impact to the Shopko-North hill and still achieve > the > requirement of the theater design. > > If the currently proposed variance come before the City Council, > please > vote against it. > Your attendance and assistance would be appreciated. > Randy Severson > 821 Bristol Ln NE > 281-1511 Home > 280-2436 Work > Reference: > Type III Phase II Conditional Use Permit #01.18 and Variance #01-13. > The applicant, G. A. C. Theatres LLC is requesting approval for a > Substantial Land Alteration to remove a portion of a hill and change > elevations by 10 feet or more, which will result in exposed sandstone > cuts in the landscape. The applicant is also requesting a variance to > the reclamation standard which requires placement of topsoil capable > of > sustaining vegetative growth on all disturbed area (Section 62.1109, > 2), a) of the Rochester Zoning Ordinance and Land Development > Manual). > The property is located along the north side of 37th St. NE/ East > Circle Drive, east of T.H. 63 and Shopko. (public hearing) > City Planning and Zoning Commission meeting to be held Wednesday, > June 27, 2001, at 7:00 p.m. Do You Yahoo!? Aft c LL r.Rnss SECTION A --A N 1111p; A Edd�� � e ]PR £i!P ;lip i!lR £!{R £i{R R ri 'lip if{P GRADING/EROSION CONTROL 1 DRAINAGE/UTILfTY PLAN 37th STREET THEATERS, PHASE It �B t £!Id Ea 1.11lo'b�pm ud. to>m ti� R HEST , MIHHESMAP l • • In ,INN llr,��• M I ���M� ��sr��no • MCI OP moll VN I J � Ivp i 1 � ♦ .yam �P 9v 9 �20 ! pi i C9 'ON � `-- .tbMHO1H >IIVIItl1 M 0 ROI,...STER-OLN'ISTED PLANNING DEPi.... MENT 2122 Campus Drive SE, Suite 100 • Rochester, MN 55904-4744 TO: 12t e7719 DATE: CC U N T. OF www,olmstedcounty.com/planning City Planning & Zoning Commission Mitzi A. Baker, Planner July 6, 2001 �svrn 'Ian RE: Type III Phase II Conditional Use Permit #01-18 and Variance #01-13. The applicant, G. A. C. Theatres LLC is requesting approval for a Substantial Land Alteration to remove a portion of a hill and change elevations by 10 feet or more, which will result in exposed sandstone cuts in the landscape. The applicant is also requesting a variance to the reclamation standard which requires placement of topsoil capable of sustaining vegetative growth on all disturbed area (Section 62.1109, 2), a) of the Rochester Zoning Ordinance and Land Development Manual). The property is located along the north side of 37Ih St. NE/ East Circle Drive, east of T.H. 63 and Shopko, **Piease-see the -attached -Request for Council Action, which was considered by the City Council on July 2, 2001. The Council consented to continue processing this application as a Substantial Land Alteration. Plannina Denartment Review: Applicant(s): G.A.C. Theatres LLC 1111 South Broadway PO Box 249 Rochester, MN 55903 Owner(s): Shopko PO Box 19060 Green Bay, WI 54307-9060 Engineer/Consultant: McGhie & Betts, Inc. 1648 Third Ave. SE Rochester, MN 55904 Requested Action: The applicant is requesting a Type III, Phase 11 Conditional Use Permit to permit a Substantial Land Alteration in the B-4 (General Commercial) and R-3 (Medium Density Residential) districts. The applicant is also requesting a variance to the reclamation standard which requires BUILDING CODE 507/285-8213 • GIS/ADDRESSING/MAPPING 507/285-8232 • HOUSING/HRA 5071285-8224 ...w.eww PLANNING20NING 507/285-8232 • WELUSEPTIC 5071285-8345 FAX 507/287-2275 7"',CCC�111 AN EQUAL OPPORTUNITY/AFFIRMATIVE ACTION EMPLOYER 13 ' . placement of topsoil capable of sustaining vegetative growth on all disturbed area (Section 62.1109, 2), a) of the Rochester Zoning Ordinance and Land Development Manual). Location of Property: This property is located along the north side of 37" St. NE/East Circle Drive, east of T.H. 63 and the Shopko north store. Zoning: B-4 (General Commercial) District and R-3 (Medium Density Residential) District. Referral Comments: Rochester Public Works (see attached) Standards for Approval: This application is subject to the excavation regulations of the Rochester Zoning Ordinance and Land Development Manual. The primary language is located in Section 62.1100. Report Attachments: 1. Excerpts from the Rochester Zoning Ordinance and Land Development Manual 2. RCA from July 2, 2001 Council Meeting 3. Referral Comments 4. Application materials (maps and report) 5. Letter from Robert Domaille Analysis: This application includes 1) a request for a Conditional Use Permit to allow for excavation, as a Substantial Land Alteration, in the R-3 (Medium Density Residential) district and the B-4 (General Commercial) district and 2) a request for a Variance from the reclamation standard that requires application of top soil to all disturbed areas, capable of sustaining vegetative growth. Excavation - Substantial Land Alteration: The applicant is proposing an excavation activity as a Substantial Land Alteration under the Rochester Zoning Ordinance and Land Development Manual. This excavation activity would result in changing the pre-existing grades by 10 or more vertical feet. The activity is proposed to be completed over 3 to 4 months. Proposed hours of operation are from 7 am to 7 pm Monday through Friday and on Saturday as demand requires. Proposed Slope: The proposed finished grade for the property consists of approximately 60 vertical feet of exposed bedrock interrupted by two, nearly horizontal benches, 10 feet in width. The benches interrupt the 60' vertical cut so that there are two 24 foot segments and one 12 foot segment interrupted by the two benches. Landscaping is proposed at the bottom of the cut area, consisting primarily of trees. The two benches are proposed to be 10' in width , with top soil and plantings that include low growing shrubs and vines. The application suggests that the applicant will hire a company to maintain the landscaping and slope and benches on -site. The following is an excerpt from the Rochester Zoning Ordinance and Land Development Manual (LDM) regarding reclamation of a site and the finished slope: Section 62.1109, 2) d) 1) 11 No site shall exceed 3 feet horizontal to f foot vertical incline over a distance of 30 feet • The angle of repose shall be modified to a flatter angle, but not steeper angle, if it is shown that the site will be unstable at 3:1 ratio or that vegetation cannot be established on the 3:1 slope. This provision may be waived or modified by the Council upon the recommendation of the City Engineer. Included with the application report is a Slope Stability Report, prepared by a licensed Professional Geologist. Rochester Public Works comments, dated June 15, 2001 state that the City Engineer has reviewed this report and concurs with the findings and conclusions. It also states that the City Engineer recommends approval of the requested waiver, as provided by Section 62.1109, 2), d), 1). The following is an additional excerpt from the LDM, as it relates to finished slope: 62.1109, 2), i), 3) 1) If an exposed bedrock slope steeper than 3:1 is proposed post -reclamation in a Residential District, the Council may waive the otherwise applicable height and steepness standards (i) if the slope will be screened by a structure, permitted pursuant to subsections (a) and (b) above, (H) if safety features will be incorporated into the site to minimize risk and (N) if sufficient financial assurances are provided by the owneddeveloper in an amount as determined by the City Engineer, and in a form approved by the City Attorney and the Finance Director, and provided to the City concurrently with the required Reclamation Plan. The proposed use for the B-4 portion of the site is a multi-plex theatre. A small portion of the proposed cut would be screened by the building, however most of the exposed cut will be visible; a fence is proposed above the excavation; financial assurances will need to be provided for the reclamation of the site. Proposed Setbacks: The Operations/Performance Standards applicable to Substantial Land Alteration activities include required minimum distance of specific on -site activities from adjacent property zoned residential, commercial and industrial. These setbacks differ for operations that areDroposed to exceed 24 months of operation from those that will not exceed 24 months. The application under consideration is proposed to be completed within approximately 3 months. The excavation area, is therefore, required to be a minimum of 200 feet from adjacent property zoned residential. According to the LDM, this distance may be reduced to 100 feet when a 6' vegetated berm is constructed to screen the activity, which meets all applicable City standards. Excavation is proposed to occur within approximately 135 feet from adjacent property zoned residential. The applicant has shown a 6' vegetated berm on the revised plans. Existing vegetation, located between the excavation and adjacent residential property includes both mature and immature trees. Removing the established vegetation to construct a 6' may not be as effective to screen the operation as leaving the established vegetation in -place. After discussing this issue with the City Attorney, it has been determined that the Planning Commission or City Council could make a determination that the existing vegetation effectively screens the activity such that constructing a 6' vegetated berm would not be necessary. Variance: This application includes a request for a Variance from Section 62.1108, 2), a) of the LDM. This Section states that "topsoil capable of sustaining vegetative growth shall be provided and evenly spread on all disturbed areas." Criteria for Variance: Section 60.417 of the LDM states that in taking action on a requested variance, the approval authority shall make findings supporting the decision based on specific guidelines. This Section and the specific guidelines are attached to this report. • Staff suggests the following findings to the criteria of Section 60.416: a) If the City Council waives the requirement for a 3:1 or shallower slope, in accordance with 62.1109, 2) d) 1), topsoil could not be placed on the near vertical slopes; b) The variance would not be necessary to permit the reasonable use of the property; c) Granting the Variance probably would not be detrimental to the public welfare or materially injurious to other property. d) The variance request is not necessary to provide reasonable economic use of the property. Criteria & Findings: Section 62.1105 of the LDM includes findings necessary for the issuance of a conditional use permit authorizing an excavation activity. The City shall approve a conditional use permit authorizing an excavation activity only if all of the findings listed in Section 62.1105, with respect to the proposed activity are made, in addition to those listed in Section 61.146 (findings for all conditional use permits). Please see the attached excerpts from the LDM that include the above mentioned Sections. Staff suggests that this application does not comply with Section 62.1105, finding #5. This finding requires that The proposed use will not adversely affect the scenic quality of Rochester or the natural landscapes, environment, wildlife and wildlife habitat; or if such effects are anticipated to occur, the reclamation plan provides for adequate restoration of the site following completion of the excavation activity. In the opinion of the staff, the proposed 60 foot nearly vertical cut will result in a permanent visible scar on the landscape that is not mitigated by the proposed landscaping. The proposal therefore does not -meet finding # 5. Staff suggests the following finding: The proposed excavation will result in approximately 60 vertical feet of exposed bedrock interrupted by two, nearly horizontal benches 10 feet in width. The reclamation plan fails to effectively screen the exposed bedrock resulting in an adverse impact on scenic quality. If the Planning Commission reaches the alternative conclusion, you will need to approve finding # 5 as worded in the LDM. Recommendation: The Commission and Council will need to consider the following: 1) A request to waive the required 3:1 or shallower maximum slope, per Section 62.1109, 2) d) 1). The City Engineer recommends approval of the requested waiver. 2) A Variance request from Section 62.1108, 2), a) that requires 'topsoil capable of sustaining vegetative growth shall be provided and evenly spread on all disturbed areas". The Commission will make the determination on this Variance. It will only be heard by the City Council if appealed. 3) Whether maintaining the existing established vegetation between the adjacent residential properties and the excavation and grading provides the require screening vs. removing that vegetation to construct a 6' vegetated berm. 4) Findings required for approval of all conditional use permits and for excavation activities. Ib 5) Hours of operation area proposed from 7 am to 7 pm Monday through Friday and on Saturday as • needed. Hours and days of operation may be restricted by the council for operations within 1,000 feet of any residential areas. The Ordinance does allow for operation from 7 am to 10 pm. If days or hours will be more restrictive than proposed by the applicant, the days and hours should be noted in the conditions. If the Commission and Council wish to proceed with this application, staff recommends the following condisions: 1. Prior to excavation: a) The applicant shall provide the City with a financial surety consistent with Section 62.1108, 1, 1 of the Rochester Zoning Ordinance and Land Development Manual, in the amount of $50,000. b) A sign plan shall be submitted to the road authorities and approved and the approved plan shall be submitted to the Planning Department for record. c) A management and maintenance plan addressing spaulling and erosion of the sandstone from the exposed bedrock shall be submitted to the Public Works Department for review and approval prior to excavation. d) The applicant shall secure approve grading and drainage plans from Rochester Public Works, and grading permits from the City. 2. Approval of this permit shall expire one year after the date of final action by the Rochester Common Council, unless permit approval Is extended as provided in Section 62.1110, 7 of the Rochester Zoning Ordinance and Land Development Manual. 3. Landscaping must be maintained regularly. Plantings that do not survive must be replaced. 4. The fence proposed above the excavation shall be maintained and shall remain in -place permanently. In addition, either "danger, drop-off" or "no trespassing" signs shall be place along the un-cut perimeter of the parcel. 5. Existing trees and vegetation located between the adjacent residential properties and the grading limits shall remain in -place to provide screening. • EXCERPTS FROM THE ROCHESTER ZONING ORDINANCE AND LAND DEVELOPMENT MANUAL 61.145 Matters Under Consideration: The review of a conditional use is necessary to insure that it will not be of detriment to and is designed to be compatible with land uses and the area surrounding its location; and that it is consistent with the objectives and purposes of this ordinance and the comprehensive plan. 61.146 Standards for Conditional Uses: The zoning administrator, Commission, or Council shall approve a development permit authorizing a conditional use unless one or more of the following findings with respect to the proposed development is made: 1) provisions for vehicular loading, unloading, parking and for vehicular and pedestrian circulation on the site and onto adjacent public streets and ways will create hazards to safety, or will impose a significant burden upon public facilities. 2) The intensity, location, operation, or height of proposed buildings and structures will be detrimental to other private development in the neighborhood or will impose undue burdens on the sewers, sanitary and storm drains, water or similar public facilities. 3) The provision for on -site bufferyards and landscaping does not provide adequate protection to neighboring properties from detrimental features of the development. 4) The site plan fails to provide for the soil erosion and drainage problems that may be created by the development. 5) The provisions for exterior lighting create undue hazards to motorists traveling on adjacent public streets or are inadequate for the safety of occupants or users of the site or such provisions damage the value and diminish the usability of adjacent properties. 6) The proposed development will create undue fire safety hazards by not providing adequate access to the site, or to the buildings on the site, for emergency vehicles. 7) In cases where a Phase I plan has been approved, there is a substantial change in the Phase II site plan from the approved Phase I site plan, such that the revised plans will not meet the standards provided by this paragraph. 8) The proposed conditional use does not comply with all the standards applying to permitted uses within the underlying zoning district, or with standards specifically applicable to the type of conditional use under consideration, or with specific ordinance standards dealing with matters such as signs which are part of the proposed development, and a variance to allow such deviation has not been secured by the applicant. FINDINGS NECESSARY FOR ISSUANCE OF CONDITIONAL USE PERMITS (for Excavation Activities): The City shall approve a conditional use permit authorizing an excavation activity only if all of the following findings with respect to the proposed activity are made, in addition to those listed in Section 61.146: 1) The activity will not result in a danger to life or property due to (1) steep or unstable slopes, (2) unsafe access to the property, (3) excessive traffic, or (4) proximity to existing or planned residential areas, parks and roadways; 11 2) Visual, noise, dust, and/or excessive on- or off -site environmental impacts on public parks, • roadways and residential areas can be adequately mitigated by the Applicant and a fully detailed plan is submitted by the Applicant to demonstrate the mitigation methods to be used, the cost of such mitigation, the source of funds for such mitigation, and adequate legal assurance that all of such mitigation activities are carried out; 3) The use of trucks and heavy equipment will not adversely impact the safety and maintenance of public roads providing access to the site, or such impacts will be mitigated; 4) The proposed use will not adversely affect air quality or ground water or surface water quality; 5) The proposed use will not adversely affect the scenic quality of Rochester or the natural landscapes, environment, wildlife and wildlife habitat; or if such effects are anticipated to occur, the reclamation plan provides for adequate restoration of the site following completion of the excavation activity; 6) The activity will be compatible with existing development and development anticipated in the future, including other uses as shown in the Comprehensive Plan, including but not limited to: patterns of land use, recreational uses, existing or planned development, public facilities, open space resources and other natural resources; 7) The activity will not unduly affect the use and enjoyment of adjacent properties; 8) The site plan provides for adequate buffers and screening year-round from unsightly features of the excavation operation; 9) The reclamation plan provides for adequate and appropriate restoration and stabilization of cut and fill areas: 10) The excavation activity will not result in negative impacts on drainage patterns or stormwater management facilities; 11) The proposed activity will minimize impacts on sinkholes, wetlands and other natural features affecting ground water or surface water quality; 12) The intensity and the anticipated duration of the proposed excavation activity is appropriate for the size and location of the activity; 13) Permanent and interim erosion and sediment control plans have been approved by the City; 14) Surety has been provided that guarantees the site will be fully restored, after completion of the excavation activity, to a safe condition, and one that permits reuse of the site in a manner compatible with the Comprehensive Plan, neighborhood plans, the Land Use Plan and applicable City policies. 15) The proposed activity complies with the requirements of the adopted building code. 60.417 Findings for Variances: In taking action on a variance request, the approval authority shall make findings supporting the decision based on the following guidelines: . 1) The approval authority may grant a variance to the provisions of this ordinance if it finds that: a) there are extraordinary conditions or circumstances, such as irregularity, narrowness, or shallowness of the lot or exceptional topographical or physical conditions which are peculiar to the property and do not apply to other lands within the neighborhood or the same class of zoning district; and b) the variance is necessary to permit the reasonable use of the property involved; and c) the variance will not be materially detrimental to the public welfare or materially injurious to other property in the area, is in harmony with the general purpose and intent of this ordinance, and will not adversely affect implementation of the Comprehensive Plan; and d) the variance as granted is the minimum necessary to provide reasonable economic use of the property. The extraordinary conditions or circumstances shall be found not to be the result of an action by the applicant or property owners who have control of the property. In addition, the approval authority shall find that development of the parcel in question cannot be integrated with development of adjacent parcels under the same ownership in such a manner so as to provide for the reasonable economic use of the total site in a manner consistent with the provisions of this ordinance. 2) The Board may grant a variance to the literal provisions of this ordinance if it finds that: a) there has been substantial and detrimental reliance in good faith by an applicant who has received a permit or certificate issued in error by the administrative official charged with enforcement of this ordinance, and b) the mistaken issuance of the certificate or permit is not the result of an action on the part of the applicant, the property owner, or any other person or party who has had control of the property, to provide misleading or incorrect information, or to knowingly withhold information necessary for the administrative official to accurately review the permit or certificate request. 3) The Board shall under no circumstances grant a variance that will allow a use otherwise not permitted within the zoning district or any variance of the elevation or levels for flood protection. 4) In granting a variance, the zoning administrator or the Board may impose such reasonable and appropriate conditions and safeguards as may be necessary to accomplish, to the extent possible under the circumstances, the purposes of the regulations or provisions which are to be varied or modified and to reduce or minimize potentially injurious effects of the variance upon adjoining properties, the character of the neighborhood, and the health, safety, or general welfare of the community. A variance and any conditions and safeguards which were made a part of the terms under which the variance was granted are binding upon the applicant and any subsequent purchaser, heir, or assign of the property, and any violation of a variance or its conditions and safeguards shall be a violation of this ordinance and punishable as such. Ov`v REQUESftR COUNCIL ACTION % MEETING DATE: 7-02-2001 AGENDA SECTION: ! ORIGINATING DEPT: ITEM}l0. REPORTS RECOMMENDATIQNS PLANK G Z, ITEM DESC PTION: 9eterminati by the Council under provislo analogous i Section 0.l50 whe er to process a �cavation ac ' iG ty proceedin as Phil ee PRE EADirector part the GAC eater project ad' cent to the N h Shopko sit as a Planning su tantiallan alteration. June 27,2001 Background: GAC, LLC, Inc., is applying for approval of excavation of the adjoining hillside associated with a proposed theater site. The determination of whether or not this excavation meets the definition of "substantial land alteration" is based on Section 62.1101 (2) a and 62.1101 (2) b, which distinguishes between "substantial land alteration" and "quarry." That distinction in part is based on the height of exposed bedrock slopes. When a slope exceeds 25 feet in height, the site becomes a "quarry' by ordinance definition. Administering this section of the ordinance requires making an interpretation of how slopes should be measured when they are separated by intervening benches,. Staff and the City Attorney are of the opinion that such cuts should be treated as one single cut whenever the overall slope exceeds a 3:1 slope. Furthermore, the City Attorney indicated that the ordinance definition of a "quarry" is satisfied when several cuts occur resulting in exposed rock face in excess of 25 feet in height. The City Attorney concluded that, despite the developer's attempt to "zig-zag" the cuts to the hillside, this excavation constituted a "quarry' and needed to satisfy all of the resulting requirements (zoning, neighborhood meetings, etc.). The proposed finished grade for the GAC Theater property consists of approximately 60 vertical feet of exposed bedrock separated by two, nearly horizontal benches, 10 feet in width. The benches interrupt the 60' vertical cut so that there are two 24 foot segments and one 12 foot segment interrupted by the two benches. The applicant's engineering firm, McGhie and Betts, Incorporated, has been proceeding with site design and grading plans under the impression that staff has concurred with their interpretation that the proposed excavation is a substantial land alteration, because the height of individual exposed bedrock faces is each under 25 feet. The applicant bases this impression on meetings they have had with the staff and on the issuance of grading permits by the Public Works Department involving their review of the finished grade. While Planning staff does not recall having agreed to this interpretation of the relevant provisions of the Land Development Manual, the staff did not identify the potential discrepancy and call it to the applicant's attention until well into the application process. Discussion Section 60.150 of the Land Development Manual states that "Where a landowner has, in good faith and in reliance upon a permit issued in error, begun construction, the matter shall be referred to the Council for disposition." The "permit" referred to in this paragraph refers to permits related to administration of the Land Development Manual (LDM). Even though no LDM permits have been issued in this case, it is clear that the applicant had the impression that their proposal met applicable ordinance definitions, at least, and proceeded with their planning and site work under that impression. Planning staff arguably erred in failing to call to the attention of the applicant the fact that the excavation work being contemplated goes beyond the ordinance definition of "substantial land alteration." Recommendation -- - If the Council concurs that there is grounds for treating this matter under the provisions of Section 60.150, it should direct the staff to continue processing the application for a "substantial land alteration." In addition, to avoid future similar problems, the Council should direct the staff to clarify the language of the sections of the ordinance distinguishing "quarry' from "substantial land alteration." Council Action Needed: 1. If it determines that there are grounds for proceeding under the provisions of Section 60.150, the Council should pass a motion directing the staff to continue processing the application for excavation work associated with GAC Theater as a "Substantial Land Alteration and directing the Planning Department and City Attorney to prepare ordinance amendments clarifying the distinction between "quarry" and "substantial land alteration" in the Land Development Manual. COUNCIL ACTION: Motion By: I)AA5orN Seconded By: M Gl(ot_x Action: Amro, 2 ,Ix fcOCHESTER at i/i'/inneeota TO: Consolidated Planning Department DEPARTMENT OF PUBLIC WORKS 2122 Campus Drive SE 201 4�Street SE Room 108 Rochester, MN 55904 Rochester, MN 55904-3740 507-287-7800 FAX — 507-281-6216 FROM: Michael J. Nigbur Date: 6/15/01 The Department of Public Works has reviewed the requested application for a Conditional Use Permit #01-18 & VAR#01-13 by. G.A.C. Theatres LLC on the ShopKo North Theatre site. The following are Public Works comments on the proposal: 1. Approval of the Phase II Grading & Drainage Plan is required prior to development of this site. 2. The City Engineer has reviewed the 37th St Theatre Slope Stability Report, dated 5/30101, prepared by Jeffery Broberg, LPG, and concurs with the findings and conclusion. The City Engineer recommends approval of the requested waiver, as provided by Section 62.1109(2)(d) 1), of the maximum 3:1 slope based on the Slop Stability Report. 3. The City Engineer recommends that the surety required by Section 62.110(3h), to ensure that the site will be restored to a safe condition, be in the amount of $50,000.00. C:\temp\CUP01-18 VAR01-13 ShopKo North Theatre Site.doc fr 2 � � O O 3 O d L N 4 �'nrn :r Y M cGyyhie Betts, Inc. Rochester Minnesota Land Surveying Urban - Land Planning Consulting - Civil Engineering Geotechnical Engineering Construction Material Testing JUN 2 5 2001 June 25, 2001 Ms. Mitzi Baker Senior Planner Consolidated Planning Department 2122 Campus Drive S.E. Rochester, Minnesota 55906 Re: Conditional Use Permit #01-18 for 37th Street Theatres Dear Ms. Baker: Landscape Architecture This letter is in reply to issues brought to our attention via a telephone conversation after the original submittal of the conditional use plan. We believe it is important to respond to the concems and issues you have raised. The following are our responses to these issues: 1648 Third Avenue S.E. Rochester, MN 55904 Tel. 507.289.3919 Fax. 507.289.7333 1.Assessment of the surrounding roadways: The site is adjacent to CSAH #22 and US 63. CSAH #22 us a county road and US 63 is a trunk highway controlled by the Minnesota Department of Transportation. US 63 is designed to accommodate truck traffic including trucks hauling materials to and from construction sites. All Trunk Highways are essentially designed for 10-ton loads. (Note load weight signage along US 63) The addition of a limited number of trucks hauling soil material from the site and construction materials, such as, steel and concrete mix and block are not sufficient in number to create a problem with -the existing infrastructure. You will note on any given day of the week there are several trucks loaded with construction materials, soils, and other freight utilizing this roadway, as it is a designated truck haul road. CSAH #22 is a part of the County road system. It also is designed to handle construction truck traffic as well as normal types of freight as it is designed as a 10-ton roadway. As with US 63, this roadway handles a significant amount of truck traffic on any given day. The use of designated truck routes with roadway design capacities to accommodate 10-ton loads is a fairly common practice and in fact is encouraged to accommodate such traffic rather then diverting on other secondary road systems. The roadway surfaces of both roads are in good condition. e-mail. mcghiebetts.com Established 1946 J 2. Temporary Stock Pile: The material stockpile is a temporary stockpile intended to be removed from the site prior to the paving of the parking lot. Although there does not appear to be a clear definition of temporary in the ordinance we are describing the situation as being temporary based on the short period of time that the material will be stored on the site. (less than one year) 3. Traffic Management and Signage: The traffic operations and signage plan for trucks hauling to and from the site, including truck hauling and directional signage is the responsibility of the Contractor and must be submitted to the City and County Public Works and Minnesota Department of Transportation for review and approval. The consultant and owner are not to design the signage or traffic management plan. This issue is proposed to be handled the same as the conditional use permit issued for Quarry Ridge Apartments. 4. Removal of vegetation --method of removal: The existing tree and vegetative cover on the areas of the cut slope that must be removed as a part of the Phase II grading will be removed by mechanical means, such as, dozers, backhoes, front- end loaders and bobcat. 5. Maintenance of Existing Roadways: The contractor is responsible for the maintenance of the existing roadways adjacent to the property due to construction activities on the theatre site. Periodic maintenance shall consist of sweeping of the roadway surfaces and use of water spray to keep the surface dust free. 6. Bufferyards: It is our understanding that a 6 foot high planted berm is required to screen the construction activities on the project site towards the residential area of Viking Hills. There is a significant amount of tree cover upslope from the construction activity on the slope and does provide an adequate source of — screening. However it is our understanding that the code does not allow a wavier to this regulation so a 6-f6ot berm has been added to the plans. It should also be noted that the addition of a 6 foot berm is, in our opinion, for screening purposes on the steep side slope does not provide as much protection as leaving the existing wooded area intact. An alternative option would be to make a finding that the existing natural forest area serves as an adequate screen for construction activities and a berm on a steep side slope area does not provide any additional protection or value for screening of construction activity. 1. Spaulling and erosion of the sandstone from exposed conditions: The 3:1 landscaped slope at the base of the exposed face and benches built into the a6 L:AT J sandstone will act as a sediment restraint to catch any spaulling or eroding sand as this may occur. Maintenance of this will occur with any landscape maintenance. 8. Landscape Maintenance: It is our understanding that the 371° Street Theater's Management will hire a Landscape Company to handle all maintenance of the landscape and slope and benches for the site. The above responses should adequately address the additional comments and concerns that may not have been addressed in the original submittal package. If you have any questions or need additional information please feel free to call me. Yours very truly, McGhie & Betts Inc. Josh J. John on Pc: Mr. Richard Freese Mr. Gus Chafoulias Mr. Daniel Berndt Mr. Hal Henderson Mr. Jeff Broberg Mr. Greg Bond F,C .� t d-- y � 0 E Concerns and Suggestions Related to GAC Theatres LLC Project and Future Projects Impacting Bluffs in Rochester Comments prepared from discussion at the July 19, 2001 meeting of the Committee on Urban Design and Environment Background: • CUDE put a significant amount of effort into the development of the substantial land alteration ordinance, which has come into play on this project • CUDE takes seriously our charge to advise the council on issues that impact aesthetics and other aspects of the urban environment • We understand that some may view providing this advice as anti -development. This is not the case. We wish to promote development that minimizes impacts to natural features and aesthetics While the comments relate to this project, and we would support some additional mitigation measures, our intent is not to oppose this project. We hope the comments will be viewed in the context of helping to create better projects in the future. Concerns and Suggestions: 1. It appears there may have been adequate space for the theatre and associated parking without cutting into the bluff. If there had been more opportunity for public input prior to the project proceeding as far as it has, this option may have been more fully considered. There were mistakes on the part of the planning department as well as the developer which limited timely input. By the time the Planning Commission met just over a week ago to consider the project for the first time, major excavation of the bluff had been completed. 2. The proposed project creates a 60-foot vertical bedrock face. The argument has been made that because this face is broken by two horizontal benches, it meets the definition of substantial land alteration rather than a quarry. We feel this'face is clearly in conflict with the intent, if not the letter, of the ordinance. We understand there are efforts underway to clarify this in the ordinance — we support these efforts. 3. The engineer on this project has argued for an exemption from the 3:1 final slope requirements, suggesting that the St. Peter sandstone formation is more stable at near vertical slopes, rather than shallow slopes. This is certainly true in areas where significant vegetation disturbance has occurred. Some of the examples of "natural' instability provided by the engineer include areas where the instability was likely caused by overgrazing. Many examples of stable, well -vegetated St. Peter slopes could have also been provided. This suggests that stability may be • attainable with an intensive revegetation effort. We acknowledge that revegetation of the St. Peter formation once it is disturbed may be quite difficult. We also acknowledge that smaller vertical cuts into the St. Peter may be appropriate in some cases. On the other hand, green hillsides are an important part of this community. If revegetation of flatter St. Peter slopes is deemed too difficult, future projects may wish to minimize disturbance of the St. Peter formation. 4. Major grading of the bluff was done outside of the limits of the grading permit. This included an area that was to be left as a wooded buffer. The Public Works department was forced to issue a stop work order. While this may have been an honest mistake, mitigation is warranted. The Planning Department owned up to their honest mistake by allowing this project to proceed as substantial land alteration rather than a quarry. The developer should remedy their honest mistake through mitigation. 5. Our committee discussed the idea that staffing shortages at the Planning Department may help explain some of the problems that have occurred with this project. Adequate staff may have allowed for a more thorough review in the early stages of the project. Additionally, developers who feel permits are not being processed in a timely manner may "jump the gun" on grading. Our committee would ask the council to ensure there are adequate staff at the Planning Department to keep up with the frantic pace of development in this community. 6. While the current substantial land alteration ordinance provides some safety and aesthetic benefits, other approaches to protecting certain "high value" bluffs or hillsides may be appropriate. It may be useful for the City to develop a policy on bluffs. A comprehensive natural resources inventory would identify such things as high quality forest areas. Hillside wetlands and groundwater recharge areas have been identified; a more formal approach to protecting these areas could proceed. We hope that the Council will consider moving ahead in some of these areas. REQUEST FOR COUNCIL ACTION MEETING DATE: 7/23/01 AGENDASECTION: ORIGINATING DEPT: ITEM NO. Consent Agenda City Clerk Z� —Z ITEM DESCRIPTION: Sound Amplification Permit PREPARED BY: Judy Scherr The Fourth Street Gym and the Rochester Police Athletic Association will be sponsoring a professional boxing event for Saturday, July 28, 2001, at the Rochester Elks Lodge parking lot, 917 150 Avenue S.E. from 5:00 to 10:00 P.M. As a sound system will be needed to broadcast the boxing match, a sound permit is required. The event sponsors are asking the Council to waive the 8:00 P.M. time limitation requirement on the sound amplification permit as well. COUNCIL ACTION REQUESTED A motion to approve the Sound Amplification on July 28, 2001, from 5:00 to 10:00 P.M. for the ` I—L professional boxing event sponsored by the Fourth Street Gym and the Rochester Police Athletic Association. COUNCIL ACTION: Moron by: second by: to: aic.Ss ROCHESTER ELKS LODGE 1091 91715Ta AVE SE ROCHESTER, MN 55904 (507)282-6702 July 20, 2001 CITY CLERK ATTN DONNA 201 4TH STREET SE ROOM 135 ROCHESTERMN 55904 Dear Donna: Please consider this letter a request for a sound amplification permit. The following are the pertinent details: Date Type of Event Location Time Contact Person Event Sponsors Insurance Sincerely, Tim Ryan Enclosure Saturday, July 28, 2001 Saturday Night Street Fights Rochester Elks Lodge 1091 917 15"s Avenue SE, Rochester, MN 5:00 P.M. - 10:00 P.M. Tim Ryan 289-9266 (Home) 273-3991(Cell) Fourth Street Gym and Rochester Police Athletic Assoc. Certificate of Insurance enclosed. REQUEST FOR COUNCIL ACTION MEETING DATE: 7/23/01 AGENDA SECTION: ORIGINATING DEPT: ITEM NO. • Consent Agenda City Clerk P — ( ITEM DESCRIPTION: Reject and Rebid Passenger Loading Bridge at the Rochester International Airport PREPARED BY: Judy Scherr Only one bid was received by the City of Rochester for the Passenger Loading Bridge at the Rochester International Airport. The firm bidding the project, Dew Manufacturing, did not include bid security with the bid. It is requested that the project be rebid at this time. COUNCIL ACTION REQUESTED A motion to reject the previous bid and adopt the prepared resolution advertising for bids for the Passenger Loading Bridge at the Rochester International Airport. / V �- COUNCIL ACTION: Motion by: second by: to: