This transcript is from the Cannon Falls Planning Commission meeting on July 10th. Based on the context provided and the dialogue, I have identified the speakers, including commission members, city staff, and public participants. Note: "Yes me" and "gives me" in the raw text refer to **Commissioner Gesme**, and "benkin" refers to **Commissioner Bentkins**. *** **[3:36] Chair:** Picture that we have not been through yet. Good evening everyone, welcome to Cannon Falls Planning Commission meeting for Monday, July 10th. Uh, roll call would be: Hema? **Commissioner Hema:** Here. **Chair:** Johnson? **Commissioner Johnson:** Here. **Chair:** Gesme? **Commissioner Gesme:** I'm here. **Chair:** Bentkins? **Commissioner Bentkins:** Here. **Chair:** Everybody's here. Can I get a motion for the approval of the agenda? **Commissioner Johnson:** I’ll motion. **Commissioner Hema:** Second. **Chair:** Moved by Johnson, second by Hema to approve the agenda. Any further discussion? All in favor? Aye. Opposed? Carries. Did I... you want to review the minutes of February 13th? **[4:22] Chair:** They're in your packet. Get a motion to approve the minutes for February 13th. **Commissioner Gesme:** I had approved them or looked at them earlier, Commissioner Gesme, and I would like to motion to approve them as written. **Commissioner Bentkins:** Second. **Chair:** Motion by Bentkins, second by Johnson to approve the minutes of February 13th. Any further discussion? All in favor? Aye. Opposed? Awesome, carries. I don't think there's any public input so we're just gonna skip that part. Uh, we got multiple public hearings tonight. The first one will be a public hearing for Ed Reimer, Cannon Falls Mall, for conditional use permit. Neil, you want to update us on that? **[5:08] Neil Jensen (City Staff):** I'm sure. Ed Reimer owns Cannon Falls Mall. Um, back a few months ago, if you remember, we changed the ordinance to allow indoor storage inside his mall by conditional use. So now he's back to get his uh, conditional use permit to allow climate-controlled storage units. There's 126 storage units varying in different sizes—smallest is 5x5, largest is 10x20. Um, so... **[6:00] Neil Jensen (City Staff):** I guess if you want to do the public hearing next and then we'll answer questions after that. **Chair:** So, right now I'm opening the public hearing for anybody that wants to address the conditional use permit for Cannon Falls storage. Does anybody would like to speak on the Cannon Falls Mall? Second call: anybody wanting to speak about the Cannon Falls Mall conditional use permit? Third and final call: anybody wishing to speak to the Cannon Falls Mall conditional use permit? Seeing none, I'll close the public hearing. Uh, committee, do you want to discuss that resolution 2023-02? **[6:45] Commissioner Johnson:** As we have looked at that before with the granting of that condition of use, I would make a motion that we recommend to the City Council that we grant the CUP for the Cannon Falls Mall resolution, whatever it is. **Commissioner Gesme:** I'll second it. **Chair:** Motioned by Johnson, second by Gesme to approve the conditional use permit for Ed Reimer for the Cannon Falls Mall. Is there any further discussion? All in favor? Aye. Opposed? Carries. **[7:39] Chair:** The second item of business tonight is uh, Greg Zabloski on Towering Bluffs. Towering Bluffs planned unit development. Uh, Neil, we're gonna... okay, go ahead. **Shelley Ryan (City Attorney):** Good evening, Chair. Uh, yes, this is part of a continuing process by this property owner and developer. Uh, you have already recommended approval of the preliminary plat and rezoning. Tonight is the narrow part involving a PUD, and uh, that's required because the contemplated rezoning is planned unit development. So we have to follow that process and we actually have to create the planned unit development with the applicant so that he may eventually then proceed with building permits and construction. So there is a public hearing requirement under our PUD ordinances. So that is for tonight; it is solely on the PUD part and as I said, we've already done the preliminary plat and the rezoning—those recommendations are done and in. **[9:11] Shelley Ryan (City Attorney):** Um, we've used the information the applicant or developer had previously submitted in support of his preliminary plat, found that information to be sufficient to continue to move the process forward. I'll note that some additional plans and more detailed information has been submitted that will be reviewed by staff in the context of the final plat process. So this is the stage of PUD. This is the last time I would anticipate this coming before the Planning Commission; this is the last public hearing requirement for the entire project. And then, depending on your recommendation tonight, then there'll be a subsequent City Council meeting. Uh, we hope to put everything together at the end—the final plat, the PUD, the development agreement—and get it all wrapped up um, late summer-ish. So that's what we're here for tonight. **Chair:** So at this time I'll open up the public hearing for anybody that wants to address the PUD for Greg Zabloski. **[10:00] Chair:** Anybody wishing to address the PUD for Greg Zabloski? Third and last call: anybody wishing to address the PUD for Greg Zabloski, Towering Bluffs? Hearing none, I'll close the public hearing. Discussion? **Commissioner Gesme:** Um, have there been any surprise engineering results from... from interviews? **Neil Jensen (City Staff):** There's not been. And actually, Mr. Zabloski and his engineering team, they are virtually done with all their final plans. So we... we have the benefit of seeing some things we normally wouldn't see at this stage and uh, all the... there's a few small items to be addressed, but they've addressed all the items. The only really remaining item is uh, County approval and City Council approvals. There's some County items to address in scheme of things—minor items. **Commissioner Gesme:** We think we resolved all the water issues going north? **Neil Jensen (City Staff):** They have not resolved the water issues going north, but it's not necessarily his in this phase to address that. Okay, yep. So that's in a future phase or something the City Council is tasked themselves with to look at separately. **Commissioner Gesme:** Thank you. Thank you. I do have one question, and I'm not sure for who, but through the process has there been... and I remember talking about this at an earlier meeting, we had the concept and we didn't have the preliminary preliminary plat drawing... has there been any substantial changes or swings in design or layouts since the beginning to get to where it's at now? I'm just curious. **[12:20] Neil Jensen (City Staff):** Uh, there... there has not been, no. Okay. So, uh, probably the really the only notable thing, which is again not a PUD item, is what we're going to do with Parkland or what the developer's proposing for Parkland. That will go before the City Council. So they are proposing Parkland in a future phase which would then be incorporated into the—as Shelley mentioned—the final development agreement. **Commissioner Gesme:** So that would indicate to me that through the engineering process, which you said is largely significantly done or almost nearly done, there's been no surprises. So no having to take right turns on things, which is good. **Neil Jensen (City Staff):** Yeah, no surprises. **Commissioner Gesme:** Okay, good. Thank you. **[13:05] Commissioner Johnson:** And... and I just want to comment, I've got a couple neighbors of mine, we've lived in the neighborhood to the west of that area, just to confirm that there is no thoroughfare road going from Limestone or High Point Road to this development. There would be... continue to be a path eventually where Limestone Road goes now. There's a mowed path that goes up to the water tower, that's right away for water lines. That would continue, and there may be... there would probably be an asphalt path put down there at some time or some access, but no through roads there. I know that was a concern to my neighbors at one time, but that had been addressed before—it wasn't going to be... there was no thoroughfare through there. The developer is also providing easement on his property to provide for a U-turn or turnaround on each of those roads. So if there's any questions about that, hopefully that'll set that aside. That's black and white clear. **[13:37] Shelley Ryan (City Attorney):** Anything else, Mr. Chair? Over here... Oh, there you are. I just wanted to also... the resolution is drafted to tie everything together. So your approval of what I would recommend is a conditional approval based on finalizing the... the final plat, the developer agreement. The PUD agreement will be drafted for later consideration just so you all have a comfort level knowing that you're moving the project along, but there will still be final review and approval of all of those other details necessary for final final plat and related issues. **Chair:** Very good clarification. So this is conditional approval to go to the next step or final development of all plans and approval? **Shelley Ryan (City Attorney):** Yes, on the just the portion... we just want to make sure we've caught that PUD up to where we are with the plats, which we then will be tonight, and then it will be wrapping up the final consideration before the Council. **[14:50] Commissioner Bentkins:** I'll take a motion... I'll motion that, Mr. Chair, to approve Resolution 2023-03 as written. **Commissioner Johnson:** Second. **Chair:** Motion by Bentkins, second by Johnson to adopt Resolution 2023-03 for Zabloski. Is there any further discussion? All in favor? Aye. Opposed? Carries. **[15:30] Chair:** Okay, so the third item for a public hearing is preliminary plat and variances for the Molinar property. Shelley, do you want to give us an overview on that? **Shelley Ryan (City Attorney):** Thank you, Mr. Chair. Uh, the city did receive an application from property owner Dave Daniel Carl Molinar to develop property street address 6300 296th Street East. I think everyone is sort of familiar with this to some level. The application before the Planning Commission is a preliminary plat seeking to develop four lots. Within those four lots will be two lots that are proposed residential use. The current zoning is Urban Reserve. So this is consideration of not only the preliminary plat but two variances that the applicant has deemed necessary to pursue this particular project. In your packet is a fairly lengthy report detailing the application, the existing conditions, property size, laying out for you the applicable portions. **[17:04] Shelley Ryan (City Attorney):** Um, we kind of leave behind the PUD concept that we were just talking about and now we're into a different concept called subdivision, and that... that carries with it a different set of rules and regulations under code and state statute that we need to follow. So that's why that got a little lengthy in the staff report so that you had all that information at your fingertips. So then it's a two-part consideration: not only the preliminary plat but then whether or not there is an ability to allow variances to go along with it. **Chair:** Okay, so at that point, uh, I'll open up the public hearing. Anybody wants to address the uh, application for preliminary plat and variances for the Molinar property? **[17:49] Jake Mitchell (Applicant Representative):** Good evening. Thank you for considering this proposal tonight. My name is Jake Mitchell. I'm representing this group that's um, affected by the outcome of this proposal. Just as in your packet is like the outline here, it's the application of development and specific requests as it relates to the access to this property. As you can see, the application calls for splitting the Molinar property located on the north end of town into four lots. The majority of this property is going to be split into two larger lots—almost 90% of that land is going to go in these two larger lots, which is intended to be sold to existing landowners in that area. The neighbors are going to purchase it and add it to their property. The remaining land, about 12 or 13% of it, we're asking to be split into two roughly four-acre lots to be used as residential as... as mentioned, one single-family home on each one of them. Okay? So I'll remain clear that there's two residential lots, one home on each one of them—no more than two houses. **[18:34] Jake Mitchell:** The proposal hinges on those two residential lots and those variances. I wanted to give a little bit of context to the proposal, um, and I think it's important for you to know exactly why we're asking... excuse me, is that mic on? Nope... There we go, okay, thank you. So I wanted to give a little context to this proposal, as I think it's really important for you to know exactly why we're asking what we're asking. I saw the application... um, it doesn't exactly tell you why we're asking what we're what we're going for. Um, so you'll find this property to be extremely unique within the city of Cannon Falls, but our request makes sense, I think, if you look at it. I appreciate the work that some of you have put into this already. I know I've talked to at least two of you and at least one of you went out to the property, so I appreciate the work that you've put into it. **[19:19] Jake Mitchell:** Um, so like I said, you'll find it to be unique. Our request makes some sense when you look at the property, but it also fits the priorities of the City Council. Right when the election season was last fall, all six members said that housing in Cannon Falls is what they wanted to address, right? Is one of the top priorities. And here's an opportunity to add two houses to Cannon Falls. It is two houses, but if you looked at some of the stats from 2022, only seven new houses were built in Cannon Falls in 2022. Here's an opportunity to increase that by almost, you know, to get to 25% of that with one approval. **[20:05] Jake Mitchell:** So what we're asking for is to access the property via what's commonly known as 5th Street. In previous conversations, we came to the Planning Commission over a year ago. At that time, we decided we would pursue um, on the east-west end of that, that 5th Street becomes a private drive. At that point, we said, "Okay, we'll have conversations, see if we could get added to that easement and have that private drive service four homes instead of the two homes that it currently serves." We had preliminary conversations; both families who live on that private drive currently are open to it. Personally, myself and the other party would like to build a house here. We chose to choose this alternative route for a couple different reasons. The reason being both neighbors recently purchased their homes within the last handful of years anticipating having a private drive. We want to be good neighbors, you know? They want to have a private drive. When they bought their house, they thought they were buying a house on a private drive on the edge of town and it was nice and secluded. **[20:50] Jake Mitchell:** Secondly, that road is just not set up for construction traffic, especially, right? Imagine having interstate trucks coming through there with trusses or a cement truck or an excavator coming through there. It's... it's very narrow. In fact, you can't even get two cars to go by it right now. When that happens currently, one car has to back up into a driveway or what limited green space there is because of its land... because of the landscaping and trees, it's impossible to pass two cars, let alone construction traffic. So we want to be good neighbors to them and we want to honor that. **[21:36] Jake Mitchell:** And... and more importantly to me is that in when that private drive comes onto Highway 20, it's an extremely dangerous intersection. I think you... most of you know what I'm talking about. When you're coming out of town, you have the option to just go straight on Highway 29 to Highway 52, right? Or you can go if you're off to the right and take Highway 20 to Hastings. So you're going from 30 miles an hour to 40 miles an hour to 50 miles an hour. And I lived on Highway 20 for five years and they're going at least 55 miles an hour by the time they got to my old house. So as we're slowing down to pull into that private drive, there's cars in your rear of your mirror getting up to speed—60, 70 miles an hour sometimes. So it's extremely dangerous. You're crossing over Highway 20 before you can even get in the right-hand lane of traffic, you're hitting the stop sign, and then you've got to cross over Highway 29 just to get into town, right? Let alone pulling into that private drive. **[22:22] Jake Mitchell:** Like I mentioned, you're slowing down to five or ten miles an hour. There's no turn lane there; that turn lane is to go on Highway 20. You're almost coming to a stop to make that right-hand turn, meanwhile traffic behind you is buzzing up right up behind you. Every time you do it, you're looking in that rearview mirror thinking that somebody's going to run right up on top of you. Um, so if this all works out, I've got four children—they're all going to learn to drive while I'm living in that house. I will not let them go that direction, right? That's the main reason for me is I don't want them going that direction. My oldest is 12, so in the next handful of years I'm going to be getting into that. I don't want to make that turn every single day, a couple times a day. I certainly don't want my kids to do it. **[23:09] Jake Mitchell:** Ultimately, all we're asking for is uh, truly nothing more than to be able to access these two lots via what's commonly known as 5th Street. Um, that road has been there for a very long time; it's been assumed as a road for a very long time. I think when we started this process over two years ago, we had our first conversations at City Hall. We left, we're calling it 5th Street. A couple days later I got a phone call saying, "Hey, when we did some more work on this, we found out that 5th Street was never actually recognized as a legal street." I'm not sure what the terminology was, but I think everybody's known it as a road forever, right? There's a house located on this road—its address is 5th Street. The City Council a year ago granted Gemini a temporary stop sign for traffic heading south on 5th Street, right? Council action called it 5th Street. **[23:55] Jake Mitchell:** Um, I think there's plenty of examples where it's been treated as a road, and I think that road is set up to handle the additional traffic that two houses would bring. Currently it's two... two sets of adults who are going to be there, eventually there'll be some kids driving, but we think that um, that it can handle it. We think that it makes sense in this situation. Again, I just want to emphasize one last thing before I leave. I want to emphasize how unique of a situation this is, right? I don't know where else in town you have a road that's been commonly referred to as a street for years and years and years, right? That house sits on there—I think it's over 100 years old. I know that road's probably not that old, but say 50 years. Gemini used it as 5th Street for their construction project, and there is some sort of easement that exists there. I don't know the details of it—I think the City Attorney would know more, I think Dr. Molinar's attorney would know more about it too. But there are so many things here that make this property so unique that I don't think you're going to see this anywhere else and I think it makes sense in this situation. So I'm happy to take any questions if you have them. **[24:41] Chair:** Let's see who else wants to... okay, thank you. **David Olmstead (Public Speaker):** Bill swanna talk to the... oh hell yeah. All right. I'm David Olmstead. I've got the largest property on 5th Street. Um, met many, many of you and I know I speak loud enough you can all hear me as I'm addressing... **Chair:** It might not pick it up on TV. **David Olmstead:** Okay. My name is David Olmstead. I've got the largest property on 5th Street—uh, 1701 5th Street North. My mailbox is not on 5th Street, it's down by the gas station. Um, that's... that's another bone I've would have loved to have picked but I was told not to. Um, I'm the one that is most directly affected by this. Um, the current road has a bend in it already from the amount of traffic that comes up north on 5th Street. The... my property line is actually on the other side of the current gravel as you travel north. You'll... you'll see a visual line in the satellite photo. Um, the increase in traffic on 5th Street... when I purchased that property four years ago, August 9th four years ago, I was under the assumption that the city easement ended at the pump house, at Pump House Number Three. And I was informed by that by the city uh, maintenance worker, the... the Police Department... it's overall that's where the easement ended. But in reality, from a document that I just acquired last week, um, that easement affects all the way to Highway 20. So the so-called private road that extends out to Highway 20 is not really private. And I've emailed Neil Jensen, I've emailed Mr. Gesme, both of the copies of the easement. I don't know if those documents have been shared. **[27:00] David Olmstead:** But and to add to that, I believe there's also an easement from the early 90s when the um, tank was put on top of the hill, correct? So that the city would have easement to have a maintenance road to get up to that tank. I believe that's... that's another one I've... I've been told, but I don't have a copy of that easement. But has anyone had just addressed the State as far as coming in off of... down off of the asphalt, right up the hill? The shortest distance to the property. I've been told that the State would say no, but has anyone asked? It's the shortest distance to water, shortest or off of Highway 20. **Neil Jensen (City Staff):** Like uh, where are you talking on Highway 20? **David Olmstead:** Uh, right by Canon Auto... the... the Napa... it's got the Napa sign. In between Doc's practice and that auto shop. The City owns a stretch that's 87 feet wide. It's the shortest distance to the proposed developments. **[28:37] Shelley Ryan (City Attorney):** Mr. Chair, there has been insufficient information provided by the applicant to address those specific types of concerns and potential solutions. We're not at that stage yet. **David Olmstead:** Okay. But we appreciate the the... yeah, my dad was a County Commissioner, retired after 26 years. He would... and I got drug along with him to talk to all sorts of different people—uh, farmers, you name it. But if there's a way to work things out, there typically is. And that would make the most sense. Yes, the State's going to have to be involved in it, but I think it's an avenue to be pursued. That, or coming off of Highway 20 where you've got access to water within 600 feet to the development. Less than 600 feet. Um, that... that's my input. If it has to come up 5th Street and hang up... hang a left off to the west, so be it. I've given my input on everything. **[29:20] Commissioner Johnson:** But... you have a question for you? **David Olmstead:** Sure. **Commissioner Johnson:** Sorry, looking at a plat map here trying to find your property. So I'm not clear on what your position is. What are you asking? That an alternative route...? **David Olmstead:** Mind if I step up there? Yeah. Well, I got these in this... the City owns stretch of roads right in that piece right there, right? Currently that's an extension of City property right in there anyways. So again, this little strip and here's where Well Three is, yeah. And that property runs over to Well Five. **Commissioner Johnson:** And where's your property at? **David Olmstead:** It's [points to map]. Getting rid of about 10... 10 feet of dirt, 15 feet of dirt. **Commissioner Johnson:** So it's your position would be that there's a different path? Am I understanding that right? Or pursue the optional maybe see if it's an option. **David Olmstead:** Okay. Just want to make sure I understood your position. Thank you. And that's it. Thank you. **Chair:** Thank you. Anybody else wishing to address the committee? **[30:14] Leon Hansen (Public Speaker):** Uh, Leon Hansen. I own one of the properties up there. I was just curious, did... did you folks get this letter from Dr. Carl? Okay. I wasn't sure. He had to go out to the West Coast; his younger sister is on hospice now and he needed to go see her. So I wasn't sure if you had any clarification on that at all. Um, yep. Good, thank you. I just wanted to make sure. Thanks. **Chair:** Thanks. Anybody else wishing to address the committee second time? Anybody wishing to address the committee third and final call? Anybody wishing to address the committee? I'll close the public hearing. Committee? **[31:41] Commissioner Gesme:** How many variances are they asking for? **Chair:** Two variances. I just want to make sure... Shelley, can you address this a little bit about as far as what the... what's not provided here? **Shelley Ryan (City Attorney):** Thank you, Mr. Chair. Um, there's a few issues with this particular application that I've laid out for you. Uh, preliminary plat is one set of considerations, and within the preliminary plat you get the requirements that there be lot frontage on a public street. So I'd like to just stop there for a moment and talk through that. Public street is open to the public; it's dedicated on a plat and open to the public. It is not, by city code definition, a private driveway and a private easement. In consultation with our city engineer, you know, understand the difference between an easement for access—we don't know who has, by the deeds, we... we can't verify who has the right to use and come and go from that easement, but we can tell you as a matter of law that it is not a public street as is required by your city code. Okay? They've sought a variance from that requirement. **[33:13] Shelley Ryan (City Attorney):** The problem with that is that the requirement is established as a subdivision requirement. Okay? We're in plat land, we're not in zoning land. Subdivision requirements can provide for variances, but only if allowed specifically by city code and only under the criteria established by city code. Your city code does not allow variances from subdivision requirements. Therefore, as a matter of law, you... you would exceed your authority by granting this variance or recommending that the Council grant the variance. That's... seems insurmountable. Um, but the requirement exists for a reason; it is a requirement set forth that public streets serve a subdivision that's going to be opened up to development. **[33:59] Shelley Ryan (City Attorney):** The other issue with this is that there's a zoning inconsistency. The residential zoning of less than 10... one house on less than 10 acres, that's a zoning issue. Conceivably, you can entertain a variance to the zoning, the underlying zoning classification, but the problem with that is that it is guided Urban Reserve in your Comp Plan as well. So again, it's not necessarily insurmountable, but they would need to go through the process of having a Comprehensive Plan amendment and a rezoning in order to accomplish this purpose, and that's not before you; has not been asked for. So sort of at a... it's... it's in... it's a premature subdivision is what this is. And to request the variances while I think part of the process doesn't get them where they need to be under city code. Clear as mud, I know. **[34:46] Commissioner Johnson:** Um, so that's what I thought. I know we've... we've rezoned other areas. Um, if this were a developer coming in with a planned development of 20 homes and had the ability therefore to create a road up there to do all the infrastructure, then that would be something that would be allowed under city code? **Shelley Ryan (City Attorney):** Not necessarily, not no. Okay. And certainly that's a different project, different context, whether and to what extent Planning Commission let alone the Council would entertain rezoning Urban Reserve. As you've seen in the memo, it's there to preserve the the rural-type character of the property until it's ready for redevelopment. And city code standards in the subdivision ordinance tell you when... pro... guide you in terms of deciding when is property ready for development. And having a developer with a plan that can be, you know... if the street issue is if the developer proposes to pay for the streets as is contemplated by our ordinance and then there's a rezoning application, that can be... and a Comp Plan amendment application that can be processed under the ordinary course of your code, that could proceed. **[36:19] Commissioner Gesme:** To what I understood after reading some of the code on... or the zoning on Urban Reserve, Diane—was it...? It's the name "Reserve" is reserved for the future when your other options are used up of plan development in the Comprehensive Plan? Is that... is my understanding correct? I'm just kind of checking my logic and what I understood. So if we use those as checkpoints: if all the other development options were used up and we said that's the only land that we can develop now, we'd still have to go through those other steps which are not being asked for before us right now, is my understanding. All right. And we've not used up all the other options anyway for development. So I don't know that... **Commissioner Johnson:** Well, and I could make that... yeah, yeah, I appreciate that. I... I'm just doing all doing it... what if we do...? Because we have changed some Urban develop already, uh, for on the south side for commercial development, I believe. And uh, but I there again, that would my understanding also would be it's a whole plan development, not just a couple of holes. So that if I came in with a developer and said, "Hey, we've got—kind of like Greensmith Builders did just to the east of there, you know—they came in with a plan for the whole area that was accepted." And so if somebody came in with a plan for the whole area, plan development that would benefit the town, that we would consider that. But obviously for just a small section wouldn't perhaps justify um, reclassification. **[38:39] Shelley Ryan (City Attorney):** Commissioner Johnson, that... that's certainly true. And a Planned Unit Development is a process that exists sort of outside our normal concepts of zoning. It's a way in which you can take a... an area of land with several different uses and put an overlay zoning on that and say, "Okay, these can be compatible if in... under certain circumstances and conditions." Right? And again, that's... that's very different from what's being asked of you today. Again, it's a... it's a preliminary plat incorporating both residential and Urban Reserve uses and then not really meeting all the performance standards that are set forth in the code. **Commissioner Gesme:** Okay. So... see, I can see... I just want... can I ask one more question maybe, but um... oh, yeah, go ahead. Legally we can't support this variance as it's applied for today, correct? **[39:26] Shelley Ryan (City Attorney):** Legally I think it would be subject to a challenge um, by an interested party. I... I don't have someone in mind; I'm not saying that someone's called me and said, "I hate this, I want to challenge it." I'm just saying that there's a... there's a very straight path from State Statute governing subdivisions to variances of subdivision requirements, and there's... there's not a path for that in the city code presently. So you... there's no authority to grant it. There's no variance to give because it can't be given. And again, that pertains to the streets issue only. Uh, the applicant could come in uh, and... and agree to pay the cost of extending the streets. Uh, we would need to still figure out the zoning issues in terms of the the residential use component and whether or not that... that would be amended or... or permitted through some process. Um, but as it stands today, without that indication from the applicant, it... it really... you you can't approve it. **[40:40] Jake Mitchell (Applicant Representative):** Is that a comment about the zoning? Um, we've been doing this for about two years. We've been... we've been working on this project um, and up until Dr. Carl submitted this application, the zoning was never even something we talked about. We talked about it with Neil and Diane very early on in the process and it was a... it was a simple, "We'll rezone it to R2." That's what we're told: R2. And I've heard on so... Diane at that point told me that Urban Reserve there's a like a "holding zone" for lack of a better word. In fact, I took that... that's her exact quote when she was... when you guys were considering on April 11th of 2022 a different project. "Urban Reserve is like a holding zone for a lack of a better term; you put at Urban Reserve and so you know what to do with it." Like I said, we met in over across the hall here and it seemed like an easy... an easy change, I suppose. Just rezone it R2 is what we're told. We're two years into this and just recently zoning became an issue. Tonight really is the first time I saw it listed on the um, on the application, and that was submitted... that was the first time we really even talked about zoning with... it seemed like an easy deal just to rezone R2. Can I just ask the question, what... what is 5th Street described as? What is 5th Street then if it's not a legal road? **Shelley Ryan (City Attorney):** Yeah, you met Diane Howard, correct? **Jake Mitchell:** Diane Howard, yes. Do you know what 5th Street is described as if it's not a public...? **Shelley Ryan (City Attorney):** It's a private easement. Just... [property owner name] owns that property; it is burdened by a private easement. That's where its authority to use that stretch of unimproved private driveway arises from. It does not arise from a dedication and an open public street. And you can follow that in the definitions under city code; makes it pretty clear. **[42:42] Jake Mitchell:** Okay. Um, my... my question is, you know, we... we've heard that variances are granted all the time. Um, March 13th, Mr. Jensen went... did a presentation to the City Council about variances being granted all the time. And I just did some research today uh, with some legal assistance because I'm... I'm... I wouldn't have known where to look, but this is from State Statute: it says "variances may be granted when the applicant for the variance establishes that there is a practical difficulty in complying with the zoning ordinance. Practical difficulties as used in connection with the granting of a variance means that the property owner proposes to use the property in a reasonable manner not permitted by the zoning ordinance. The plight of the landowner is due to circumstances unique to the property, not created by the landowner, and the variance if granted will not alter the essential character of the locality." That's pretty much this property in a nutshell. You know, I mean, that... that really sums... sums it up—that variances are there for a reason. We're... we're simply not... my... my family is simply trying to build two homes that will have minimal impact on... on what you're dealing with on a daily basis. **[44:14] Jake Mitchell:** And I thought we had a meeting here—I don't know when, but it wasn't that long ago—and I thought the City Engineer came up with a... with a good resolution to the project, and I felt pretty good after leaving that meeting. Um, but now here we've done everything that the City has asked us to do um, through this whole process with, you know, getting information ready, getting it engineered, getting it surveyed uh, to the tune of in excess of twenty-five thousand dollars now, and now here we sit at this meeting hearing one more roadblock that we didn't know about before. And so the frustration level is getting fairly high here. And especially... I think it's... it takes the frustration level to the next entity of this because I know the City is always worried, and justifiably so, is always worried about, "Well, what's the future going to bring?" Well, in a situation of a variance... from my eight and a half years sitting on the Council um, and the 30 years that have passed since then, we did a lot of variances. And in those post-30 years, the... the City has never been sued for any variances since we've ever done. And that's because a variance doesn't have to be... "Oh, it's a similar situation"; it has to be nearly exact. **[45:29] Chair:** I wasn't really clear on what you meant by that. **Jake Mitchell:** No, no, what I... what I'm saying is that the... the definition of a variance has to be nearly exact. If somebody, you know... if somebody in the future is going to come and say, "Well, you did it there, you have to do it for me..." **Chair:** Let me ask you a question. Yeah. And this was actually the proposed owner, okay? He's going to build and we give him a variance on the road that's not a road, and then the... the person that he sells his house to is going to say, "Are you telling me there's no street coming to my house?" What do you tell him? **Jake Mitchell:** They didn't know that before they ever bought it. I mean, there... there is a... there is a road there. **Chair:** No, it's not. We just told you that. **Jake Mitchell:** I drive on it two or three times a day. Oh, you do? I see the tracks. Yeah, you go around that gate. Yeah, I'm just looking for the future because I think the reason we're in this little deal here is because the people that started that up there in the first place weren't really looking out for the future, and now here we sit. So good. **[47:01] Jake Mitchell:** I just think... my response to that was seven years ago I built a house in the middle of a field at the end of a gravel road right next to my in-laws. So, different in-law I'm going to try to build against Nick right next to this time, and we had an easement—our drive went right down their property. And when he sold their house at a similar time as them, we just provided the easement to that... **Chair:** That's your private drive. I'm talking about a road that doesn't exist going to those two houses. **Jake Mitchell:** Yeah, I... you know, I think we're thinking about what's going to happen down the road. Like I said, I've got four kids that are going to learn to drive, right? I mean, at what point do we think about Dr. Carl Molinar who's trying to sell his property here about tomorrow too? He's landlocked at that lot right now, you know? What... what can you do with that property? He would like to sell it, he's got plans to sell all of it. So I don't... **[47:47] Commissioner Gesme:** This is just kind of a piece... a different question for me: who provides maintenance on that private road right now? Who does snow plowing, gravel replacement, grading? **Jake Mitchell:** We volunteered to do that, to... all maintenance and snow plowing. **Commissioner Gesme:** So that in the past, who's been doing it? **Jake Mitchell:** As far as I know, it's plowed by the City up until that Pump House Number Three. Yeah, which would be past where we're looking to put our driveway. Um, like Leon mentioned, we want this to happen so badly that I'd be willing to plow myself. I'm going to have to do a long driveway anyways; I just keep going on it if I had to. **[48:19] David Olmstead (Public Speaker):** Me again. Megan... I'm not against this, I'm trying to help you with alternatives. Uh, if it's got to go up 5th Street or 5th private street, whatever you want to call it... I mean, so be it. But what I suggested... um, I think if we can get an agreement with the State, I'm trying to help help both families here. I think it's... for me to live right next to an asphalt road, I think it'd be a fantastic deal. I mean, boom—come down your driveway and you're right there at a stop sign, hang a left or right and go into the country or into town. Um, if you walk down the trail that might be left over that the City is going to be using um, to get to their pump house... I mean, you're... you're going to be walking down or biking down that trail, but it's uh... it... it's just my suggestion. Um, so just trying to help, thanks. **[49:04] Commissioner Gesme:** So what's our alternatives as we sit tonight as here tonight? **Shelley Ryan (City Attorney):** Obviously you can recommend denial based on the proposed resolution and the legal issues that we've discussed. You can recommend a conditional approval of some kind. Um, you know, there's... there's a bunch of hurdles that... that would need to be worked out uh, to proceed in compliance with city code. Um, can recommend approval. It's your... your options. **Commissioner Gesme:** So, Commissioner Gesme, I'm... here's my mindset is... is... so I understand the recommendation based on legal standpoint, so thank you for that—that there's part of it that we don't have the authority to prove right now. To me, that's kind of black and white. The next question is then, um... like to always know what our solutions or options, not just "No, it's done." So okay, we can't do that that way, but are there other ways to accomplish kind of a desired outcome in the legal way in that? And I don't know what that is yet. I think as Shelley touched on it a little bit about um, uh, zoning change, correct? Was that... was that what it was? **[51:25] Shelley Ryan (City Attorney):** Let's see... that's the second component. Again, there's two issues at play. There's... there's the street issue, which is where the lack of... lack of authority stems from. That's a subdivision requirement, and... and it would be uh, susceptible to challenge if... if there's a recommended approval of a variance of a subdivision without that process in your code. And it's not just versus city code, it's State Statutes too, right? Is entwined with that? **Shelley Ryan (City Attorney):** Correct. Okay, just want to make sure. Yeah, your author... a city authority's derived from State Statute and your Charter, but in... in terms of of these terms, it's State Statute that applies. So that's Issue One. Now, if there were any willingness on the part of the developer, the applicant, to uh, follow the code requirements and put in that street, it may not be deemed premature on that basis. But it is at this stage without any commitment from the property owner to put... or willingness to put a street in. Uh, the second issue is that zoning component. Again, not insurmountable, but there's a process for that and it would need to go through that process um, in terms of a review and an application to amend the Comprehensive Plan, uh, which is currently guided Urban Reserve. And then... because your zoning has to follow the Comprehensive Plan, which is your primary land use guiding document, and then through that process then the... the property could be looked at rezoning those couple of lots. **[52:12] Bill Angerman (City Engineer):** So we'd have to change the Comprehensive Plan or modify that. That's my view, yes—the land use plan within the Comp Plan. Yeah. Okay. And to note on that, there's been no analysis on that. There, you know... we can't... we can't even make a recommendation on that because that's... that's... there's no information that's not been recommended yet. Yes, Chair... Mr. Chair, if I could. Steve... oh, there you are as well. Add one thing Mr. Hansen alluded to. We had met on... City Engineer, we had met... I don't remember when that was, a year ago or so... and... and and we had talked about different options. And we talked about different options of uh, these two lots accessing the private easement to the west. And we'd... and we'd said, "Okay, if you do that, there's going to be some conditions that staff would want to see: the driveway widen, make sure we have a turnaround, we get an ambulance and they're a fire truck, etc. there." **[53:43] Bill Angerman:** Then we said, if you tried to pursue the uh, to the... to the east, the you know, 5th option, then that would need to be public right-of-way. There'd have to be a meeting with Mr. Olmsted, we'd have to resolve that... there was a lot of hurdles. And then last week when Neil and I were going over this, we had to remind ourselves at this point we are not in the "option business." You know, Neil and I are not in the... we really shouldn't be proposing that. What we should be doing, and Shelley reminded us through a memo that you know, really the variance part on the street is to me... for me as the engineer, you know, I don't look at the zoning, that doesn't necessarily apply to me. I look at the street part, and it was: they can't meet the public right-of-way, the access portion of this. Hence reason why you got a really short engineering letter. So that was the sticking point. **[54:29] Bill Angerman:** Uh, there are other options. Some of them we've reviewed, some of them we have uh... depending upon your discussion tonight, if you will, you know, elect to deny this or recommend denial, you know, we'd be happy to talk through some of those options. I think some of the sticking points in the past—again, this is my conjecture so the people in the audience say differently—but I think it was a cost. Who's paying for the street? If it does come from the... you know, if you're going to have a public right-of-way across Mr. Olmsted's property, somebody needs to pay for that road, you know? Who pays for that? So I I've interpreted this as a cost issue in addition to the variance. But we stopped at the variance, City staff being, because uh, at that point, you know, we don't get to provide alternatives when we actually have a proposal to review. So I just wanted to provide a little bit of insight. **[55:14] Commissioner Gesme:** So if we could snap our fingers and a road was installed for two... you know, a hundred dollars—I know it's not that, I'm just making that up—if we could install an official road in there, it gets a lot easier. **Bill Angerman (City Engineer):** Yep. Plat right-of-way, correct. Work with Mr. Olmstead to have right-of-way the streets. From a street perspective, right? I'm not looking at the zoning and some of that; I'm just looking at the streets. Then that sounds like the main crux of the State Statute of the approval of the plat as a subdivision, right? **Commissioner Gesme:** And see... uh, not the quickest, but sometimes I can put things together. And then um, that kind of clears that thing. But I know there's costs, so that's not insignificant. And then there's the two variance requests, which is the lots less than 10 acres and then not having a frontage road to public street. But it would be if there was a public road there. **[56:04] Shelley Ryan (City Attorney):** If they resolved the public... public from the subdivision ordinance um, and you... and then there's authority of course then to consider the variance from the minimum lot size and the rezoning issues and all that entails. But it would not be barred, if you will, as a matter of law. **Commissioner Gesme:** So we knock some things... get knocked down, they're taken care of. But I know it's... it's probably not inexpensive. Um, so can I ask a question then of the requestees here: has there been discussion about cost amongst the seller and the buyers on the cost of road and what if that could... you come to some agreement to put in that small chunk of road? **[56:49] Jake Mitchell (Applicant Representative):** Uh, yeah. It's a deal-breaker. Yeah, it wouldn't happen. Okay. **Commissioner Gesme:** That kills this project? **Jake Mitchell:** A question for anybody here can answer it. So that road, you know, like I mentioned earlier, it's been assumed to be a public road for a very long time. Whether it was not or not, whether it was known that it wasn't public... what does it take to become a public right-of-way? You know? And then is it possible—because there are gravel roads within city limits, not many—especially a new newly established road? I imagine there's going to be an issue, but is there any legal precedent? As far as... this road's been there for 50 years or so and been used semi-publicly. Is there any precedent to that? **[57:38] Shelley Ryan (City Attorney):** Uh, Mr. Chair, the answer to that is yes, and quite simply, you cannot adversely... residents using uh, access... again, a private driveway cannot adversely possess and create a road against the City. It's the City's choice to open the road as a public roadway. So I I sense your frustration, I understand that. Um, you know, and as I said, I think you can follow it straight through the definitions and the code and the requirements. We're not pulling a fast one. Um, you know, it is just simply an application of plain language to the proposal that was given to the City. **Jake Mitchell:** And the only way to recognize it as a road is to pave it and bring it up to the City? **Shelley Ryan (City Attorney):** It's not about paving. It's about a public dedication on a plat. So when this if... if this um, in a different situation in more general terms, someone comes in to plat property, the plat contains dedicated roadway and easement. And as part of that, there is a understanding from the applicant that they're going to pay for that street improvement, from the... for the public improvement. And it's borne by the applicant because they're the ones driving the development of that parcel. Um, it's different in a smaller situation with so few lots to spread the cost of that. Um, you know, you've seen that where street improvements are assessed against 20 lots. That's a very different context, but the rules don't change. Um, and you can't... just a private driveway no matter how often it's used—even just by the City to access its own property or other owners on that... on that thoroughfare on that way—doesn't create a... a public road. That's a separate concept. **[59:12] Jake Mitchell:** But if the City wanted to try to help us with this, what is... what is that process as far as recognizing it? Maybe... maybe you just addressed that, but is it possible to have a gravel road? Is what I'm asking. **Shelley Ryan (City Attorney):** Well, Bill, I'd defer to you on that. **Bill Angerman (City Engineer):** Let's take it one step at a time. Okay. So the first step is it'd have to be platted and then the underlying property owners would have to agree. So there's two underlying property owners: Mr. Olmsted would have to agree and the City would have to agree. That would be the first step. Then the second step is the road construction. You know, who constructs it and then who pays for it. And then if there's a deviation from this... I'm not going to call variance because I I haven't researched this part of the code... you know, can... would the City be allowed to leave a gravel road in a public right-of-way? Uh, I don't know if the seeking kind of variance for that. I'm gonna... I turn that one back to Shelley. **[59:59] Shelley Ryan (City Attorney):** So, and I think that's a separate issue. Again, it's... it's private now and it remains private until it's dedicated as a public street on a plat, right? **Bill Angerman:** So it has the first step—it has to be platted and the two people that own the property underneath it have to agree. **Jake Mitchell:** Okay, all right. I appreciate you asking that question. You know, from... from what it becomes gravel to where our house is going to be is 1500 feet. You know, we can't put a road in. So and we're gonna... our plan, we're budgeting to get utilities up there. We're not asking for any help on that. We're planning to pave anything that's on our property; we're going to pave our driveway, the long driveway, which is close to half of that 1500 feet. We were willing to do that. We just... we just can't do it the rest of it. **[1:00:46] Commissioner Gesme:** Well, what I'm like... and what I'm hearing though is here's some path... some path options to get there. It's... it... I think it's when I'm hearing Shelley see is that it's not on the plat to make that a public road and it's... so it's putting on a drawing. So that's the easy part. Then there's improving it somewhat. We don't know if it can be gravel or not, right? So that would have to be investigated. It generally no, but I don't know the exceptions often. **Commissioner Johnson:** Okay, yes. Yeah, we'd have to explore trying to figure out that, which the concept would be that would be lower cost than the asphalt, right? I'm assuming that. But okay. Sorry, Commissioner, you guys made a lot of questions but... oh, I love it. That's all we learn. Um, I noticed somewhere in all of this there were two other parcels that were tentatively up for sale. None of what we're discussing here tonight would prohibit those other two parcels being sold to those neighboring property owners, or would it? Or is that a whole different issue? **[1:02:17] Shelley Ryan (City Attorney):** That's a great question, Commissioner Johnson. The plat is seeking four lots. So it's one lot, all lots—they're in it together. So at this stage, there's no way to separate them out in my view. Um, note that Lot One has the least amount of uh, issues with it. I mean, I... I think it's zoned correctly, it's got the right amount of land, it's... um, you know, that's the easy issue. Lot Two becomes problematic because they do... think they're seeking the access off the private easement for Two, Three, and Four. So you'd encounter those same issues with that... that second largest or that other large lot. **Commissioner Johnson:** So they could apply to sell the big lot as a separate whole thing—the one you said there was no issues with? **Shelley Ryan (City Attorney):** Let's just say potentially. I mean, that... that's not something that we've reviewed and looked at in terms of a single lot out of this foursome. And... and so that... that's something they could look at. Okay. **[1:03:28] Jake Mitchell:** But possibly ask what the other two lots are there? Are you referring to the farmland? Okay. Yeah, there were... there were... there's one a 36-acre wooded bluff and then I think the 18 acres is the farmland acreage. And again, that's access over the private easement. So that's what tied that into the analysis. **Chair:** Any other questions? Well, I hate to do this, but based on the information from our City Attorney and um... I'm gonna move that we accept Resolution 2023-04 for the denial of the preliminary plat and variances. **Commissioner Johnson:** I will second that motion. **[1:04:41] Chair:** Moved by Gesme, second by Johnson to move Resolution 2023-04 to deny the preliminary plat and variances. Is there any further discussion? **Commissioner Gesme:** It just feels like to me we need to add on here... I mean, it doesn't feel good. And I'm... I guess I'm speaking for me personally: we want to find solutions, yeah, to make this happen. And within the rules and you know, the our city... city laws, State Statutes, and our zoning and long-term and strategic plan. It feels like there could be some further discussions to try and figure out some nuances. And if by denying this, it would be simply denying it as written on this paper. It's not to mean that it couldn't be made to work differently. And and unfortunately with maybe some potential costs. So I'd like to suggest that there be some immediate ensuing meetings to discuss those options and just lay out what those paths could be and do some kind of checks on: Is it legal to do this? Can we... can we not? Or can we have it as a gravel road within the city limits or not? Is it possible to have a shorter path from 20 from the tie road and... and not have that gravels? I don't know what the answers are, but it seems like there are... there have been brought up some ideas here that should be flat... that could be fleshed out a little more. I don't know. Somebody takes that, not us, but it'd be Neil and Shelley and or City Engineer to kind of evaluate some of those options with the proposed developer. Is that reasonable to ask? **Chair:** Any further discussion? All in favor? Aye. [Opposed?] Carries. Okay. **[1:07:00] Chair:** Well, that's... I was looking for my... my sheet. Yeah. Adjournment is the next item. **Commissioner Gesme:** Mr. Commissioner, you made a motion return? Yes. **Commissioner Johnson:** I second that motion. **Chair:** Any further discussion? All in favor? Aye. Opposed? Motion carries.