HomeMy WebLinkAboutDeveloper Attorney Letter Sept 11 2008I t~ I{ E ,~ lei
A T 'T O F N F Y 5 d T t A W
SUITE 300, US BANk PLAZA, P. 4. BOX 1497
1015 W. ST. GF..RMAIN STREET
5T. CLOU O. MINNESOTA 56302-tA97
TELE RN ONE 320-251-6700, FAX 320-656.3500
EMAIL: MAILC•RNOO N.COM
WW W.RNOO N.COM
September 11, 2008
Thomas G. Jovanovich, Esq.
RAJKOWSKI HANSMEIER LTD.
11 Seventh Avenue North
P.O. Box 1433
St. Cloud, MN 56302-1433
Lori L. Athmann, Esq.
RAJKOWSKI HANSMEIER LTD.
11 Seventh Avenue North
P.O. Box 1433
St. Cloud, MN 56302-1433
Re: Our File No. 16534.003
Dear Tom and Lori:
As I mentioned in my previous email and explained at the Planning Commission Meeting, my
understanding of what happened based upon discussions with the original developers and a
review of the minutes and other available information is as follows:
1. The Developers submitted a proposal to develop approximately 91 acres of land
as a P.U.R.D. (St. Joe's format of a planned unit development). From the
information I have gathered, this was the first time the City had considered a
P.U.R.D. or at least one of this size and scope. To date nobody has been able to
locate any application materials other than the following items which were
submitted to the City: Narrative, Preliminary Plat, and P.U.R.D. Concept Plan.
As you look at the P.U.R.D. ordinance it is clear that it is not just about a
preliminary plat, but also is designed to allow uses in the underlying zoning
district which would not otherwise be allowed. (See 2041 Ordinance Section
52.12, Subd. l ld).
PSeplember 11, 2008102008 09 10
FagATA11633A1603~1.e0erTam tovanovich 09 10 2008.wpd ng
RI.~-. JGO~:. ~h;pLC'1. DFT~ ~,GilJ :" i'la A.\ VC~N K ^F. FF & F1 :ri 85, ~..
~ iVlie (,n••{ [~~ ~ 1 - ai ~3.. L, d. I~r[ -..v -~~t.uY1~l- ~ `u~~4t U. '~3(Tl--'i`t: [.Z t' J i el'a a, I .t~.~ACK~ .}Ci>ttl t\. R.F.t)1,3
.U illan7 z1. _ ~.. f,~ratd W. Vo t...ril ~ J ~a~euce Pamol~ Ft. ~ ~~:.kn.an' '.rn R. 87m~ , roclle ~. M14lor
tiust x r- sr' S7 z ~r. -_. !-a~Gs ! ~. ~r n- t v.~.,nc.r' t..~{U. ,<- i . 4s'ro+.vn ~ . ~i~ A. ~ i ..nr' .. ~~h E Ftshar`
F,arriu I C-crtnn.- ~~ n~ 'd ~., +.?~ya.s".- , ~~t:r,?:.n '.onyx .. Fiir -._mey~r aiciiclas Fi. J .„Ey A.nd*ev~> J SiBfE'
Johi~ J. MeuNrs .e~em C. Kolh 6iY~r* -a. ~ iattor" Chad U. PAiilor`
I. Qun/i/•ed re r.,,e' Ri:?e ! F4. 2. 4 t ,,1y Law vpecinl-~ c r.;t va' by ~ a A ' ,, uxn Sr.~:r Qa•.~ , t tee, 3_ H ! eri to Pie., cc law -> 4J. .,c.rair
~. -.nr t mN ~o Frptace t~.v in ,VOrt.i Gnkata' u ~ t_a,. t~ F r . c e vii 7 „nv ~ Gsk4ra 6 u+~_ o... ~ Coc n-. Ez»mr.er a~Ti. Ls 7. a n,1.~~ „ F ~et~~....l ,.. ..reio xo S. A S ~e-a'.o A._n __ ~,. la.v x fov+u-
September 11, 2008
Page 2
2. It appears from the October 2001 Planning Commission Meeting Minutes that the
Developers showed the planning commission their concept plan for the 91 acres,
and, with exception of a few comments relating to access points, the Developers
were told to move forward with the P.U.R.D. concept. As a side note, I was
informed by my clients that at that time, it was the City who suggested they create
the plan for the entire property. I:n addition, according to my clients, at the time of
their original submittal there was significant political pressure and will within the
community (in part due to the efforts of GRIP) to provide for a variety of housing
types within neighborhoods. This resulted in a desire for mixed residential
developments described in the Planning Commission Minutes as "life cycle
housing, housing for all levels of living." "The Development will include bay
homes, townhomes, single family homes, multiple family homes and senior
units." (See December 3, 2001 Planning Commission Minutes, paragraph 8, page
1 }.
A public hearing was held on December 3, 2001, by the City Planning
Cammission to consider "a preliminary plat, P.U.R.D. application to develop
91 acres with mixed housing, and to rezone the property from current
Agriculture to R-1 Single Family." (See Planning Commission Meeting
Minutes from December 3, 2001). It appears from the record that there was
significant public input and discussion regarding roadway access, traffic and other
issues addressed in the 91 acre project. These discussions were not limited to any
one area but rather looked at the entire P.U.R.D. At this hearing the concept plan
and narrative describing and showing apartments and attached homes on the tract
in question was presented. This was confirmed by members of the City's existing
Planning Commission and a resident at the last Planning Commission Meeting.
4. The Planning Commission did not take action at its December 3`d meeting and
waited until December 19, 2001, to take formal action on the application by the
Developer for preliminary plat approval, and a P.U.R.D. special use permit to
develop 91 acres with mixed housing, and rezoning of the entire 91 acre tract
from Agricultural to R-1. At the December 19, 2001 Planning Commission
Meeting the Planning Commission approved for recommendation to the City
Council a formal "resolution" approving the P.U.R.D. with only a few conditions
listed. (See Planning Commission Meeting Minutes dated December 19, 2001).
"the Resolution considered by the City Planning Commission on December 19`"
PSeptember I I,?008--.C200S 09 10
F'S3:\T:P,1653~3`:003`~LentrTOm Sovanavicfi 09 YO?OOS.wpd cg
September 11, 2008
Page 3
stated that a hearing was held on the application on December 3`d and that "the
purpose of the hearing was to consider a preliminary plat, P.U.R.D.
application issuing a special use permit to develop approximately 91 acres
with mixed housing." (See Planning Commission Meeting Minutes dated
December 19, 2001, page 2 "Resolution of finding"). That Resolution further
stated that "the Planning Commission makes the following recommendation ...
Approval of the P.U.R.D. application granting a special use permit to allow
for the development of 91 acres with mixed housing..." and followed with
items upon which this approval was contingent. 'The Resolution passed
unanimously. (See City Planning Commission Meeting Minutes dated December
19, 2001, page 3).
5. In January, 2002, the City Council considered the preliminary plat, special use
permit for the P.U.R.D. and the rezoning, and tabled action based primarily upon
roadway issues. (See January 17, 2002, City Council Meeting Minutes).
According to the January 17, 2002 City Council Meeting Minutes ...." Hoseh
made a motion to table the PURD application requesting a special use permit
to develop 91 acres known as Graceview Estates until February 21, 2002.
6. On February 21, 2002, the Cite Council conditionally approved the preliminary
plat.
On March 7, 2002, the City Council approved a "Special Use Permit to develop
the property known.... as Graceviefv with mixed housing...." (See City Council
Minutes dated March 7, 2002},
IssueslQuestions:
The following comments are in response to issues and questions raised at the last Planning
Commission Meeting.
A. Special Use Permit. The special use permit was clearly intended to address the
entire 91 acres. On March 7th, the entire property was rezoned to R-1 and a
special use permit for a P.U.R.D. with mixed residential density was approved.
This is the same special use permit P.U.R.D. considered by the Planning
Commission on December 19, 2001, and the topic of the public hearing on
December 3, 2001. According to my clients, this consideration was related to the
PSeptember 1 I, 2UUS.C20D8 U9 10
P'+DATA`,16534`A03'•LererTom Jova~w~-rch 09 1U ?008.~~pd ng
September 11, 2008
Page 4
entire 91 acre tract since the first final plat did not even exist at the time of the
public hearing in 2001. Questions were raised at the present Planning
Conunission Meeting about the typical submittals required for a special use
permit and why they were not provided in 2001. First, the 2001 ordinance had
significant holes in it in this regard. In fact, it does not even formally require a
special use permit, but instead, says that as part of a P.U.R.D. approval for mixed
use developments with densities higher than the underlying zoning district, must
meet the standards for issuance of a special use permit. The provision reference is
only Section 8.04 which relates to the standards applicable to a special use permit.
B. Development Agreement. But what about the Development Agreement for Phase
I that talks about the ability to change standards, prohibit assignability etc..? First,
as everyone is aware, the development agreement used for Phase I was based upon
a form agreement used for t~~pical plat approvals and installations of utilities. It
was not intended nor modified in any way to address the P.U.R.D. issues involved
in this project. The Development Agreement dealt with how streets, sewer and
water and typical municipal improvements would be installed for the first phase of
the development. Those improvements have long been installed. and discussions
about assignability of that agreement are a red herring unrelated to anything
currently being discussed.
C. Preliminary Plats and Final Plats Don't Show Apartments. The Graceview
Coalition spokesperson asked at the last meeting why the plats do not show the
apartment buildings. Preliminary plats and final plats do not show apartment
buildings. It is not legal to show structures on a final plat with the exception of a
CIC plat. Site plans and concept plans show building locations and densities.
D. Roadways, Traffic and Sidewalks. Roadways and traffic were issues which were
heavily discussed in 2001 and 2002 when the P.U.R.D. was approved. These
issues were mentioned in the minutes of every meeting. A member of the current
plam~ing commission acknowledged at the last meeting that the issues being
brought up today are the wine ones they discussed back in 2001 and 2002. If
these issues were not part of the approval what was all the fuss about back then?
Why don't the minutes say "don't. worry because we are not approving anything
that would generate traffic etc...." In fact the complaints, narrative from the
developer, concept plans, the environmental assessment and the minutes all state
otherwise. The traffic issues were considered for the entire 91 acre tract and
NSaptember 1 I. ?bOk~C2068 09 10
f° `J3AT:\~f G53}x:003\LenerTom Joronovich 09 10 2008.~~pd mg
September 11.2008
Page 5
addressed as part of the P.U.R.D. approval process. Additional right of way
dedications and fees were required, and it appears that the City at that time took
action to acquire property from an adjoining landowner.
E. Site Plan Review. Since the project was approved and a special use permit issued
in 2002, the only issue that could be before the City relates to the site plan for the
apartments (to ensure compliance with applicable standards) and adjusting the
P.U.R.D. to lower the density far a reduced number of attached homes. Any
requirement for additional roadway improvements would need to be related to the
actual action under consideration - a reduction in density could not be the reason
for requiring a developer to spend money on roads outside of the property. The
same is true for sidewalks. Offsite sidewalks are clearly outside the scope of a
site plan review and could not rationally be related to a reduction in density of the
P.U.R.D. Sidewalks are many times a community asset. As to the existing
developed lots, the City has already made a decision on sidewalks; at least as it
relates to the developer and P.U.R.D. The homeowners purchased lots without
sidewalks. Had the developer been previously required to install sidewalks, the
cost of each lot/home would have been higher to pay that. cost. If the City now
desires to install sidewalks, this could be paid for with general funds or assessed
to the benefitting adjacent single family homeowners.
F. Time to Act Has Not Expired. The special use permit/P.U.R.D. is for the entire
91 acres not just this tract. Here significant financial investment was made to
pursue the project. Roads were constructed, phases completed, and a project
moved forward based upon a very specific "cove" design. It is apparent from
looking at the subject tract that it would not develop in that shape in isolation
from the development around it. It is clear from the materials submitted as part of
the developer's application that the timeline involved in excess of 5 years. (See
EAW). Today, if a P.U.R.D. is approved, we assume that everyone involved
would make sure that a more formal written document is executed that sets out in
detail what is approved and by when acts need to take place, but we do not have
that here. Special use permits and overlay zones run with the land and don't
expire when action has been taken.
PSeprember 1 I, 2008.C20US 09 10
F:'DAT:1'~ l 0539'.0031LcuerTom Jovanovich 09 10 ?068. wpd ng
September 11, 2008
Page 6
Conclusion•
This development was designed and approved by the City at a time when achievement of mixed
residential neighborhoods was a priority of the community. Density and traffic concerns were
addressed at the time of issuance of the special use permit and approved by the P.U.R.D.
Planned Unit Developments are often referred to as contract zoning. The City's end of the
agreement is that the City achieves a mixed use development over a large tract of land where
traffic, design, open space and other planning issues can be addressed comprehensively. This
was provided to the City. In exchange for these up-front expenses and work, the Developer
obtains development rights in accord with the approved plan. The City made a decision and
commitment in 2002. There are many advantages to a 91 acre P.U.R.D. and all of the area-wide
planning opportunities it provides, and the City got exactly what it bargained for in 2001 and
2002.
Sincerely
---- ~-~-~ ~-w-~..
~..~~e_ ~.~._--~
Igor S. Lenzner - w ~~ ~"~ J~~
ISL/ctg
PSepiember 11, 2006:02008 04 10
F:\DATR\I6S3a\003\LenerTom lovanovich 09 102008. ~~pd clg