HomeMy WebLinkAbout1967 10-24 Planning Commission Meeting Minutes SpecialbUNUITES OF ME. SPBMINT., KMTEJG
OF TIM EDINA PITATWNING OataSSTON
HEM TUESMY, OCIXMR 24, 1967
EDM VILTAM HAIL
bimbers Present: T. L. Todd, Chairman; D. J. Griswold, R. A. Huelster, W. W. Lewis,
A. H. Hiatt, W. F. Shaw
Dayton Representativ-es Present: Jon Abbott, Dick S-waxwon, Ralph !kTartinson
Southdale Residents Present: Warren Stine, John Mortison
Staff Present: Fred 11bisington, Village Planner
Subject: High Rise in Edina
The aneting opened wii-h discussion related to the Southdale Office Development.
mr. MdUcr-k-'s letter of Cctcber 24, was presented to all present 4iich stated that
the Village has no aut]-iority to lse greater restrictions on Dayton's than, existed
at the tis -is they began to initiate &-veloparent plans. It eras agreed that a iTeeting
shouRd be set up specificzIly to discuss tine Daytcr, developient, e- -a though noc,
reqzareaents can be imposed on the developer than presently exist.
The staff presented pictures of flee Pzntial
of a suburban I-xigh rise structure in close proxhid-ty
in suburbia. Ta-m
The pictures were taken at a diste
":"as sligTitly in excess of4 tiTws fl-ke height of the
The responsixe of citizens in Tyrol 1 -tills, in-ane-dilately
suggested that Prudential is a very good neighbor.
Ille- staff then presented copies of a proposed
greate-v setbadz_s for strLy-tures 5 or mare stories in
Ord_u-Aance. 'Iffie pre -sent Ordinanca reqp.:dAvs only a 1
(-v3ffcxo-ls bulledng heights ax: the R-5 arOl C-3 zones.
Ordinance pimposal is that space is a mase desir;�ble
high rise structures.
.132uildirg, the only good exarnple
to single family residential areas
of approxiimtely 520 feet which
10 story wain tcKver of Pruelential.
to tie vazt, was press-nted wbich
azencbieent vi.1hich would remiseheight than naw is required by the
to 1 setback ratio vAii&i Lindirectly
The implication of the mev?
buffer be/breen R --_L Districts and
A appy of a prqp.osed ordinance cmnendirent drafted by residents adjacent to tl-ie
pro; os Dayton was presented. It suggests tliat height should be )Jmited to
6 stories in the C-3 and M-3 Districts unless buffered by an R-2., R-3, R-4 or Of ficx�
aLlilding District. The isuplication hese is -that high rise buildings be buffered by
No agm—mlent was forthomLricr, hm,?
1. --- -ver it appears the. Ckx(adzsion is seeing high
t
=,-se izi a neq �Uic . .
)Jl� It <j ars that whey prefer the qm,:.ce buffer Ix the people b-affer
mnd, ti -at they i_'eal t11 are is a need for vA--ll cLesigned, well lo-cated high rise deevelopents.
I F
Ye -d' L. Hb.-Lsington
DORSEY, MARQUART. WINDHORST, WEST $ HALLADAY
JAMES E DORSEY 11889-H1591
DON/, D WEST JOHN W JONES THOMAS S HAY
WALDO E MAROUART JAMES B VESSEY CURTIS D. FORSLUND
JOHN W. WINDHORST WILLIAM A WHITLOCK 0 LARRY GRIFFITH
HENRY HALLADAY E.J SCHWARTZSAUER CRAIG A BECK
JULE M. HANNAFORD THOMAS M. BROWN DAVID L McCUSKEY
ARTHUR B. WHITNEY CORNELIUS D MAHONEY THOMAS 0. MOE
RUSSELL W. LINDOUIST THOMAS S. ERICKSON JAMES H OHAGAN
DAVID R BRINK MICHAEL E. BRESS JOHN M. MASON
HORACE HITCH PAUL G ZERBY MICHAEL W WRIGHT
VIRGIL N HILL RAYMOND A REISTER LARRY L VICKREY
ROBER' V. TARBOX JOHN J. TAYLOR LOREN RANOTT
DcFOREST SPENCER - BERNARD G. HEINZEN JOHN W. LARSON
ROBERT J.JOHNSON JOHN 5, HIBBS PHILLIP H. MARTIN
M. B HASSELOUIST ROBERT 0. FLOTTEN JOHN J. HELD
PETER DORSEY MORTON L. SHAPIRO
GEORGE P FLANNERY JAMES F MEEKER OF COUNSEL
CURTIS L. ROY JOAN D. LEVINE DAVID E. BRONSON
ARTHUR E.WEISBERG ROBERT J.STRUYK HUGH N. BARBER
DUANE E.JOSEPM MICHAEL A.OLSON LELAND W. SCOTT
FREDERICK E.LANGE LARRY W. JOHNSON LEAVITT R. BARKER
Mr. George C. Hite
Director of Public Works & Engineering
Village of Edina
4801 West 50th Street
Edina, Minnesota 55424
LAW OFFICES
2400 FIRST NATIONAL BANK SVILOINO
MINNEAPOLI6,MINN.66402
TELEPHONE: 332-3351
AREA CODE: 612
CABLE ADORESS:DOROW
October 24, 1967
Re; Proposed Amendment to Zoning Ordinance and its
Effect on Proposed Fiance Avenue Office Centre
Dear Mr. Hite;
You have asked that we express our opinion as to the authority
of the Village of Edina to.amend its zoning ordinance so as to require
Dayton Development Company to limit to six stories the height of the
office buildings which it has announced it plans to build on its 21.85
acre parcel of land on West 66th Street between France Avenue and Valley
View Road. -
Since 1964 the property in question has been zoned C-3 Com-
mercial District. Office building use is permissible in all commercial
districts. There is no limitation on the maximum number of stories for
structures built in C-3 Commercial Districts except the limitation in-
directly imposed by the setback requirements of the zoning ordinance.
Dayton Development Company has amoimced plans to build a complex of six
office buildings on this property --ranging in height from 3 to 10 stories.
Insofar as we are aware, all proposed buildings can be constructed in
accordance with the requirements of the zoning ordinance applicable to
C-3 Commercial Districts without the necessity of obtaining variances.
A building permit has been issued for the first of the three story office
buildings. Construction has progressed to the point that the steel super-
structure has been erected and the roof has been put in place. Some of
the residents who own houses situated to the west of the property in ques-
tion
uestion have asked that consideration be given to amending the zoning ordin-
ance by either limiting the maximam height of buildings in the C-3 Com-
mercial District to 70 feet or by transferring the property in question
I� .
DORSEY, MAROUART, WINDHORST, WEST & HALLADAY
Mr. George C. Hite
Page 2
October 24, 1967
to the Office Building District where the building height limitation would
be the lesser of 3 stories or 40 feet. The rezoning requests, particularly
the one which would limit building height to 70 feet, are based on the
residents' contention that they purchased their properties and built their
houses in reliance on the zoning of the property in question that existed
between 1953 and 1964 when the property in question was zoned Regional
Shopping District in which building height was limited to a maximum of
70 feet.
The residents' argument that they relied. on the zoning that
existed between 1953 and 1964 in buying their properties and building
their houses would be entitled to weight if they now were objecting to
the rezoning of the Dayton property to permit a more intensive use, but
instead they are advocating a rezoning of the Dayton property to a less
intensive use. The Minnesota Supreme Court in Filister v. City of Min-
neapolis, 270 Minn. 53, 133 N.W.2d 500 (1964), said that the time to ob-
ject to the zoning was at the time of the zoning change not after the
other land owner had relied on the zoning. So if it is determined that
Dayton Development Company has relied on the 1964 zoning, under the
rationale of the Filister case it would have superior equities to the
residents who did -not object at the time of the 1964 rezoning. The ques-
tion of relative equities does not, however, appear to be the one that.
is determinative here. Rather, the principal question presented by this
situation is whether the Village has power to affect Dayton Development
Company's right to use its property by imposing amore restrictive land
use on the land by amendment of the zoning ordinance in one of the two
ways suggested. It is apparent that if the buildings were completed at
the time of any rezoning, they could continue as nonconforming uses in
spite of any amendments to the zoning ordinance. The question is at what
time prior to the completion of the buildings does.a property owner acquire
the right to use the land in conformity with the zoning existing prior to
an amendment restricting the permitted use of the land.
The statute which grants municipalities the right to enact
zoning ordinances also authorizes amendments to the zoning ordinance but
is silent on the question of the land owner's rights if the zoning is made
more restrictive. Minn. Stat., 1965, § 462.357, subd. 4. The Minnesota
Supreme Court, despite an earlier case which was adverse to the land owner
(Kiges v. City of St. Paul, 240 Minn.'522, 62 N.W.2d 363 (1953)), in recent
years has made it almost impossible for a municipality, by zoning ordin-
ance amendment, to impose a more restrictive use on property. Although the
Court has not clearly defined the criteria which will control, a brief
resume of the four recent cases manifests.the Court's approach to the ques-
tion. In Foster v. City of Minneapolis, 255 Minn. 249, 97 N.W.2d 273
(1959),.the reclassification of property from commercial to residential
was held to be invalid where.the property was zoned commercial when the
land owner purchased it and the reclassification "divested it of all sub-
stantial value". In State ex rel. Berndt v. Iten, 259 Minn. 77, 106 N,W.2d
DORSEY, MAROUART, WINDHORST, WEST & HALLADAY
Mr. George C. Hite
.Page 3
October 24, 1967
366 (1960), it was held that the land owner had no vested right to the
existing zoning because he had not acquired the greater part of the
property in issue until after the zoning ordinance had been amended and
because no building permit had been issued or actual construction begun
at the time of the rezoning. In Olsen v. City of Minneapolis, 263 Minn.
1, 115 N.W.2d 734 (1962), the Court in rejecting the special permit pro-
cedure for gasoline stations in property zoned commercial, also referred
to the 'crested rights" doctrine. Its comments on this point appear at
pages 12 and 13 of the Minnesota Reports:
"One who has acquired property zoned for particular
purposes under a comprehensive zoning ordinance should
be entitled to rely thereon as against the arbitrary
enactment of amendments thereto which result in the
diminution in value or the restriction of his rights
and. interests in such property. * * * While it is
true that a number of courts have held that the issu-
ance of a permit to erect a structure for a permitted
use under a zoning ordinance does not create a vested
right that cannot be cut off by subsequent amendment,
* * *., we feel that in justice the better rule is to
give -full accord to rights of property owners based
upon interests therein arising out of comprehensive
zoning ordinances. * * * When zones are established,
citizens buy and improve -property relying on the re-
strictions provided by law. They have a right to the
permanency and security that the law should afford."
1"inally in Alexander v. City of Minneapolis, 267 Minn. 155, 125
N.W.2d 583_(1963), it was held that the city could not change the zoning
from one which permitted construction of a six story multiple dwelling to
one which limited the height to 2-1/2 stories. The owner had applied for,
a building permit prior to the rezoning but was denied one because of a
hold order placed on issuance thereof pending adoption of the amended zoning
ordinance; the hold order was also found to be invalid. On the vested
rights point, the Court said simply:
"Numerous courts have given approval to the doctrine
that where zones have been established in a munici-
pality, and property has been purchased with intent
'to use it in conformance with such zoning, the pur-
chaser ordinarily has a right to so use it."
In each of the four recent opinions of the Minnesota court, the
fact that the land owner bought the property in reliance upon the then
DORSEY, MAROUART, WINDNORST, WEST a HALLADAY
October 24, 1967
existing zoning ordinance was cited as the principal reason for not
permitting rezoning to amore restrictive use. That precise ground
does not appear to be present in our situation because Dayton Develop- .
went Company apparently was the owner of the land at the time of the
1964 rezoning. However, as observed Stickel, Report of Committee on
Zoning and Planning, 28 Nimlo Mun. L. Rev. 465, 1:
We find, more and more, the courts finding valid
reasons why a property owner, having proceeded in
reliance upon what appears to be proper municipal
action at the time, is entitled to a vested right
to proceed in spite of the fact that there may have
been a technical violation of the zoning ordinance."
Although the Minnesota court has not had occasion to consider .
what acts done in reliance on existing zoning --other than acquisition of
the property --will prevent subsequent amendments from applying to the
property, several cases from other states announce rules which the Min-
nesota court likely would adopt. For.example, the case of Cos Corporation
v. City of Evanston, 27 711. 2d 570, 190 N.E.2d 364 (1963), involved an
amendment to require more off street parking after a land owner had applied
for a building permit to construct a building according to plans that
conformed to the ordinance then in existence. The land owner had incurred
architect fees of $75,000 and legal fees of newly $10,000. The Court held
that the zoning amendment did not apply to the land.in question. At
N.E.2d 367-68, the Court gave its reasons for this result:
i'
"Under the well -followed rule laid down many times by
this court and the Appellate Courts of this State,
plaintiff's substantial change in position by expendi-
tures in reliance upon the probability of the issuance
of the building permit, based upon the existing zoning
ordinance and the assurances of the city officials,
entitles it to issuance of the permit,
"The rule is a sound one and, contrary to the posi-
tion.of the [City], it should continue to be followed
rather than overruled. Where an individual or corpora-
tion expends substantial sums relying on the existing
zoning and zoning -ordinances and proceeds to seek a
permit in compliance with them, it would be a grave in-
justice to allow municipal officials to hold up action
on issuance of a building permit until an amendatory
F
- j
DORSEY, MAROUART, WINDHORST, WEST & HALLADAY
October 24,1967
ordinance could be passed changing the standards
to be met so that a permit formerly lawful would
now not be issued due to an abrupt change in the
law. it
In state v. Pagels, 257 Wis. 376, 43 N.W.2d 349 (1950), the
Wisconsin court held that the rezoning of plaintiff's land from apartment
building to residential after he had expended $50,000 in plans, surveys
and other costs in reliance on the then existing zoning was not effective
to deprive him of his right to build apartments in conformance with the
previous zoning classification.
On the basis of the foregoing, it is my opinion that any amend-
ment to the zoning ordinance either by transferring the land to the office
district zone or by imposing height restrictions would be ineffective as
to the land in question if Dayton Development Company could show that it
has made substantial expenditures in reliance on the present zoning. It
is fairly apparent that it could not only show substantial expenditures
but possibly also that the building now under construction would not have
been built or would have been located on the property differently were it
not for the existing zoning. If this assumption as to change of circum-
stances is correct, it is my view that the Village of Edina cannot by
amendment to its zoning ordinance affect the right of Dayton Develolment
Company to use the property in conformity with the existing zoning ordin-
ance.
Very truly yours,
William A. Whitlock
WAW:mc
cc• Mr. Warren C. Hyde
Mrs. Florence B. Hallberg
Mr. Faced Hoisington