Planning board questions commissioner on why M&D permit was denied

M&D Construction came up again during the Jan. 23 planning board meeting, despite the matter being closed by the City Commission during their Jan. 2 meeting.

Mike Wedekind, planning board member, asked at the end of Tuesday’s meeting about the commission’s decision to deny the conditional use permit. The Planning Advisory Board/Zoning Commission voted to recommend approval the CUP during a late November meeting.

Commission denies permit for M&D Construction, forcing company to scale back operations or relocate

City Commissioner Bill Bronson attended Tuesday’s planning board meeting and Wedekind asked Bronson what the commission’s thought process was in denying the permit.

[READ/VIEW Minutes | video of the Nov. 28 planning board meeting]

[READ/VIEW Staff report | video of the Jan. 2 City Commission meeting]

Bronson reiterated much of what he said in his basis of decision during the Jan. 2 meeting and said that he recalled sitting on what was then the joint city-county planning board in 2003 when they approved a zoning request for a residential use in the area near M&D Construction. That residential project never happened and in 2005, the city adopted a new land development code that assigned M-2 Mixed Use Transitional zoning to M&D’s property.

M&D’s property at the triangle intersection of 8th Avenue North, Park Drive and 6th Street North has been under Rhett Hulett’s ownership since 2011 and the property was owner by construction companies prior to that.

The property was a legal nonconforming use until recently when the company began expanding operations and an area resident complained. That prompted city staff to look into the issue and recommend a conditional use permit for a contractor yard type two, which would allow the company to keep operating in their expanded capacity on the property. A contractor yard type two is allowed in the M-2 zoning district with a CUP.

Commission to consider two conditional use permits, one would allow business to stay in place, other would allow new construction

Bronson said he went back and checked agendas and meeting minutes from 2003-2005 timeframe and the desire was to gradually see the area transition from commercial type uses to residential use; there were concerns about proximity to Gibson Park; and traffic.

He said his recollection of the discussions and thought process at that time was that in circumstances like what is now happening with M&D was trying to expand on commercial use would more than likely not be appropriate.

On the M&D request, Bronson moved to deny the CUP and said Commissioner Owen Robinson had concerns about the area and had noted that M&D is successful and would most likely outgrow that area.

In terms of where the commission currently sees that part of town going and with what’s in the best interest of the community, it “made sense for us to deny the conditional use permit,” Bronson said.

That doesn’t mean M&D has to remove everything from the property, but means they need to comply with the existing zoning that allows for no outside storage of materials and limits the company to two pieces of heavy equipment on the site, though standard pickups are allowed, Craig Raymond told the planning board members.

Wedekind said he was frustrated by Commissioner Mary Sheehy Moe’s comments about the planning board and neighborhood council not doing due diligence.

“I think we did,” he said.

Pete Fontana, planning board member, said he was troubled by those comments.

Both of them were referring to mention of Moe’s comments about the request reaching the commission level without addressing the neighborhood concerns as mentioned in an earlier story on The Electric.

Both men said they had not gone back to watch the Jan. 2 meeting video or minutes to see Moe’s verbatim comment, which was, “I have some frustration that this proposal advanced through both of those bodies, with I believe a unanimous endorsement and that it is at this level, that we find these concerns. I apologize to the people that have worked so hard to move it forward.”

Fontana said that some of their members had asked questions about the previous uses of the property and traffic.

“I don’t know what else we would have asked,” Fontana said.

During the Nov. 28 planning board meeting, Chuck Pankratz asked Rhett Hulett, M&D owner, about the previous uses of the property, how long they’d been there, how the CUP would change the usage and if they intend to expand. He also asked about traffic on 8th Avenue North.

Hulett responded that he doesn’t intend to expand and had acquired about 26 acres in the last year for storage.

Wedekind asked how M&D uses the property and Hulett said it’s primarily for equipment and vehicle maintenance.

Hulett said it was a misunderstanding on his part on what was allowed on the property in the M-2 zoning.

M&D Construction still mulling options after commission denied permit

Moe told The Electric Wednesday morning that she called both Wedekind and Fontana to tell them she didn’t mean that they had done anything wrong. She said that it’s more about the process that doesn’t allow commissioners to give planning board members a head’s up if a commissioner is going to go against the PAB’s recommendation. She said it’s hard to go against unanimous decisions like that, especially when they put a lot of work into it.

“It is a rare occasion indeed that a recommendation of staff, approved by the planning advisory board, is going to be rejected by the city commission,” Bronson said.

Most requests are relatively routine, Bronson said, but sometimes additional or different information comes to the commission after a request has gone through staff or PAB.

“I think you did your due diligence. I think staff did their due diligence as well,” Bronson said.

There will be situations when actions reach the commission, which will make a decision contrary to the PAB’s recommendation, Bronson said. “That doesn’t invalidate the opinions or the recommendations,” of the planning board.

Pankratz, planning board member, said it’s important for other developers to know the plan for that area is more residential, “so that they don’t make investments that are inappropriate.”

Public boards, including both the PAB and commission, are legally required to provide their own basis of decision when they go against the staff recommendation. It also helps inform developers and property owners what will most likely be acceptable in various areas of the city, Bronson said.

Raymond said it’s always a good idea for anyone looking to purchase or develop property to do background research and due diligence to understand the zoning and allowable uses. There are a lot of options in M-2 zoning districts, but there are also limitations, Raymond said.

Wedekind asked further questions on how commissioners and planning board members can gather information to help make their decisions.

He said it was interesting to him that commissioners were able to do research and have a different opinion and different facts.

“We’re allowed to go out and do that,” he asked Bronson and city staff.

Bronson said yes, board members are allowed to look at a site on their own so that they know what they’re dealing with. But, he cautioned, it’s not appropriate for a quorum of the board to go look at a property or to talk to developers or proponents. Bronson said that if board members visit a site on their own time, they should disclose that in a public hearing when the matter comes up. Assistant City Attorney Joe Cik told board members not to go to sites as a quorum, since it would constitute a public meeting.

Raymond added that board members can view properties from the public right of way anytime, but if they want to go on to privately owned property they should call the planning office to arrange a visit without trespassing.