Council approves high-end apartments

But neighboring mall wants to block project

Moments after a lawyer vowed to ask a judge to block it, City Council members on Tuesday unanimously approved a high-end apartment project for an unfinished corner in Burnsville’s Heart of the City.

Council members touted the four-story project — with up to 172 apartment units and 8,000 square feet of ground-floor retail — as a milestone in the redevelopment district’s evolution, on a prominent corner that has sat vacant for years.

But the project’s neighbor — the Nicollet Plaza retail center anchored by Cub Foods — contends it has too many units and too little parking. Renters and their guests will end up parking in spaces needed by shoppers, said Chris Penwell, the attorney for Nicollet Plaza LLC.

Nicollet Plaza is withholding its approval of the apartment plans under a set of private agreements governing easements and other arrangements between the neighboring landowners, Penwell said. Nicollet Plaza and the apartment property are part of a single planned unit development approved in 2004. City ordinance allows shared parking on public and private property in the Heart of the City.

Penwell also said he will contest the council action amending the PUD to allow the apartments on 2.5 acres on the northeast corner of Nicollet Avenue South and Travelers Trail. Penwell says that as a party to the PUD, along with the city, the retail center must give its approval to legally change it.

Discussion between Penwell and the council was tense.

“What you bring up saddens me,” Mayor Elizabeth Kautz told Penwell. She accused him of holding “hostage” the city’s “vision” of completing the Nicollet Plaza PUD in the Heart of the City’s vital core.

“I think you will find that what we are approving here tonight is land use and zoning, and a project that meets all of those standards and qualifications,” Kautz said. “We may agree to disagree tonight, Mr. Penwell, and the judge can take a look at that.”

Penwell said he’ll seek a “declaratory judgment action in court” affirming Nicollet Plaza’s “rights and obligations” under the landowner agreement and the PUD. Kautz said she hopes the city prevails in time to keep Burnsville-based developer Chase Real Estate Inc. on schedule to break ground in June.

“I agree that we can agree to disagree and we can have a difference of opinion,” Penwell told the mayor. “I don’t particularly appreciate being accused of holding this council hostage.”

Chase has a purchase agreement to buy the apartment property from KSH Development. It’s part of a PUD that originally included the retail center, two four-story, mixed-use buildings along Travelers Trail, an office and bank building and 30 townhomes. All have been built except for a building of approximately 129 owner-occupied condos with 10,000 square feet of ground-floor retail.

The council approved the apartment project in its place. The council for years resisted new apartment projects in Burnsville. But with two new members being seated in January and apartment construction booming across the region, the council changed its stance on the type of high-rent, amenity-rich project Chase proposed.

Council Member Dan Kealey said the approximately 40 more dwelling units to which Nicollet Plaza objects would generate more customers for the mall.

“And as a shopper of that strip center for years, and now living on the edge of the parking lot of Cub, I’ve witnessed the majority of that parking lot for 365 days being mostly empty,” Kealey said.

“There are so many benefits to this project coming to this piece of land that I’m shocked that those advantages haven’t brought resolve at the table between the two parties,” he said.

Other than the additional units, the 2004 condo and retail plan is similar to the apartment and retail plan, city officials said. Penwell objected.

“I’ve heard several people say tonight that it’s the same size footprint, it’s a four-story building, but it’s 40 more units,” he said. “This project is considerably over the density allowed by the HOC (Heart of the City) code, and it’s significantly underparked, not only compared to 2004 but simply in terms of what the demands of (the retail center) are.”

The apartments must have one underground parking space per unit, with up to 72 units. In addition to the parking cross-easements within the PUD, the Heart of the City parking deck is a block away, available for overflow and overnight parking, city officials point out.

Penwell predicted renters and their guests wouldn’t bother to use the deck, filling retail center parking spaces instead.

The apartments would be within walking distance of the Minnesota Valley Transit Authority transit station and the future Nicollet Station on the Orange Line bus rapid transit line.

Increased density and decreased surface are tenets of transit-oriented development, according to city staff.

Penwell objected to staff-endorsed city code deviations for the project, such as decreasing the required number of parking spaces from 422 to 237 and allowing excess density of up to 68.8 units per acre, compared with the maximum 56.9 allowed in the Heart of the City and the 52 of the condo project approved in 2004.

“They’re just trying to pack too much onto this particular site, and it won’t work,” Penwell said.

Kautz responded that PUD zoning is a “flexible tool, and we use it often here in the city of Burnsville.”

“You’re a land-use attorney,” she told Penwell. “Then you understand that planned unit developments are flexible tools that are available to us to help make things work.”

Chase has built other high-end apartment projects, such as The Flats at Cedar Grove in Eagan, where rents range from $1,200 to $2,400.

Indoor and outdoor amenities planned for the Burnsville project include a courtyard plaza on the north side of the building, yoga and fitness studios, a swimming pool, barbecue facilities, lighted paths and benches.