by John Gessner
Thisweek Newspapers

A developer's plan to include a Walgreen's store and hardware store in a mixed-use project at County Road 42 and Judicial Drive was rejected Aug. 16 by the Burnsville City Council.

Debate over the project recalled debates of the early and mid-1990s, when city officials were pressured by developers to allow retail uses along Burnsville's western County Road 42 corridor.

The city has long insisted that the corridor between the railroad tracks west of County Road 5 and the Savage border be preserved for office and industrial uses. The city wanted to generate "head-of-householdî jobs, not allow another busy commercial strip.

Some retail uses, including restaurants, have been allowed in "limited commercialî areas west of County Road 5. Some "accessoryî retail uses have also been allowed in the area known as Southcross Corporate Center.

But a proposal from EFH Realty Advisors to build the Walgreen's and hardware store along with townhomes and office/industrial buildings at Judicial and 42 includes a "more than excessiveî amount of retail, said City Planner Jenni Faulkner.

City staff and the Planning Commission recommended denial of the project. Council members unanimously denied EFH's request for concept-stage approval of a planned unit development.

Council members said the project is not allowed under the city's comprehensive plan, I-3 (office and industrial park) zoning ordinance and a 1991 city study specifically dealing with permitted uses in Southcross Corporate Center.

"It totally deviates from the intent of this area,î said Council Member Liz Workman.

EFH sought a planned unit development (PUD) to allow construction of two office/warehouse buildings, four townhome buildings with 18 to 24 units, and a freestanding Walgreen's store on 13.5 acres. The hardware store would have been in one of the office/warehouse buildings.

Freestanding retail buildings and townhomes aren't expressly allowed in the I-3 zone, but could be allowed under a PUD.

The I-3 ordinance permits retail only for sale of products stored or manufactured on the site, according to staff. Walgreen's and the hardware store don't comply.

The ordinance allows up to 20 percent of floor area in an I-3 building to be used for retail, but EFH is seeking to apply the 20 percent allocation to its entire project, not just one building.

"This is different than how we interpret our ordinance,î said a staff report, which added, "A freestanding retail building is not the intent of accessory retail.î

Nor is freestanding retail in the I-3 zone allowed by the comprehensive plan, staff said.

Peter Coyle, an attorney representing the developer, maintains that the proposed retail uses are lawful based on his interpretation of the same documents city officials cited.

Could the city successfully defend its case in court? asked Council Member Steve Cherney.

"I believe that our position is the stronger position,î said City Attorney Matt Brokl.

EFH President Gene Happe said "amenitiesî like Walgreen's and the hardware store are needed in Southcross Corporate Center. Happe, who built the Southcross Commerce Center on County Road 42, has long had an interest in the area.

And the nearly developed area has been a success, generating more than 3,000 jobs and $100 million in development, Happe said. But workers have to leave the area and brave traffic on busy County Road 42 to have lunch or stop at a store, he said.

Mayor Elizabeth Kautz said Happe, a past proponent of holding the line on retail, argued against construction of a proposed Cub Foods store in Southcross Corporate Center in 1995.

About a dozen residents of The Boulders townhomes first addition on Judicial Road attended the council meeting to support the EFH proposal. They say the townhomes proposed for a parcel north of a planned realignment of Judicial Road would buffer their homes from the office/industrial buildings. Residents of the 55-and-older community also like the proximity of the Walgreen's, which would be relocated from a current store location just west of County Road 5.

At least two residents of The Boulders second addition oppose the plan, which would place Walgreen's directly across from their homes.

In an interview, Happe said the Walgreen's would have helped make his project work financially. He said Burnsville Economic Development Coordinator Judy Tschumper had urged him to put townhomes on the parcel north of Judicial.

Walgreen's pays top dollar for its properties, Happe said. That revenue would have offset the smaller take from the construction of townhomes rather than more industrial uses, which are "far more lucrative to me than housing,î Happe said.

He and his attorney will discuss whether to challenge the council's ruling in court, Happe said.

John Gessner is at burnsville.thisweek@ecm-inc.com.

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