Loading...
CC 2007 09 24 CHANHASSEN CITY COUNCIL REGULAR MEETING SEPTEMBER 24, 2007 Mayor Furlong called the meeting to order at 7:05 p.m. The meeting was opened with the Pledge to the Flag. COUNCIL MEMBERS PRESENT: Mayor Furlong, Councilman Litsey, Councilwoman Tjornhom, and Councilman Peterson COUNCIL MEMBERS ABSENT: Councilwoman Ernst STAFF PRESENT: Todd Gerhardt, Roger Knutson, Laurie Hokkanen, Kate Aanenson, Bob Generous, Paul Oehme, and Todd Hoffman PUBLIC PRESENT FOR ALL ITEMS: Kathleen Thomas Planning Commission Julie Nelson 2165 Murray Hill Court Ken Larson 7615 Iroquois Avenue PUBLIC ANNOUNCEMENTS: Mayor Furlong: Thank you and good evening and welcome to those here in the council chambers and those watching at home as well. We're glad that you joined us. At this time, without objection we'll proceed with the agendas that were distributed with the packet. The first thing I'd like to do is just make a quick public announcement. Due to lack of agenda items, the th regularly scheduled October 8 City Council meeting will be cancelled and we will resume our nd regular schedule on Monday, October 22. With that I'd like to move to our consent agenda. CONSENT AGENDA: Mayor Furlong: So at this time I would ask if there are any items that people would like to separately discuss or pull off the consent agenda. Anybody? The one thing I'd like to do, I had some questions with city staff for item (k) which is adoption of ordinances. Would like to, I'm comfortable going forward with the Chapter 1, Chapter 7. I believe that's right in Chapter 18. I'd like to pull off the item relating to accessory structures in Chapter 20. Kate Aanenson: That's correct Mayor. Mayor Furlong: Or I'm sorry, Chapter 1. Kate Aanenson: Chapter 1 we wanted to change yeah, well for the definition of indoor air. Mayor Furlong: So go forward with Chapter 7, which was dealing with the escrow funds and go forward with Chapter 18 which dealt with the change of trees. Go forward with Chapter 20 with City Council Meeting - September 24, 2007 regard to signage, but to table, bring back for further discussion, staff wanted to look into some things. Talk to people…with regard to accessory buildings. Kate Aanenson: Right, regarding the Right to Breathe issues. Mayor Furlong: So if that's okay with everybody we'll approve that as a part of that motion to table those portions and include the others as part of our motion. Is that any objections to that? Okay. As well just for clarification, my vote on item (i) will be an abstention. With that if there's nothing else, is there a motion to adopt the consent agenda items (a) through (m) with those items so noted. Councilman Litsey: Motion to approve as so noted. Mayor Furlong: Thank you. Is there a second? Councilman Peterson: Second. Councilman Litsey moved, Councilman Peterson seconded to approve the following consent agenda items pursuant to the City Manager's recommendations: a. Approval of Minutes: -City Council Work Session Minutes dated September 10, 2007 -City Council Verbatim & Summary Minutes dated September 10, 2007 Receive Commission Minutes: -Planning Commission Verbatim & Summary Minutes dated September 4, 2007 -Planning Commission Verbatim & Summary Minutes dated September 18, 2007 -Park and Recreation Commission Verbatim & Summary Minutes dated August 28, 2007 Resolution #2007-56: b. Goers Culvert Project 07-13: Award Contract. stndrd Resolution #2007-57: c. Highcrest Meadows 1, 2, and 3 Additions: Accept Streets and Utilities. Resolution #2007-58: d. 2008 Street Rehabilitation Project 08-01: Award Consultant Contract, Authorize Feasibility Study. e. Approve Joint Powers Agreement with SWCTC for TH 5 Corridor Scoping, Analysis, Preliminary Design and Environmental Screening. f. TH 101 Street Name Change, Project 04-06. g. Neil Klingelhutz, Planning Case 07-16: Request for an Interim Use Permit to Import Approximately 43,250 cubic yards of Fill from the Highway 312 Corridor for Grading on Property Located at 8601 Great Plains Boulevard. 2 City Council Meeting - September 24, 2007 h. Power Systems Building Expansion, 8325 Commerce Drive, Applicant: Power Systems, Planning Case 07-21: Request for Site Plan Approval for a 12,300 Square Foot Expansion to a 27,800 Square Foot Building. i. Audio Visual Equipment: Approve Modification to Capital Improvement Program and (Mayor Furlong abstained from the vote on this item.) Award of Bid. j. Approval of Release of Land from Contract for Private Redevelopment and Assessment nd Agreement; Lot 2, Block 2, Arboretum Business Park 2 Addition; Arboretum III Realty Partners LLP. k. Adoption of Ordinances Amending City Code: Chapter 7, Buildings and Building Chapter 1, General Regulations; Chapter 18, Subdivisions; and Chapter 20, Zoning. Provisions (Definitions) was Tabled. Resolution #2007- 59: l. Lake Riley Woods Channel Project: Approve Plans & Specifications and Authorize Advertising for Bids for Restoration and Stabilization Project. m. Approval of Mayor's Travel to Madison, Mississippi to Participate in Community Forum. All voted in favor and the motion carried unanimously with a vote of 4 to 0. VISITORS PRESENTATIONS: None. LAW ENFORCEMENT/FIRE DEPARTMENT. Mayor Furlong: I was informed before the meeting that Sergeant Anderley was unable to be here this evening due to a personal commitment but nothing has changed from his report. I don't know if anybody has any questions for him that we can work through the city manager. If not, we'll look forward to welcoming Sergeant Anderley at a future meeting. Chief Geske is here though however. Good evening Chief. Chief Greg Geske: Good evening. I was hoping when you mentioned that you're cancelling the th October 8 council meeting, that was because of Fire Prevention Week. …let's say it's because of Fire Prevention. Mayor Furlong: That's fine. Chief Greg Geske: I would like to announce our open house for fire prevention. We have an th open house on Sunday, October 14 from 1:00 to 4:00. We always have plenty of food there. Lots of demonstrations from extrication and cutting cars apart to the dive demonstrations. All the sheriff's department is usually there. The mounted posse with the horse and such. Lots of education. Things from NSP and Xcel Energy and the ever famous fire truck rides are there and we'll have our new truck there featuring this year too for rides. Last month was a fairly unbusy month for us again so that's good to report. I would like to talk a little bit about a call that we 3 City Council Meeting - September 24, 2007 responded to last Saturday here. It was a two car personal injury accident and a lot of times we go to the accidents and we see you know where somebody maybe perished and they might not have because of seat belt use. Had they been using seat belts and this one really showed, it was a head on accident and when we got the page out that the car was also engulfed in flames so, you know in responding to that we don't know if the people got out until we got there and luckily enough everybody had seat belts on. They were deployed. They had small minor injuries. Some seat belt rash and stuff but it really showed how effective seat belts are and air bags and that because it was a head on injury accident and everybody was able to get out of the car, especially before it burst into flames. So I guess if you look for a good ending to that accident, it really showed what seat belts and air bags can do so I just wanted to pass that on. It good to see those results out there in our streets and stuff. And that's about all I have. Mayor Furlong: Okay, thank you. Any questions for the chief at this time? No? Very good, thank you. Chief Greg Geske: See you at the open house. CONSIDER APPEALS OF WETLAND EXEMPTION DETERMINATIONS, LOCATED AT THE SOUTHWEST CORNER OF LYMAN BOULEVARD AND POWERS BOULEVARD, JEFF FOX AND RICHARD DORSEY. Public Present: Name Address Brad Wozney BWSR, 520 Lafayette Road No, St. Paul Jeff Fox 5270 Howard Point Road, Excelsior Rick Dorsey 1551 Lyman Boulevard Kate Aanenson: Thank you Mayor, members of the City Council. This item appeared before nd you on August 22 where you held a public hearing and appealing staff's decision on the Dorsey/Fox wetland exemptions. Just to remind you where they are. This is Lyman Boulevard and Powers Boulevard future extension of Powers Boulevard here. Those two properties, Jeff and Terry Fox and the Fox Family. So the applicant, along with Rick Dorsey provided a booklet th at that meeting summarizing their position of appeal. That booklet was dated on the 24 and that was also accepted as part of the evidence. The City Council held a public hearing and tabled action so we could review the information that we received. The applicant did grant an st extension for October 1. This would be the last meeting before that extension. And they also, council also offered them the opportunity to provide any written arguments. We did receive some but it was prior to, or excuse me, after the packet went out and I believe the council did receive copies of those. In summary, or excuse me, I just want to make sure prior to that, so we did receive all the arguments. This is a summary of the testimony which you have in front of you which includes the minutes, the Findings of Fact and the summary of the staff report itself. Summation of. That's kind of the…points we had before you. So there's really two issues to decide. One, are the exemption standards applied correctly and two, is the interpretation of the 10 year deed recording. Again the city attorney has…that we're going forward with applying the 4 City Council Meeting - September 24, 2007 10 year…exemption from that. So there's two, in summary the two points then are the, whether the crop was annually seeded and the definition of the hay not being considered the grass or… prior to 1991. So therefore we don't believe it was annually seeded. There's obviously a difference of interpretation there. The other is based on the type and the size of that. Again based on the TEP panel review of the staff, that we have determined that it be a Type III with a Type II fringe, over 2 acres in size. Therefore the wetland exemption would not be permitted. So in summary the staff is making the recommendation that the City Council adopt the following motion. The City Council uphold the staff decision on all five exemptions and affirms the Findings of Fact of the Technical Panel evaluation with the exception from the 10 year deed restriction is no longer required. So I'd be happy to answer any questions that you may have. Mayor Furlong: Thank you. Are there any questions for staff at this point? No? Okay. Why don't we, we had a chance to receive public comment last week, or excuse me at the prior meeting and some additional information. I guess maybe to start with just, let's clarify any questions that we have of either the applicant or staff to try to make sure that we get the information we need as well. Anybody have any questions they wanted to ask of staff or the applicants? Or points of clarification. Councilman Peterson: Mr. Mayor I do. I'm trying to go back to my 827, part of what I'm struggling with is there's so many moving parts to this thing and this is one negative of having a PC versus paper is that my thumb gets sore from spinning here. But one of the things that I had on, and it was really more for the applicant, or applicants in this case. Is if you look at Basin 1. And one of the, I'm trying to ascertain why in Basin 1, and this is probably for Mr. Fox more than anything else. From their Bonestroo information, they're saying that that main standing water area, I think it's Type II. This is by memory now because I still haven't found it and the outlying area is Type I. On the Dorsey side of that picture, that was annually seeded with crop and I'm trying to figure out why the same type of wetland, why wasn't the Fox side annually seeded or done something with. So that's one question and staff you can't answer that so probably the applicant. And maybe I'll pause and have them come up. Is that appropriate Mr. Mayor? Mayor Furlong: That's fine. Kate Aanenson: I think the question was to Jeff wasn't it? Councilman Peterson: Yeah probably. You understand the question Jeff? Jeff Fox: There was, in the basin, our Type I basin in the earlier years it was planted but as the ditch, the culvert got clogged and the area got clogged. Councilman Peterson: Can you point that out and just kind of. Let me follow this for a second. The DNR, the Bonestroo drawing of the 3.2 acres and the .8, let's work off of that and that's what I was trying to find in here. Mayor Furlong: 289, but the pdf 27. I think it's a Bonestroo picture. 5 City Council Meeting - September 24, 2007 Councilman Peterson: No. Jeff Fox: That one? Councilman Peterson: Yes, I said no to the mayor. Mayor Furlong: That's your only time. You get one a meeting. Councilman Peterson: I can't tell. That's the one with the lines around it? Yeah that's it. Rick Dorsey: There's another one. This is… Councilman Peterson: The drawings are not… Rick Dorsey: I think I can answer your question though. Kate Aanenson: Yeah, can you? Rick Dorsey: Yeah. My name's Rick Dorsey, 1551 Lyman Boulevard. What you're looking at is the information being provided to you dealing with two different time periods number one. The Bonestroo summary for mine because it's Exemption 1(a) deals with the status prior to 1991. The application for the Fox parcel is 1(d) Exemption which is dealing with after 1991. So he's dealing present day so that's what the Bonestroo presentation and the application is his based on current situation. He didn't farm it or didn't apply for the application as having farmed it prior to 1991 because he didn't own the property. Doesn't know the history of it and so he applied for it as a 1(d) Exemption. Again the difference, mine prior to 1991 had already been drain tiled and excavated. His had not. Outside of the ditch. Councilman Peterson: Okay. Rick Dorsey: However I can show you a photo that gives you that time period because I had also farmed that property myself and we farmed it, you can see right through the ditches. That picture taken in 1983. Councilwoman Tjornhom: And that's with it being drain tiled? Rick Dorsey: This is the Fox parcel here. This is a ditch across and then provided, originally the property was owned by the Jeurissen family. John and Alvin Jeurissen and his family property sold so what is now the Fox property was I believe a brother of the Jeurissen on my property and my property drain tiled on his brother's property or cousin, however the relationship was. They ditched across the property to drain the water does come in across what is on my property. That was back in the 1960's that that happened. Councilman Peterson: On what page did you think it was I'm looking for? 6 City Council Meeting - September 24, 2007 Mayor Furlong: 289. On the… I believe it's Bonestroo. This is in the electronic version of our 827 packet. Councilman Peterson: I've got it. I was looking at this week's. Mayor Furlong: So Mr. Dorsey, that picture there, help us understand how that relates to the aerial views in the pictures then. What are we looking at? Rick Dorsey: This is on the Fox property. So from the standpoint of this area, this area in here is where that picture is looking at. From this direction. It's a little, as you can see right here, a little clump of trees that would be this house right here. Actually a little shack. Mayor Furlong: So that would be. What direction is that picture facing? Rick Dorsey: Looking to the west. On the east side of the Fox property. Again on the Fox property we're not looking at the historical time period. Just so you know that. But with, to answer his question why are we looking at it differently and why currently did the Bonestroo discussion show his as, I believe is the question, the type of typing that was there in the application. Mayor Furlong: Councilman Peterson? Councilman Peterson: Well those are my questions. I've got to process that a little bit. Mayor Furlong: Question for staff on the, just to clarify. The reason that, and the issues we're looking at of the 5 applied for, just to clarify versus Basin 1 which includes both one on the Dorsey property and the Fox request. And the second is Basin 3 which is up along the northwestern corner of the Dorsey property, is that correct? Those are the two under appeal? Kate Aanenson: Yes, and if you look on the summary of your…go through which ones we agreed to… Mayor Furlong: So Basin 2 and 4 were agreed to? Kate Aanenson: Yes. Mayor Furlong: And Basin 2's in the middle. Kate Aanenson: This one here. Mayor Furlong: Okay. Kate Aanenson: So really again simply, since then we've gone back to the issues, are the exemption standards applied. Being applied correctly and that would be the interpretation of the annual seeding. And then the type of wetland. 7 City Council Meeting - September 24, 2007 Mayor Furlong: And let's talk for a minute about wetland typing because there seems to be a disagreement between the Bonestroo, and now again maybe that's current versus the historical but can you give us a little bit of information on how it was typed. What the method that was used. Kate Aanenson: Sure, because I didn't walk the site. I'd leave it up to somebody else, either the attorney or to someone from, maybe Brad who was on the TEP panel to address that. If that's okay. Roger Knutson: Mayor if I could just make a quick comment on the Fox basin I'll call it. If you look at the proposed finding 13, the essential finding there is it's more than 2 acres in size. The question whether you want to call it Type II, Type III, what have you, it's the size. Mayor Furlong: And on that issue is it the, Mr. Knutson, is the size of the wetland irregardless of the size of wetland on the parcel? Roger Knutson: That's correct mayor. So it's the size of the basin, not how much of it you own. Mayor Furlong: Okay, so the fact that the property line goes down the middle of this. Roger Knutson: Doesn't matter. Councilwoman Tjornhom: A wetland doesn't have a boundary then is what you're saying? Roger Knutson: Well it's delineated but the basin, the size of it isn't based on how much of it's on your property. Rick Dorsey: I'd like to respond to that. I believe it says it's 2 acres of Type II wetlands. Any amount of Type I wetland for Exemption 1(d). Roger Knutson: The finding is it's over 2 acres. Rick Dorsey: In total, and what I'm saying is, Exemption 1(d) is acceptable if there, for any amount of Type I wetland and up to 2 acres of Type II. Mayor Furlong: The staff interpretation was that it was a Type III with a fringe of Type II, is that correct? Kate Aanenson: That's correct. Mayor Furlong: What was that, Finding 13? Kate Aanenson: That's off of the cover of the staff report too. 8 City Council Meeting - September 24, 2007 Mayor Furlong: So I guess, and maybe I think we have a member of the TEP committee here. Maybe you could inform us how the typing occurred. How the determination of a Type III and a Type II occurs. Councilwoman Tjornhom: Yes, and how many people were involved in the process. People involved in that process of typing it. Brad Wozney: Yeah, I wasn't actually out on site. However we had former employee Lori and also Greg Gaschek of the Soil and Water Conservation District out on site and confirm the type and I base my recommendation off of their site inspection. Councilwoman Tjornhom: Does the County, did they have like a general map of all the wetlands and are they, do they have a type for every wetland already? Brad Wozney: Not that I'm aware of. But I think the city has an inventory. Kate Aanenson: Yeah, but they have to be field verified. It's a starting point. You may find one that wasn't even on the map, correct. Yeah. Mayor Furlong: Is the typing that was done, the III and the II, was that typing done based upon what they viewed at the time of the inspection? Brad Wozney: Yes. Mayor Furlong: Okay, and so that is different than what the Bonestroo engineer viewed at the time. Because I think their report showed a Type II and Type I and as Mr. Dorsey said, that was… Brad Wozney: Well I think what they're saying is it's the same as it was in '91 when the air photos are reviewed. The 10 years prior to the… Mayor Furlong: What I heard Mr. Dorsey say up or down or back to back, that the Bonestroo report was done as a current point in time. For the typing of Basin 1. Rick Dorsey: For the Fox application, it was done based on current time and they looked at, when they looked at the status of the whole basin, they had to look at the whole thing and they said it was all Type I with the exception of the pond area on my property which was identified as Type II, and just because there's water there does not mean it's a Type III. It was a man made pond, number one so what they said is it never could have been a Type III wetland in their professional perspective. Mayor Furlong: Right. I'm just trying to clarify the different here that at the same, virtually or approximately the same time period the committee determined that it was a Type III and Type II and your engineer determined a Type II and a Type I. 9 City Council Meeting - September 24, 2007 Rick Dorsey: Different times of the year, at least the inspection done by the TEP panel was in March right after we had the big snowfall that melted in a week and the whole area was flooded because the ground is frozen. But in any case, as I said the typing deals with more than just water being there. There's no vegetation growing inside the pond area. It is, it was excavated and it bounces as far as the water level goes from, down 5 feet from where it was last spring right now. Mayor Furlong: Okay. Roger Knutson: Mayor, just to bring it back to I believe the point, the applicant, the application was for a 1(d) Exemption so the question before you, do they meet the standards of a 1(d) exemption. Mayor Furlong: Could you clarify what those standards are? Roger Knutson: I'll read them to you quickly. The 1(d), a replacement plan for wetlands is not required for activities in a type I wetland on ag land except for bottomland hardwood type I wetlands and activities in a type II or type VI wetland that is less than 2 acres in size. That is what, that is what the application is filed with the city. Mayor Furlong: And so the, as I understand it based upon Findings of Fact number 13, if I can find that quickly. This deals with the size of the acreage. In fact there was a Type III with Type II… Rick Dorsey: I believe that's defined, I was looking for it here. Mayor Furlong: Are you answering a question Mr. Dorsey? Rick Dorsey: Well just a question that you asked when the typing of the wetland was done and the TEP panel responded to our attorney's response saying that they did not identify the typing based on their inspection. They utilized aerial photos to look at that map. Mayor Furlong: Any other questions at this point? Rick Dorsey: If you want to know where that was, I can tell you exactly what it said. It was on number 8. It says, I can read it to you. The exhibit was in there. It says dealing with the Fox property, it says the TEP employees, the best professional judgment, coming through it says. Well I can't find it. Mayor Furlong: Okay. If no other questions, thoughts or comments in regard to this. We've got the issue before us really dealing with the Basin 1 and Basin 3. Basin 1 covers both the, or goes across the property line between the Fox and Dorsey property basin. 3 is on the Dorsey property. The question before us is, were the exemption standards applied correctly and with regard to interpretation of the 10 year deed recording correct. I think with regard to item 2, based on information provided by our city attorney, the 10 year deed restrictions with regard to Basin 2 or Basin 4 would be appropriately lifted. Or not supported because of the change. Not because of 10 City Council Meeting - September 24, 2007 anything that the TEP panel did right or wrong but because of the change in the law subsequent to our interpretation. Is that correct Mr. Knutson? Roger Knutson: That's my opinion Mayor. Mayor Furlong: Okay, thank you. So with that the question is with regard to the exemption standards for Basin 1 and Basin 3. Whether or not the panel applied the standards correctly. Thoughts. Comments. Councilman Litsey: Well I would just say that I think we've had ample opportunity to hear from the public, had a public hearing to hear input. Staff's spent a considerable amount of time on this and I guess I'm prepared to support staff's recommendation. Makes sense to me. We've heard public comment. We've heard staff's comments and I'm comfortable with what staff's recommending. Mayor Furlong: Okay. Other thoughts? Councilwoman Tjornhom. Councilwoman Tjornhom: I'm kind of leaning towards Councilman Litsey's opinion also. I think staff put in time. Mr. Dorsey and Fox put time in it. It's hard for me to sit here and determine this issue. Really I have to put my faith in staff and what they've done is my job you know best, it's my job I guess is to interpret what staff says and so I also am ready to move forward and agree with staff. Mayor Furlong: Councilman Peterson. Councilman Peterson: This is interesting for a lot of different reasons and I think we've all struggled with it because it has been a moving target. As it relates to Basin 3, I would concur with my fellow council people and say that, that that should remain as staff is presenting. What I'm struggling with is on Basin 1, and we clearly have different perspectives…and there are different judgments being used and we're talking about judgments based upon timing of a visit. We're talking about quality of aerials used and you know there is no clear cut quantitative way to make this decision. It's very much a qualitative decision. So then if I look at Basin 1 and if part of the pre-requisite of the exemption is that it needs to be re-seeded every year, philosophically you know you don't re-seed, as I mentioned before, alfalfa fields every year. So now I'm interpreting what the legislature tried to do. I think they made an error by saying that personally. The only time you re-seed alfalfa, being, growing up on a farm, still having a farm, is when it burns out or when it floods out, you don't re-seed. It's almost impossible to re-seed an alfalfa field just because of the density of the alfalfa. And knowing that most farmers want to plant absolutely as much as they can of their field, you know I would look at Basin 1, what staff is considering Type II, I would probably lean towards Type I knowing that whether it was alfalfa or otherwise, could be or should be, or could be at least planted because I've gotten my tires stuck close to wet farmland more times than my father would like me to do. So I think there's an innate you know need to plant and farm as much as possible as you can. So what I'm struggling with is you know my, I think it's going to come down to discretion. I'd say that what is now a Type III in Basin 1 where the pond is, I'm guessing and speculating and probably lean towards saying that that should remain a Manage 3 area and the area around it is not, not a Manage 2 but 11 City Council Meeting - September 24, 2007 a Manage 1 or perhaps not a wetland at all. So I don't know if council can even go somewhere, can we make a recommendation to go somewhere inbetween? Or is it a linear decision that we have to make? We either have to accept or reject the decision that's in front of us or can we further interpret and make our recommendation? You understand the question? Roger Knutson: Mayor, members of the council. First, you're not making a recommendation as such. You're making a decision although that decision can be appealed by the Board of Soil and Water Resources. You're making a decision. Yes, you have the power to make, to draw a line somewhere different if that's where you think it belongs. Councilman Peterson: I mean to that end, and I go back to that, what Bonestroo did and you've got like 1.2 acres around what is now the pond that I would say leave that as a Type III and the remainder would be a Type I. Again that's really based upon the rationale that I share about what I believe is the motivating factors for most farmers that would plant everything they possibly can. Roger Knutson: Mayor again, since you're making a decision. You have to draw a line. If you're going to say part of it is exempt, part of it is not, you have to specify so we can find in the ground… Councilman Peterson: Well the picture I'm looking at has got a line drawn. Roger Knutson: Okay. Councilman Peterson: And that is on page 289 of 827, the appeal meeting. The finding is 1.2 acres around that pond. That I don't think is exempt and I think the remainder would be exempt would be my personal opinion. Mayor Furlong: Any thoughts or comments on Councilman Peterson's? Councilman Litsey: Well deferring to staff because this is a highly technical issue. There's some, obviously subject to some interpretation and I trust staff has done, acted prudent in the situation. Done their homework and there is an appeals process to our decision so if in fact the applicant feels strongly they can bring it to another body to take a look at it, but I personally don't feel comfortable making any, or actually any changes at this point. I would just as soon go with what the staff recommended. Councilwoman Tjornhom: Yeah, I can only to that, while I am certainly sympathetic to the Dorsey's and Fox's, and I understand where Craig is coming from, my job tonight is to decide if the standards were applied correctly to this judgment and I can't, I personally can't start renaming wetlands and deciding what classification they are and when they were one and when they weren't one. I'm not qualified to do that. All I, you know I'm here tonight to make sure that the standards are applied correctly and the judgment itself. That's about as far as I feel comfortable going. 12 City Council Meeting - September 24, 2007 Mayor Furlong: Thank you. Councilman Peterson raises some good issues and some that I've been looking at as well because earlier tonight we talked about the typing and to that end I think the, my thoughts are, somebody said there's a lot of information here and there's a lot of information and we're dealing with different time periods. We're dealing with state statute and different sections of the statutes and to the extent our objective here as the appeals process is to examine whether or not the standards were applied correctly. Back to Mr. Peterson's point, the question is with regard to an interpretation, if the legislature wanted to include the harvesting along with the seeding. My thought is that perhaps they might have but what they ended up saying was the annual seeding and crop rotation. As I look at what the panel did, my sense is and my belief is that they applied proper due diligence. I think we had city, county and state experts there. There clearly is disagreement with the engineering experts hired by the applicant. That's not unusual that you would have experts disagreeing on statements of fact and issues of wetlands and over different time periods which are somewhat in the not, in the distant past. Not recent past. So I guess as I look at it, you know it was suggested that alfalfa annual harvesting qualified because that was part of the definition for one of the types of uses, haying I believe or Mr. Dorsey brought that up. I may have gotten that wrong but the annual seeding and crop rotation or the annual harvesting met a definition. What I don't know is why the legislature then didn't use that definition as opposed to using the words that they did which was the annual seeding and crop rotation. I don't know that. What I can look at or what I'm looking at, because I think if they had there would be more validity to the applicant's appeal as well as to what's been said out here. I'm looking at, did the task force apply correctly? I think they focused on the words that were in the statute. I can't fault them for that. I think they applied proper due diligence and experts and so there may never be agreement on the application here but in terms of what staff did, I find myself believing that they applied the proper care and due diligence so. From what I've seen and all the information provided, I'm supportive of the staff and what they did and they applied correctly. Is it the right or wrong answer? I think that is still open to interpretation and views but from that standpoint I think, I don't think that there's any reason that they didn't apply the proper due diligence or have the appropriate expertise on that panel to proceed. So I understand your thought process and the basis to move out of it, we'd have to move out of the statute and the panel was asked to apply the statute so I think from that standpoint I'm inclined to support what they did as correct so. Other thoughts or comments on that? Councilman Peterson: No, I mean I agree, I absolutely agree with all 3 of you but I think staff has interpreted the statute as it relates to the, to the crop rotation accurately. I just happen to think that that's you know a flaw in legislation that you know if I have an opportunity to interpret it and correct it and that's why I share what I did. Mayor Furlong: No, understand. Fair enough. Thank you. With that, is there any other discussion? If not there is a motion on page 2 of the staff report and Findings of Facts. Is there a motion to adopt that with the Findings of Fact or is there a different motion? Councilwoman Tjornhom: I make a motion that we adopt the staff report with Findings of Fact. I don't have it in front of me. 13 City Council Meeting - September 24, 2007 Mayor Furlong: Okay. It's on page 259 of the pdf, if you want to put that in. The motion reads the City Council upholds staff's decision on all five exemptions and affirms the Findings of Fact and Technical Evaluation Panel with the exception of the 10 year deed restriction if no longer required. Roger Knutson: And adopt the Findings of Fact presented in your packet. Mayor Furlong: Thank you. Rick Dorsey: Can I…? The information you presented as well as our record… Mayor Furlong: I believe that's all part of the record. Roger Knutson: Yes. Mayor Furlong: So is that your motion? Councilwoman Tjornhom: Yes. Mayor Furlong: Thank you. Is there a second? Councilman Litsey: Second. Mayor Furlong: Made and seconded. Any discussion on the motion? Councilwoman Tjornhom moved, Councilman Litsey seconded that the City Council upholds staff's decision on all five (5) exemptions, and affirms the Findings of the Technical Evaluation Panel (TEP) with the exception that the 10 year deed restriction is no longer required. All voted in favor, except Councilman Peterson who opposed, and the motion carried with a vote of 3 to 1. Mayor Furlong: Okay, thank you everyone. PAPEDIS VARIANCE, 2101 PINEHURST DRIVE, APPLICANT: SOUTHVIEW DESIGN, PLANNING CASE 07-19: REQUEST FOR VARIANCE TO HARD SURFACE COVERAGE. Public Present: Name Address Chris Moehrl 7699 Anagram Drive, Eden Prairie th Tim Johnson 1875 E. 50 Street, Inver Grove Heights Brian Wisdorf 2997 Hilltop Drive, Chaska Ojars Papedis 2101 Pinehurst Drive Jackie Holien 2101 Pinehurst Drive 14 City Council Meeting - September 24, 2007 Bob Generous: Thank you Mayor, council members. I handed out tonight the revision to the staff report. Since the project originally came in, the original review for 7.4% hard surface coverage. That included the deck. We've now interpreted to just have, the deck had weep holes, that it was not impervious surface and can allow water through so we reduced is to 5.3%. And then recently staff has been discussing the idea of eliminating retaining walls from the hard surface calculation because they really generally tend to improve drainage on a site and so we're now removing that and so now we're down to 3.3% variance. Mayor Furlong: I'm sorry I was just looking for my update. Can you, how did we get from the 5.3 to the 3.3? Bob Generous: Well from 7.4 to the 5.3 was removing the deck which has the weep holes in them. Mayor Furlong: Okay, thank you. Bob Generous: And the manufacturer's say they work. Sometimes it isn't. And then going to 3.3 when we removed retaining walls. Mayor Furlong: So there are no retaining walls left? Bob Generous: Well there are retaining walls but we don't use them as calculating for hard surface coverage because generally they're designed to improve site drainage. They'll hold water back so that it has time to percolate. Generally they create level areas for water to sit on rather than the slopes that allow water to rush down them. So the city as part of our review process has eliminated 787 square feet of hard surface coverage from their request. This property is located within the Pinehurst development which is north of Lake Lucy Road and west of Galpin Boulevard. As originally platted there were 43 lots. As part of our review of that development there's a concern that the house sizes that were going in, were proposed for the development would infringe upon the hard surface coverage. Lennar Homes came in and then replatted the subdivision eliminating 2 of the lots and creating slightly larger lots. They were on, in this location and also on the north. Again because they were aware that as part of their development they had a specific home price that they were looking at and they wanted to allow for some expansion on the site for the individual property owners. As part of the building application for this property the applicant came in with their home, driveway, front walk, and they were at 23.2%. They had an additional 345 square feet for the homeowner to expand into the future. One day our building inspector was out looking at the neighborhood and he noticed that there were improvements going on this site. He then went and advised the contractor that for the type of improvements they were proposing, the pavers and the fire pit and all of that, and retaining walls, they needed to come in for a zoning permit application, which is something the City adopted last year to try to forestall or void people having to come in for after the fact variances for such things as setback or site coverage. When they provided, put their information together they discovered that they were over the 25% hard surface coverage so instead of applying for the zoning permit they went immediately to an application for a variance to the hard surface coverage. All along the development's been aware that hard surface coverage was an issue as 15 City Council Meeting - September 24, 2007 part of this project. They replatted to provide for larger areas on the lot. When this came in for building permit there was an expansion opportunity for the homeowner. They just went over the maximum that they were allowed and now they're coming in requesting a variance. We believe that they do have a reasonable opportunity to use this property without the excessive hard surface coverage on the site. Staff is recommending denial of the variance request. This item went to th the Planning Commission on September 4. They voted 5 to 1 to deny the variance and so the applicant is appealing that decision to City Council. I would note that we're recommending denial of the variance and also we're requesting that you modify the Findings of Fact attached to your report. Item 4(a) and add the following two sentences. The proposed use is not a reasonable use of the property. The extra 3 1/2% impervious surface coverage will contribute to storm water quantity and quality problems. With that I'd be happy any questions. Mayor Furlong: Questions for staff. Councilwoman Tjornhom: This isn't really a question regarding this item but getting back to the retaining walls. Are we going to, is this going to be a standard practice from now on? Or has it been? Mayor Furlong: Yeah, what have we done historically? Kate Aanenson: We hadn't included them in the past recently. Not that we've passed with any variances with these but I believe that the engineering department wanted to review those as a part of the impervious surface coverage. Internally we've had some discussions on whether or not that made sense or not. Especially in the circumstance where you have to put a retaining wall based on grading. Those sort of things. Sometimes they're decorative. Sometimes they're put in place, if you wanted to add a third bay garage or need to hold something up, but lots of times they're put in place in the development itself for rear yard to enjoy a flatter area so looking at that, based on the 5 we felt, it seemed kind of punitive and they were in place already, or needed to be put in place to enjoy the back yard, not to include those. Mayor Furlong: So clarification. Kate Aanenson: Our ordinance doesn't specify them for the interpretation. So somebody made that interpretation. Mayor Furlong: Okay, the ordinance talks about impervious surfaces. Anything that impedes the flow of storm water. Kate Aanenson: Right. So the interpretation was that it doesn't. That those do not impede. It's not the same as a patio or a pavers, those sort of things. Mayor Furlong: Councilwoman Tjornhom, other questions? My question for staff dealt with retaining walls because I believe in the past we've seen those as part of the impervious surface calculation. But you said these are already in place? 16 City Council Meeting - September 24, 2007 Kate Aanenson: Correct. If you look under definition it does say any hard coverage. It's one of those things when somebody comes in, it seems rather onerous, especially in circumstances where they're required to put them in in order to make the, facilitate the activity that they're trying to do. Whether it's a sport court or extra garage, and normally it's that extra half a percent that's getting you under the circumstance, was it a half a percent wasn't it or 1%? Mayor Furlong: These are 2% over? Bob Generous: …however again from this site's perspective, the use of the retaining wall actually slows down water. Provided greater opportunity to percolate into the soil. And that's generally what we see…where water's sheeting off the property. Councilman Litsey: It slows it down? Helps it percolate in? Bob Generous: Yes. Provides a greater opportunity to do that. Councilman Litsey: Right, okay. Todd Gerhardt: Mayor, may I ask? This is something I think we're going to have to go back and do maybe a white paper on or some research on and come back with some different scenarios for you to take a look at this and somehow get it incorporated into our ordinances and how we're going to view retaining walls and also maybe take a look and see what other communities do but in the past I think we've looked at them as impervious. In this situation it looks like it may be improving the situation but I think we need to sit down as staff to do a little bit more research and give you a definitive read on how we're going to view retaining walls in the future. Mayor Furlong: Okay. Okay, thank you. Any other questions for staff? Is this, this development was approved, the plat was approved how long ago? Bob Generous: July of 2006. Mayor Furlong: 2006. So this is the first of a few coming through? Kate Aanenson: There's another one right behind it. Mayor Furlong: How, you said in your presentation, the house site itself allowing with the driveway and sidewalks was about 23%. Bob Generous: Correct. Mayor Furlong: A little bit more than 23% hard surface. Are we anticipating similar types of housing sizes on lots in this neighborhood? Bob Generous: Yes. 17 City Council Meeting - September 24, 2007 Mayor Furlong: Thank you. Okay, any other questions for staff? Is the applicant here? Representative. Good evening. Tim Johnson: Good evening. I am Tim Johnson with Southview Design. We are the contractor that's representing the owner at 2101 Pinehurst Drive. The plan that you see in front of you, just a brief history. When we came into the Planning Commission a few weeks back, we cooperated with the city and the building officials and we stopped the actual construction of the work on the findings that we found out that we were unaware of. Currently the retaining wall, this fire pit, patio application, the patio here, as well as the front walkway is currently in. We have had plans of adding another patio space but we decided not to include that at this time. So we've been working with the City very closely and then I presented now this plan to the Planning Commission as well as a drainage infiltration system. At that time we were instructed that you know they were very interested in hearing more about this infiltration system and how it can actually improve the runoff from the property, but they weren't able to make a decision at the time for, an educated decision on their part so since then we've been working with an engineer who will speak on our behalf tonight, as well as a few other individuals. But I would actually like to turn the rest of our comments over to the Brian Wisdorf who is representing the owner of 2101 Pinehurst. Brian Wisdorf: Good evening council. My name is Brian Wisdorf. I'm with the firm Severson, Sheldon, Dougherty and Molenda out of Apple Valley. I've been retained by Ojars Papedis, the actual owner of the property in question. In hearing the staff's comments tonight, one thing that I would like to point out about the fact that it's Ojars Papedis that is basically making the application for the variance and not the developer. The developer's issues with the city, whatever they might be, should not be, in my mind, considered as part of what knowledge or requirements that, for part of the evaluation of my client's request for a variance. A couple of things that I wanted to touch on. A variance gives an applicant permission to depart from the literal enforcement of the zoning ordinance. Strict enforcement of this 25% hardship surface requirement would create an undue hardship with regards to his reasonable use, and the reason I'm addressing this now, even though they have addressed the retaining wall, it seems like there may be some consideration of still incorporating that in the calculation. I would take the position on behalf of my client that there is an undue hardship. As the Planning Commission has noted that the topography of my client's property slopes significantly in the rear yard. 75, or excuse me, 17.3 feet drop in a matter of 70 feet according to their report. This change in elevation begins at the rear of the home and without the use of retaining walls to build up the back yard, besides the impact it will create on drainage, it also allows my client to have reasonable use of his property. The Planning Commission had recommended denial based upon the staff report, set forth in the original staff report where they were looking at a 7.4% overage on the hard surface coverage. They have now changed that based upon their calculations to 3.3. Have no reason to dispute that recalculation at this point. I do believe that that recalculation was appropriate. However, this helps address some of the hardship but it also establishes how fluid the ordinance is, and I believe that the council has acknowledged that to a certain extent. This same discretion should be considered in applying for determination of whether a variance should be provided for the remaining 3.3%. When it's taken into consideration…the goal of what the ordinance is, which I believe is to address storm water quality and quantity. The other issue that the staff had brought up is their concern with the precedence that this would create if you grant 18 City Council Meeting - September 24, 2007 my client a variance in this case. I think that can be, what is going to be presented to you by Chris Moehrl of Westwood Professional Services is something that would not create a precedent that went against the underlying policy of the ordinance. When applying the City Council's discretion which the staff had acknowledged gave you relatively high level of discretion in providing and allowing a variance, is that the hard surface, hard surface coverage requirement is typically established to preserve this storm water quality and quantity. The engineer that has been retained at my client's expense has went through, went out and viewed the property. Came up with a system to put in place on the property which would not only address the 3.3%, but bring the amount or the percentage of actual affected runoff from the hard surface down to below 25%. He can go into greater detail as to how this system would be implemented and how he came up with the numbers he came up with. The only precedence that this variance would create is that when it is a topographical issue as there is in this case, would create an undue hardship. A homeowner can have an engineer create a surface water runoff plan that will reduce the surface runoff from the property to that which would be expected from a property with 25% hard surface coverage or less. And I'll let Mr. Moehrl go into greater detail as to exactly what kind of system he is talking about. Kate Aanenson: Mayor can I just address a couple things really quick about the interpretation? If that's okay? Regarding percentage. We started off with 7.4% variance. And in good faith, just so it doesn't appear like we're trying to change our whole position on this, in good faith we took the interpretation after a lot of contentious negotiations to interpret the patio as having a space. And that was very difficult conversations to finally get to the 5.3%. As far as the interpretation of the retaining wall, that could be something you can interpret based on topography to grant a portion of that for a variance to give that additional 2% to make that, to make reasonable use of the property if you felt inclined. As far as the additional amount of pavers we saw no relationship to that based on the topography or the layout of the property itself. So we weren't trying to go down this slippery slope. We were trying to work with the applicant and what we felt were some pretty contentious and onerous conversations. So I don't want you to think that we were just throwing it in and kind of making this, now we're going to end up at zero tonight kind of discussion. So I wanted to make sure that was clear what we were trying to accomplish is trying to find some reasonable based on their interpretation of the spacing of the boards on the deck. And then our interpretation of some reasonable use, if you wanted to make that a rational basis for your variance. Of the retaining walls. Mayor Furlong: Okay. Brian Wisdorf: And just so we're clear, that really wasn’t my contention of, even though it may have came across that way. My only point was, that the fact that the calculation seems somewhat fluid, it is my belief that the court or the council should keep in mind that fluidness in determining whether or not a variance should be granted given their broad discretion and the fact that what our client, my client is proposing actually goes to the intent of what the ordinances are put in place to address. Thank you. Chris Moehrl: Mayor, council members. My name is Chris Moehrl with Westwood Professional Services, and actually the original engineer on the Pinehurst project so I've got some history with this job. Tim Johnson had given me a call and kind of explained the situation on the lot and 19 City Council Meeting - September 24, 2007 wanted to see if there were some different storm water techniques we can implement to basically address the overage on the impervious area, seeing that the intent of the code of the 25% is to maintain drainage so you're not overwhelming downstream facilities and ponds. Our first approach to the site, what we wanted to do is first of all mimic what a typical lot would be with a 25% coverage. And then in that approach we calculate the runoff from the additional impervious area and then we calculate that same runoff if it were sod. And that was kind of our first step and what we wanted to do on this project is be very conservative so instead of taking that difference, we actually went to the level of infiltrating 100% of the roof drainage that exceeds that 25% and we added in an additional, oh I think an additional 100 square feet and again this was all before the change with the retaining walls so the credit in the retaining walls is not taken into account in the calculations on the…and I'll try not to make this too technical. So in putting together the whole infiltration concept again what we're trying to do is maintain the downstream storm water runoff to what it would exist with the 25% coverage building. Part of that, and if we can, can you zoom in on this a little bit? So this detail right here is basically the underground infiltration well that we're proposing. Basically what that does is as the additional runoff comes from a roof, it stores that water underground in a fairly course material. What that does is basically allow that water time to drain into the in place soils. Over time. As you know one of the questions that might come up, Chanhassen largely clay soils. Does infiltration make sense? To give you an idea, the initial guidelines we used are from Carver County. Based on soil type on the site, they use .23 inches per hour. Typical sand sites you might get infiltration rates in the range of 5 to 10 inches, just to give you a feel for what we're using. Carver County also bases their design on the average storm event in the metro area of .34 inches, which is also based on that storm occurring every 3 days. So the combination of those two numbers, you come up with your infiltration rate. As opposed to using average storm event on this project we actually designed this for the 100 year storm event so again what we wanted to be is very conservative. We want to make sure that the systems work and really meet the intent of the code. In putting together that number, if you back calculate that, again 100 year event we use .23 inches. If you run the average storm event through that, you're actually having an infiltration rate of .013 inches per hour. Again just to give you an idea of how conservative this is. I also wanted to mention too, in our first approach where we were just going to mimic the 25% coverage lot, when we went to the more conservative approach it about doubled the footprint of the infiltration runoff. With that said again, just another thing to give you an idea of that .013 inches per hour, that's about 17 times more conservative than Carver County based on that average storm event. And I know staff has issues with maintenance. How do we maintain these things? Definitely you know it's for consideration when reviewing these. Not really defined a very conservative approach to the system. We've also proposed a monitoring well so you can easily go out and just stick a stick in that well to determine what the water levels are in the system. We also have emergency overflow pipes so you can physically see hey, there's something clogged up. It's easy to see that water coming out of the system and that can be addressed. The other issue with maintenance, how do we, or how does the City enforce that? How do they make that happen? What kind of assurances can you get from that? My thought is that you could record a legal document that would give the city legal right to enforce that, which would make the homeowner maintain the system as it is in place, which would also go with the lots so if this current homeowner were to sell the lot, that document would reside with the lot and not with the owner, so the next person that comes to purchase the property, that document would show up during a title search and they 20 City Council Meeting - September 24, 2007 would be aware of it. With that, I can open it up to any questions that you guys might have or concerns that the staff might have. Technical questions. Mayor Furlong: Any questions for Mr. Moehrl? Thoughts? Okay. How about, thank you. How about Mr.? Todd Gerhardt: Mayor, I have a question. Have you used this system anyplace else in the Twin Cities? Chris Moehrl: You know I have not personally. Typically what we've seen in Carver County we're doing large scale infiltration basins and then we'll plant those with vegetation. I see those as being a bigger maintenance problem. You've got to maintain the vegetation which is a big part of that. Weed it out. You know in my mind they take probably 2 to 5 years of some care to really get the vegetation established as it needs to be. I haven't personally done any of these underground, smaller scale infiltration systems but really when you're talking this kind of treatment, in my mind they're more effective if they're based on smaller drainage areas. So if you have one large infiltration basin that maybe requires a lot of maintenance. In lieu of that you could propose kind of a lot treatment basis. You know more smaller treatment systems and I think maintenance with those is a lot lower and the chances of those systems failing are lower too. Plus we also have an underground system so you're not dealing with a lot of vegetation. A lot of unknowns on you know what is it going to take to get that vegetation going. It's based on really volume and geometry, well defined… Todd Gerhardt: Have you thought about the freeze thaw cycle in Minnesota? If this froze over. Chris Moehrl: Freeze thaw on this, what we've done here is basically the bottom, the bottom of the basin, to give you an idea is about 4 1/2, 5 feet in the ground, so we're getting down below that frost depth. Obviously if you had a really cold winter, it's quite possible that that depth is going to go down here. Might move the rock around a little bit. I don't see that as a big issue, especially granted that most of your runoff doesn't occur in the middle of winter when you're going to have your colder temperatures. You know if we were proposing something that was maybe 2-3 feet in the ground I'd be more concerned with it. But we're getting a little bit deeper than that. Typically footings on a house, you're going to be down in the neighborhood of 4 feet to do a lot of those footings. Watermain which is probably the other extreme, you're watermain is typically underneath the street. That's plowed and most of the cold to get down in the ground further, those type of things are usually 7 1/2 feet in the ground so. At 5 1/2 feet you know I think we're in the ballpark. Todd Gerhardt: That's all I had Mayor. Mayor Furlong: Thank you. Any other questions at this point? Councilman Litsey: I just had a quick question on the ordinance. It doesn't allow for this type credit though does it? Kate Aanenson: It hasn't… 21 City Council Meeting - September 24, 2007 Councilman Litsey: Yeah I know we've had discussions about some of these applications and how they might be beneficial and how we might apply them as part of the ordinance but as the ordinance currently exists, that is not in there. Kate Aanenson: That's correct. Councilman Litsey: Okay so, I applaud your efforts to try to help with the situation but the bottom line is, it's not in the ordinance at the present time and therefore in my mind you would have to stay within the ordinance. And, well I'll go on later but I'll leave it at that. Mayor Furlong: Okay. Any other questions? Councilwoman Tjornhom, did you have a question for the applicant or for their attorney? Councilwoman Tjornhom: I don't, I think a way back when we were looking at the plan, if we can go back…variance, I can ask the question. Mayor Furlong: Alright. Okay. I did have one question for the attorney, if I could Mr., was it Wizard? Wisdorf? Brian Wisdorf: Wisdorf. Mayor Furlong: Thank you. Sorry. Brian Wisdorf: Not a problem. Mayor Furlong: You talked about the, there is a hardship because strict adherence to the 25% would not allow reasonable use. Help me understand how you're considering reasonable use of that, see if I understood you correctly. Brian Wisdorf: What I was taking from the comments that were brought up before we got up to present our part was the conversation that had taken place with regards to the staff's calculation of the overage at this point and I, what I was taking from that was that there may be a concern with the council with regards to giving credit or not calculating into the hard surface coverage the retaining walls and my point being, as part of whether or not you grant a variance, part of that hardship is you look at the, whether to grant a variance, you look at whether or not there's an undue hardship and I think it's clear, it's been clearly articulated as part of an undue hardship is a person's ability to use the land in a reasonable manner and what I was saying is with regards to change in elevation in the back yard to get a reasonable use of a parcel, especially one that's shaped in the manner that this is, when even beyond the retaining walls that have been built on this property, there's a vast area of the property which remains unaffected that to prevent the property owner from maintaining those and keeping those retaining walls in place would create an undue hardship and therefore if not taking out, if not excluded from the calculation would create an undue hardship. Mayor Furlong: Because of the topography and the. 22 City Council Meeting - September 24, 2007 Brian Wisdorf: Shape of the lot. Mayor Furlong: The shape of the lot. Brian Wisdorf: And it's topography. Mayor Furlong: And with regards to the shape of the lot. Brian Wisdorf: My point being that, on the parcel here, the retaining wall goes out to here. It appears that the property indicated by the exterior line, my point being that change in elevation start in this area and if you take out the retaining walls, you're going to have an undue hardship on the property owner which would give rise to a reason to grant the variance if you decided to leave the retaining walls in the calculation. Kate Aanenson: Mayor? I was just going to say, well there's two ways to look at it. One, you could put the retaining wall and meet the requirement but you have to take out all the other stuff. It's the other stuff that's causing the problem. The patio. The fire pit ring. So even if you're looking at some of those retaining walls. If you look on page 5 of the staff report, it gives you a breakdown of all those square footages of what's pushing you over. See the table? Mayor Furlong: Yes. Councilman Litsey: But that was one of my questions. What needs to be taken out? Kate Aanenson: Right, I think that's kind of, you do kind of a menu of what choices that, what's pushing it over the top. Councilman Peterson: What page are you on? Kate Aanenson: It's on page 5 of the staff report. Mayor Furlong: Well, in the handout? Kate Aanenson: It's on there too. Mayor Furlong: There's a revised schedule. Kate Aanenson: Yes, if you look at that. Mayor Furlong: And the difference there, just has to do with the upper wall and lower wall? Kate Aanenson: So if they're at 23.2% right now and you were to add just the retaining walls, which would be 365, you've be over by 20 square feet. So if you added the retaining walls, plus or minus eliminating 20 square feet, you would still be at that, just slightly over the 25%. So you wouldn't need a variance just by putting the retaining walls in, but for 20 feet. 20 square feet. 23 City Council Meeting - September 24, 2007 Mayor Furlong: And just to clarify then the table that we're looking at on page 5 as revised and actually this is consistent. The first 3 items. The house, garage, porch, driveway, front walk. Kate Aanenson: Right. Mayor Furlong: Those are the items that were included in the building permit and total 23. how much percent? Todd Gerhardt: 2. Mayor Furlong: And I'm correct in saying those first 3 line items Mr. Generous were part of the? Bob Generous: Those were part of the original building permit application. Mayor Furlong: 23, okay. Councilman Peterson: How many square feet do they have to eliminate to get down to the 25? Todd Gerhardt: 195. Councilwoman Tjornhom: 195? Todd Gerhardt: 95. Kate Aanenson: I think it's a little more than that. Todd Gerhardt: Also 381. Bob Generous: After the original approval they had 345 square feet of expansion that they could have done. Councilman Litsey: Could have done. Bob Generous: Without a variance. Mayor Furlong: 345 square feet. Kate Aanenson: Right. Mayor Furlong: Plus the original would get you to the 25%. Kate Aanenson: Correct. So what that allowed you to do is put the retaining walls in, if that was your choice to use for your hard cover, or to put in a front, the patio paver sidewalk. The other choices that they selected from. 24 City Council Meeting - September 24, 2007 Mayor Furlong: Okay. And again for clarification, if the upper and lower walls were included, if I'm adding correctly is 365 square feet. Kate Aanenson: And they had 345. Mayor Furlong: And they have available 345. Kate Aanenson: That's correct. Mayor Furlong: Okay. Brian Wisdorf: I think that still goes to the issue of whether or not the retaining walls are necessary in order to avoid an undue hardship. Yes you could include the, from what I'm understanding you could include the retaining walls and still come under the 25%. It is my position that with regards to the improvements to the property, any improvement necessary in order to get the, get use out of the back yard should not be considered in that calculation. That for to the extent that it is considered in that calculation, that amount of coverage should be considered as part of the variance because that is what creates the undue hardship. And what my client is proposing to do, which isn't required to do by ordinance, is to address the two things that are left on the property that are, create the largest problems and that's the patio and the fire. Let's see, upper patio and fire pit I believe are probably your two major issues. And what they're proposing to do would not only alleviate the concern that the ordinance was put in place to address, but it more than compensates for it. Mayor Furlong: Okay, thank you. Councilman Litsey: Well maybe this is too simplistic but at the time this was platted it was made clear right that there's a 25% maximum hard cover requirement? Brian Wisdorf: I was not involved with the builder at the time. Councilman Litsey: Well that's what I asked, in my staff report it's saying that and so now you're claiming a hardship but yet all along that expectation was made clear from the time it was platted apparently. And perhaps you're trying to get too much into the size of the lot that it just can't accommodate that to meet the ordinance. Because some of the other things that are being talked about doing here are nice and they're you know cutting edge maybe applications and things like that, but we haven't gotten to the point where we've adopted it in ordinance so, to me it seems like it goes back to when this was originally platted and it was made clear what the expectation was and then you have to live with that. I don't know how you can come back later and then claim a hardship when it was made clear from the onset that this is the requirement. Brian Wisdorf: Well Mr. Papedis was not involved in the originally platting. His knowledge of this issue first came to his attention when the inspector came to the site and spoke to the contractor who then proceeded to inform my client that the issue that's on his property. 25 City Council Meeting - September 24, 2007 Councilman Litsey: So would the issue not be then to go back to the contractor and talk between, have that dialogue rather than here? Brian Wisdorf: Well that, ultimately my client is the one who owns the property. Just bought and built a very large and expensive home on the property and doesn't have any intentions on moving and I don't know to what extent a financial settlement with the builder is going to alleviate the hardship. I mean obviously that doesn't go to necessarily the issuance of an ordinance but it still doesn't address the hardship that it would create for my client with regards to the taking of, for building this size of house, this nice of a house and then not being able to build a patio off of it seems to be, create somewhat of a hardship for the client as well as the fact that you know his plan is, as you can see from his plan, to develop the number of trees and plants he's also planning to plant around his property is all tied into what he's currently got. Councilman Litsey: Okay, I still think your issue's more with the builder than before this governing body and I'm sympathetic to what you're saying. Don't get me wrong but I'm not sure we're the proper authority to resolve it. Mayor Furlong: Okay. Thank you. Thank you, any other questions for the applicant? Or anything else from the applicant? Comments? Ojars Papedis: Council, my name is Ojars Papedis. I am the homeowner. I'm the one who owns this piece of property and the situation I'm presented with here so if I may express my views as a new citizen of Chanhassen, coming from Bloomington. I'd also, the aspirations that I have for this house when I bought it. I think you'll find this to be true with many of the owners in the Pinehurst development. None of us were told explicitly that there was a 25% hard cover ordinance in the city of Chanhassen and that the houses that were being put on it, and more importantly, nearly consumed the entire hard cover issue and when Brian was speaking about hardships, I don't think we're talking about a hard, black and white hardship. We're talking about an owner, such as myself and some of the others that are in my neighborhood, who bought so to speak the house of their dreams and would love to have put reasonable outside conveniences such as a patio for entertaining and enjoying the property. And I can tell you that when Mr. Johnson of Southview and I came up with this plan we did not think that we were covering the entire lot with bricks and pavement and parking spaces. In fact we even went a little less aggressive than what you see today so. And I personally as a homeowner think that I have no desire to break the ordinance or have the ordinance change but I do think that with the help of Southview and the professional over here, we've come up with a plan that would still meet the spirit of the ordinance which is to limit runoff and still have the ability to enjoy this fine house that I now own so, that's my point and I think that's the issue that faces myself and the other homeowners in that particular development. We were very shocked to find that we couldn't do more than put in a 20 by 20 foot patio. Not for the kind of lots that we have and the houses that we have. Mayor Furlong: Thank you. Ojars Papedis: Thank you. 26 City Council Meeting - September 24, 2007 Mayor Furlong: Any questions of the property owner? Councilman Peterson: I've got a couple more. Not for you sir but for staff probably or the landscaper. Kate when we, or Bob, when we figured the impervious surface, did you factor in anything for the stone steppers or is that? Kate Aanenson: That was added. If you look at the sheet that shows the original survey. Councilman Peterson: Oh the steppers were on the bottom. That's the stone steppers? Kate Aanenson: Yeah. Councilman Peterson: Okay. And then for the landscaper itself, in the areas around the house, are you using fabric or are you using plastic? Tim Johnson: We're using neither. We're actually going to be installing a pine bark mulch that's going to be installed on top of the soil. There's going to be no rock or poly installed on the site at all. As far as one question of concern that I've had with Angie a couple times is, you know the stepping stones are individual. There's you know large gaps inbetween it. It's not a pathway. I mean we're not going to be considering outcroppings but we do consider stepping stones so those are I guess in gray areas within what needs to be considered. It seems like that can be a little bit of more of an opinion as far as hardscape stepping stones and individually, they're not touching each other…you know so it's no rock. No poly so. Can I make one comment? You Todd had mentioned have we used the system before that Chris has brought up. We're currently nearing an end of the development in Minnetonka where we've used a similar situation. Actually the depth of the dry well and infiltration system is much smaller that we're actually installing. It's used for ground protecting some lower townhomes from the runoff and the drainage from the newer development homes so this is a system that is being used you know real close by here in the city of Minnetonka. Todd Gerhardt: But it hasn't gone through a freeze thaw cycle yet? Tim Johnson: The development's probably 3 or 4 years old. Todd Gerhardt: Okay. Councilman Litsey: And is that to meet their ordinance standards or, here we're talking about trying to basically give you some credit for that technology. Are they getting credit in Minnetonka for that technology? Tim Johnson: That basically is just protecting the lower properties from you know receiving the amount of runoff from the much larger homes and the townhomes so basically it's doing the same activity that we're asking it to do by collecting the runoff from the home and you know allowing that to go into the system. 27 City Council Meeting - September 24, 2007 Councilman Litsey: But they're meeting the hard cover, as far as you know they're already meeting the hard cover surface? Tim Johnson: Their hard cover in the city of Minnetonka is I believe 30 or 31 percent so they're much higher percentage than the city of Chanhassen. Councilman Litsey: Okay, but…my question was they are meeting the ordinance currently without that system in place? Tim Johnson: That system that we installed there was more or less just to allow, I'm not sure how that came into play. I think that was developed through the engineer that actually provided that system to go in place. Mayor Furlong: Was that part of the platting of the development or was it for an individual home? Tim Johnson: It was, some of the homes on the hillside, like what we have right here, were, our lots are sitting up much higher. That was put in for those homes that sit above the other. Mayor Furlong: The developer did that as part of the subdivision of the plat? Tim Johnson: I believe it was the developer and the city would review that as a whole. Mayor Furlong: Okay. Thank you. Any other questions for staff or the applicant? Roger Knutson: Mayor, not to complicate things. Just to comment on. Mayor Furlong: I'm ready for that. Roger Knutson: There's several criteria that have to be met for a variance. I'm not going to address them all. They're addressed in the staff report. I'm just going to address one of them. One of them is, does the ordinance prevent a reasonable use of the property? Not any reasonable use but a reasonable use so the question you have to ask is what they want reasonable. When considering that criteria you can, if you choose to, consider only offsets that the applicant is offering to reduce the negative aspects of what they're proposing. So in this example, what did they call them? I'll call them sand pits. If the sand pits reduce, are effective and do reduce runoff, you can consider that in determining whether, if that were a condition, whether that is a, helps creates a reasonable use of the property. You're allowed to do that. Again that's just one of the criteria you have, is something unique about the property and all the other criteria. So you can factor that in if you choose to, if you find that it's effective. Mayor Furlong: Okay. Councilman Litsey: Well I have a question for staff. Are we anticipating other requests for variances in this development based upon? 28 City Council Meeting - September 24, 2007 Kate Aanenson: Yes. Bob Generous: There's one in the works right now. Councilman Litsey: And perhaps more. You don't have a crystal ball to tell us that but your sense is that there will be more. And is that due in part then to the, how this was platted? Kate Aanenson: Well again, we asked the developer, if you recall we've made a couple changes. One on these larger homes that put a patio in and they're at, we've had them come in at 24.5, 24.9. We've asked them if they have a patio door, that they have to at minimum, we've amended the code to say they have to have a minimum, put a 10 by 10 landing pad out there. So that they have to put a buffer in there. We've had developers try to leave off front sidewalks. Didn't meet that impervious. We said that's not a reasonable expectation. We did inform, we did mention to Lennar, we were deeply concerned of how they were platting these lots and the size homes they were putting on the lot. We've had a lot of negotiations when these plans come in. When they show them at the maximum, we circle that. Tell them unfortunately that the homeowner doesn't always look. You know we carefully noted on this, this is towards the top end and there's expectation of, that they're looking at that when they come in. That the landscaper or whatever's going to call us to see what they can do. Mayor Furlong: Any other questions at this point? Other than that, thoughts or comments. Consider the request here before us. Councilman Peterson: Mr. Mayor, I'm happy to tackle this one. You know I don't even know how many years I've been doing this now. I've kind of lost track but it's been 15 or 16 I guess that we've had variances come before the Planning Commission and City Council and it's frustrating to say the least and I think that you know to support what the city attorney said, is it you know, is it a hardship to have grass over a brick paver patio. I would be hard to say that that would be the case. We put the ordinance in at 25% for all the right reasons and it's reinforced by the difficulties we've had with the development that sits below this one for the 100 year storm we had last year, the year before so. We saw intimately what the impacts of runoff can do to homes and to parks and to everything else that we had, which is substantial. So do I see a compelling reason to grant a variance in this case? I don't but what I do see, which I haven't seen before is a creative idea of ways to mitigate it. I don't think I'm ready to, and certainly staff isn't ready to say a dry well is a reasonable alternative but I can say from personal experience I have one. I draintiled my house on the outside 3 years ago and put in a dry well about 5 feet down. I happen to look at it and dig it out this year because I was curious to see whether it required any maintenance, and it hasn't in 3 years. And it's working wonderfully and so, although I am not comfortable approving this tonight, I would offer that I think the dry well concept has a lot of merit and probably much more merit than in the discussions we've had over this last year about pervious pavers and impervious asphalt. I think, and I don't know why I didn't think about it before because I…3 years ago but it wasn't for impervious surface issues. For different reasons but you know Todd to your point, the cycle of the seasons hasn't seem to do that, having pause or a negative affect to it. At least mine worked well. So that being said, you know I don't really see the reason to say yes to this. I think we've been pretty aggressive to try to make it as small a variance as we can, and I guess, I applaud staff for trying to get down to close to 25 as we can, 29 City Council Meeting - September 24, 2007 but we're not there and I've turned down a lot of people that weren't there, and I feel bad about it but I'm doing it for the right reasons and that's the reason why I recommend that we deny it tonight. Mayor Furlong: Thank you. Other thoughts and comments. Councilwoman Tjornhom. Councilwoman Tjornhom: Yeah, these are, these are the cases that I really always struggled a lot and it's very easy to just be reasonable and say it's 3.3%. You're doing something good to your home. You're adding value. You're making our neighborhoods and our city a better place to live. But the problem is you have homes all around you and they all had to live with this same criteria of 25% hard coverage surface, and there's a reason for that because we all have seen what water runoff does. I believe there was a neighbor in Manchester who called in saying that his basement had flooded. Well you know the 25% protects everybody and if we all tried our best to keep to that 25%, I think we've shown that that works and so I also am inclined to go with staff's recommendation of not granting a variance due to the fact that we've been consistent so far as a council with our coverage and I would like to stay on that same track. Mayor Furlong: Thank you. Councilman Litsey. Councilman Litsey: I agree with what's already been said here. I think it's been well put in my comments and what I've already said is…so I'm comfortable with supporting what's been said. Mayor Furlong: Thank you. These are difficult, especially when work has already begun and there's improvements being made to the property and then a stop work occurs and that is a challenging situation that I can empathize with. I think also I can empathize with the comments made by Mr. Papedis earlier with regard to expectations of buying a home in the city. This is a great place to live and people want to move here. They want to build nice homes. We have seen time and again the size of the homes relative to the lots generally increasing and this is a situation that I don't think will change in the near future, or at least from what I've heard and seen in this neighborhood and development. The issue comes down to reasonable use. What's reasonable use? One person's use is different than another's. What is reasonable? We try to find that in our ordinance and to Councilwoman Tjornhom's point, we try to hold everybody to the same standard and that standard includes a type of home in terms of structure and some components but it also includes the size of the home and other impervious surface coverage relative to the lot size. We heard this evening on topography and shape of the lot were part of the hardship here. I'll deal with the last one first. Shape of lot I struggle with. We spent a lot of time during the platting process to make sure we don't have lots that make, that create an unreasonable use situation or that put us into a situation that would justify a hardship or a variance. With regard to topography, Chanhassen is not on a plain. We're not flat. We have that everywhere and I'm a little concerned with regard to, to the retaining wall issue. I think that is something that we need to spend some time on and make sure that we treat people fairly and equally. That is our role and the, to that end there are a number of developments that don't have flat back yards and retaining walls are used to create that but they may provide a benefit, as we heard here this evening but that is not something that we looked at in the past. In this case I'm relying on staff's interpretation that this is an improvement for this particular situation but I don't know that that's a question that we're comfortable taking at this point. 30 City Council Meeting - September 24, 2007 Kate Aanenson: Correct. Mayor Furlong: That leads me to my other point and that is for instance in making sure that what we do for any property owner we're willing to do for others and I'm not sure that at this point I am too intrigued by the technology that is being presented here as an opportunity. I don't think that I'm willing to support it tonight through the variance process, but that too is something that we can talk about and if it is something that we want to adopt in ordinance, then we would always have that opportunity outside of the variance process for any property owner in the city to utilize that type of technology at their home and at their property when and if that time comes so I think that's something that this is going to be an ongoing issue. Storm water management is a challenge for this city. We heard the 100 year storm mentioned earlier this evening. We had two of those in about a year period so we got at the end of the 100 years and beginning of 100 years I guess but, and this particular area of town was very hard hit in a couple of those and to your point, we saw what happened. And so I am at this point I too don't see a compelling reason to provide a variance from a hardship standpoint. I believe reasonable use is available here and I believe that with regard to the adjustments that have been made already, with the retaining walls, that still provides some additional improvements that can be made, if I'm understanding that correctly and so I think staying with the 25% as has been interpreted and calculated by staff is a correct thing to do in this situation. So I feel and empathize for the property owner. I don't think you're going to be alone. I know that probably doesn't help but I think the issue comes back to, as was mentioned earlier, what was identified back at the time that the subdivision occurred, and that was storm water. Storm water management. We spent a lot of time talking about the size of ponds in this particular part of the development I recall in particular and that the nature of the runoff and so I think that was clearly an issue that we saw going in. So unfortunately for the property owner I believe we have to deny the variance. I'm grateful for the work that was done to try to find some accommodations, which I think has been done given the situation and then I think at this point given what we have and what our ordinance says, this is what we can do. To the extent that we proceed in the future and seek to adopt some different standards to our ordinances, and those again would be available to everyone in the city and would be the proper way to go so at this point I guess, unless there's any other comments from the council at this point, is there a motion? Councilwoman Tjornhom: Mr. Mayor I make a motion that the City Council deny variance #07- 19 for a 3.3%. Kate Aanenson: I believe that was 5 point. Councilwoman Tjornhom: Is it 5.0? Roger Knutson: 3.3 in the revised. Kate Aanenson: Okay. 31 City Council Meeting - September 24, 2007 Councilwoman Tjornhom: Okay. 3.3 hard surface coverage variance from the 25% maximum nd hard surface coverage for the addition of hardscape in Pinehurst 2 Addition based on the findings of fact in the staff report with the following conditions, number 1. Roger Knutson: Mayor, does that also include the extra finding that Bob read? That would include a correction of that finding which currently says 5.3. Now it's 3.3. Mayor Furlong: And the condition is that it shall not exceed 25%. Okay. Councilman Litsey: As stated I second that. Mayor Furlong: Okay. Is there any discussion on the motion? Councilwoman Tjornhom moved, Councilman Litsey seconded that the City Council denies Variance #07-19 for a 3.3% hard surface coverage variance from the 25% nd maximum hard surface coverage for the addition of hardscape in Pinehurst 2 Addition based on the findings of fact in the staff report with the following condition: 1. The hard surface coverage of the site shall not exceed 25%. All voted in favor and the motion carried unanimously with a vote of 4 to 0. COUNCIL PRESENTATIONS: None. ADMINISTRATIVE PRESENTATIONS: Todd Gerhardt: The only thing I had to add is that we have made ground with MnDot and have received deeds for the southern fire station property off of Lyman. You'll see that probably on our next City Council agenda for you to approve the deeds. Mayor Furlong: Other discussion items? Councilman Peterson: The only other one, I don't know where this is appropriate but in this last staff report, the narrative describes that it's the developer and the real estate's agent duty to inform perspective homeowner. I guess as a matter of future, it's not the real estate agent's duty to inform from a legal perspective, just to clarify. Protecting those real estate agents… Mayor Furlong: Okay. Any questions for Mr. Gerhardt? I guess one thing, I'll use this as an opportunity to point out, Mr. Oehme is here. Tonight in our consent agenda, one of the requests from Mr. Oehme and our engineering department was to approve a joint powers agreement for the scoping study for Highway 5 from Highway 41 west through the cities of Victoria and Waconia and out to Norwood-Young America. That was the first step that is actually a joint agreement between those four cities, the County of Carver as well as MnDot who will be providing some in kind services as part of those studies and that's something that I think has been an issue for a number of our residents and with that study it will start moving us along towards being able to make some improvements, safety improvements as well as capacity improvements 32 City Council Meeting - September 24, 2007 along Highway 5 west of 41 towards Victoria and out towards Waconia and Norwood-Young America so I think that's a good step that we have taken and that the other cities along the corridor along with the county and state are taking. CORRESPONDENCE DISCUSSION. Mayor Furlong: I guess I'd just like to make one comment and that is, thanks to staff for putting together and researching the request that was made at our last meeting regarding the Preserve development and appreciate the time and effort that they put in in terms of responding to that request from the County so thank you very much for that. If there's nothing else to come before council this evening, we will reconvene our work session upon adjournment. Is there a motion to adjourn? Councilman Litsey moved, Councilwoman Tjornhom seconded to adjourn the meeting. All voted in favor and the motion carried unanimously with a vote of 4 to 0. The City Council meeting was adjourned at 8:55 p.m. Submitted by Todd Gerhardt City Manager Prepared by Nann Opheim 33