1e. Approve Findings of Fact Regarding Variance 93-9, Jeff PapkeCAMPBELL, KNUTSON, SCOTT & FUCHS, P.A. �0. �74
Attorneys at Law
Th, 1. C.impl
R „crr N. Kiwi, in
Thom) \1. Sc,
(i:Ir\ G. Fui h
IMUL -1 R. \Val,t,)n
E1hott B. Knetsch
Eli:aheth A. Lun_er
Andrea McDmwell Poehler
January 18, 1994
(612) 452 -5000
Fax(612)452 -5550
Manager's Comments: Approval is recommended.
DWA (1- 20 -94)
Mr. Don Ashworth
Chanhassen City Hall
690 Coulter Drive
Box 147
Chanhassen, MN 55317
Re: Papke Variance
Dear Don:
Enclosed please find the Findings of Fact and Decision which I
have drafted in regard to the above matter.
Very truly yours,
F BE PL KNUTSON, SCOTT &
CHS, P. .
N. Knutson
RNK:rwg
Enclosure
cc: Mr. Paul Krauss
Enclosure
tro
Suite 317 • Eagand ale Office Center • 1380 Corporate Center Curve • Eagan, MN 55121
1
In Re.
CITY OF CHANHASSEN
CARVER AND HENNEPIN COUNTIES, MINNESOTA
Application of Jeff Papke,
et al. for a Setback Variance
for a Septic System.
FINDINGS OF FACT
AND DECISION
Jeff Papke, Clifford Gustafson and Carol Gustafson (collec-
t tively "the Applicant ") have applied for a variance from § 20 -405
' of the Chanhassen City Code that requires septic systems to be
set back at least 150 feet from the ordinary high water mark of a
wetland. The Applicant proposes a 75 foot setback. On November
22, 1993 and December 13, 1993, the Chanhassen Board of Adjust-
, ment and Appeals conducted a public hearing on the variance
request. At the conclusion of the hearing, for the reasons
stated in the Minutes of the Proceeding, the Board recommended
that the variance be denied. By letter dated January 5, 1994,
the Applicant appealed the Board's decision to the City Council.
' The City Council now makes the following:
FINDINGS OF FACT
1. The property is zoned RR, Rural Residential.
2.
The property is
a 2.5 acre peninsula on Lake Minne-
washta.
'
3.
The property is
within the Municipal Urban Service Area
(M.U.S.A.)
and could be
served by public sewer.
"sandy
4.
The soil type on
the property is lake beaches ".
This soil
type provides
a severe limitation on the use of any
septic system.
This type of soil has the lowest suitability
rating for sewage treatment.
,
5. Section
20 -56 of the City's Zoning Ordinance provides
may be granted only if certain specified criteria
'
that a variance
satisfied.
The criteria and our findings regarding them are:
are
(1)
That the literal enforcement of this chapter would
the
cause undue hardship. "Undue hardship means
use because of
property cannot be put to reasonable
surroundings, shape or topogra
'
its size, physical
phy. Reasonable use includes a use made by a ma-
five hundred
jority of comparable property within
it. The intent of this provision is
,
(500) feet of
not to'allow a proliferation of variances, but to
recognize that in developed neighborhoods pre -ex-
Variances that blend with
isting standards exist.
existing standards without departing
'
these pre-
downward from them meet this criteria.
Because the property can be developed without,
to sewer, the denial
variance by connecting public
will not cause undue hardship.
of a variance
'
(2)
That the conditions upon which a petition ne a to
not applicable, generally,
variance is based are
other property within the same zoning classifica
tion.
There is nothing unique about the property that
justifies a variance.
(3)
That the purpose of the variation is not based upon
income potential
a desire to increase the value or
,
of the parcel of land.
The only purpose of the variance is to avoid the
,
added cost of connecting to public sewer.
(4)
That the alleged difficulty or hardship is not a
r
self-created hardship.
The Applicant did not create the conditions upon
which the variance application is based.
'
(5)
That the granting of the variance will not be det-
injurious to
rimental to the public welfare or
in the neighborhood in
,
other land or improvements
which the parcel of land is located.
-2-
The purpose of the setback requirement is to pre-
vent pollution going' i n`td wetlands and ultimately
into lakes and rivers. A properly functioning
septic system may not cause pollution, but septic
systems do fail, thereby causing pollution. Be-
cause of the very poor soil at the location, fail-
ure is much more likely than would otherwise be the
case. Failure of the septic system at the location
could have severe consequences because of the prox-
imity of Lake Minnewashta.
6. The following records and reports are incorporated
herein by their reference:
• City of Chanhassen Wetland Observation Record
• Carver County Soil Survey
• Board of Adjustments and Appeals' Minutes for
November 22, 1993 and December 13, 1993 .
DECISION
Based upon the above findings, the variance from §20 -405 of
the Chanhassen City Code is denied.
Dated: , 1994.
CITY OF CHANHASSEN
BY:
Donald J. Chmiel, Mayor
ATTEST:
City Clerk
%: f)
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s
City Council Meeting - January 10, 1994
n. Resolution #94 -07: Approve Joint Resolution with Carver County equesting MnDot to Consider Speed
.Peed
Revisions to County Roads in Chanhassen along Kerber Boulevard and TH 101.
All voted in favor and the motion carried.
Mayor Chmiel: We'll move the items of consent onto item 7(A). There is on this for Pauly's, and I'll just back '
up one moment. If there's any discussion in regard to that, which is item (m). If not, we're going to carry that
over to item 7(a) which is at the end of the agenda unless you'd like to address that at this time. Russ, do you
have anything?
Don Ashworth: Maybe I was mistaken. '
Mayor Chmiel: Alright. So it will stand as corrected. '
VISITOR PRESENTATION. None.
APPEAL DECISION OF THE BOARD OF ADJUSTMENTS AND APPEALS FOR A 75 FOOT '
WETLAND SETBACK VARIANCE FOR THE LOCATION OF A SEPTIC SYSTEM. SOUTH, EAST
AND WEST OF LAKE MINNEWASHTA AND NORTH OF HIGHWAY S. JEFF PAPKE.
Public Present:
Name Address '
Cal Haskins 9480 County Road 43
Dr. C. Gustafson 1195 Duckwood Terrace
Jeff Papke 6180 Cardinal Drive South, Shorewood
Sharmin Al -Jaffa This is a peninsula located south, east and west of Lake Minnewashta. The applicant is
requesting a 75 foot setback variance to locate a septic system 75 feet from the edge of a wetland, or the high
water mark of a wetland. The ordinance, our city ordinances require a 150 foot setback. This is a lot of record.
We do have some concerns with it with a parcel such as the type of soils that are on the site. The soils, the only
survey that we looked at were, that was available to us was the Carver County soil survey and it showed us that
the soils weren't suitable for a septic system. However, if and when the applicant puts in a septic system, it
would have to be designed to meet all of the standards. It would be looked at by Steve Kirchman, the Building
Official and unless they meet those standards, it won't be permitted to be located on this site. Earlier today the
Mayor had some questions in regards to hooking up to sewer and water. There are, and the cost of hooking up '
to sewer and water. The hook -up would cost approximately $30,000.00 to $35,000.00 for an on site lift station.
A typical residential single family would be assessed $8,000.00 for sewer and water so if we take sewer alone
that's $4,000.00. The cost...is quite substantial. This variance is for a setback from the edge of the wetland '
only. It's not for the design of the system. Staff is recommending approval for the setback from the edge of the
wetland. If there are any specific questions regarding the septic system, Steve Kirchman is available to answer
questions that you might have. We are recommending approval with conditions outlined in the staff report.
Thank you.
Mayor Chmiel: Thank you Sharmin. Is Mr. Papke here? Would you like to say something at this time? One
of the questions that I have is if this does get approved, are you in agreement with the conditions that are
contained within the recommendation? '
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City Council Meeting - January 10, 1994
Jeff Papke: Yes I am. Just to I guess give you a little more information here. I'm now the owner of record.
I'm currently in a purchase agreement with the owner and it would be our intent to build on that property in like
a 3 year time frame. And one of the conditions of the purchase agreement is that the property be able to obtain
a building permit so that's the reason why we're going through these actions. Our initial request was that the, or
discussions were that the property itself will be reclassified because that's the only piece of property on that lake
that's classified as wetland. When the survey was done and the classifications were established, the maps were
incorrect and they showed the property to be about 3 or 4 feet below where it actually is and I think reality,
when the wetland designations was given, it was because the maps were incorrect. It looked like it was lower
than it actually is. If you surveyed the property it shows hardwood trees and certainly when we've done borings
for the septic proposal, the modeling is at an acceptable level which means that over has risen above the
necessary levels. Now I guess to clarify—some of the tests that were done, and the proposal was not for your
normal septic system. It is for a mound system which the initial look at from the engineer was, I think he
approved it and he thought it looked okay as far as a mound system. I think in general when the sewer was put
in that runs along the west side of the lake, if the intent was to make a connection onto that parcel, a lot of
record, it certainly would have or could have been designed to run close at that point in time. I think it's about
an 1,800 foot nun and I know I've looked at some of the costs involved this far and I know Sharmin has too
and...$35,000.00 to $65,000.00 for sewer and water, which really creates a hardship for the property given the
distance from sewer and a connection would have to be made across a Class 3 wetland in order to do that.
Again, I'm in agreement with the provisions and the caveats are included as part of the variance request.
Mayor Chmiel: Okay, thank you. Is there anyone else wanting to address this at this time? If not, I'll bring it
back to Council. In reviewing some of the analysis that were done, I was looking at Steve Kirchman's memo. I
feel we're sort of putting a cart before the horse but at the same token, trying to buy the property is a problem in
itself if they can't get a condition on it as they're looking for. It seems to me that some of the.:.point of looking
at the borings that were there was done as he's indicated in his first memo, was suitable for an on site sewage
treatment system. He's indicating that that site is very marginal and moving it 10 foot in any direction could
render it unsuitable. And I guess I'm thinking about our County Road 17 with the existing soils, although the
County had built a highway over some soils that were not conducive to the road and even though it did stand up.
I'm trying to make a comparison is what I'm doing. I still have some concerns with the borings one side or the
other and to have some additional borings from where the proposal is being looked at. And I feel more
comfortable because I'm not sure as to what the balance of that site basically is. I look at it from a construction
aspect and with unsuitable soils, there can be all kinds of given problems with a home going on that particular
soil, on those soils. And I wouldn't want to see a house list one side to the other. I'm not sure as to what kind
of foundations are even going to be going in. And I know that we're looking at just strictly that 75 foot wetland
setback but it all hinges on a few other things so I guess I'd like to just throw it back to Council. Richard, do
you have something?
Councilman Wing: When Highway 5 goes to 4 lanes, here we have another driveway going right into the new
highway. Why is that? Aren't we thinking service roads or what's going to happen to this house when we go to
4 lanes? In the near future.
Charles Folch: At this point Highway 5 is only programmed to a 4 lane out to TH 41. MnDot really has no
indication as far as timing and such from there on after. Conceivably at some point in the future, it is possible
that that segment could be a 4 lane. In terms of a controlled access ... for a frontage road, I guess that really
hasn't been studied at this point in time. I know we do have a similar situation just west of here on Lone Cedar
where we kind of created a little frontage road to serve a couple lots there to help gain direct frontage off TH 5
and that was directly related to their request. It was them more wanting to get off direct access onto TH 5. But
2
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Ci ty Council Meeting - January 10, 1994 1
that issue really hasn't been valued in terms of this parcel.
Councilman Wing: It would appear to me that to have that driveway coming out onto a very narrow 2 lane, 55
I even comprehend allowing a
,
mph road in the middle of nowhere is going to demand tam lanes. can't
into that position even if though there's good sight lines either direction. But to suddenly have
driveway to doesn't seem to
go
cars pulling in an d out of that driveway and then slowing down onto, the traffic on Highway 5,
I Mr. Mayor and Council, my frustration is this property
be in the city's best interest or anybody elses. guess
for many, many, many Yeats and the Arboretum's argued it and we've argued and discussed
has known to exist
it and the Park and Rec should have never allowed this to happen. It should have been purchased by the
It have gone into a passive park. We didn't do it. Now it's owned by someone
Arboretum, ourselves. should
else. It's up here for development and I don't think we have a right to say no, because we chose not to buy it.
do what we knew was right in the first place, and we
We chose not to take it into our own park system and d then
knew we didn't want it developed. It was the first thing in the Highway 5 corridor that w I'm
haven't done anything Iguess not
how many times has the Arboretum discussed that parcel and they
think should put the access onto Highway 5 and if we do, I think
about to say, with one exception. I don't you
that should be dealt with before we approve this. I don't think we should be having cars making tarns into a
I don't feel we have any right to
driveway right in the middle of a freeway stretch there. So the proposal itself,
say no to because we've already let this go by. But that access is another issue. I think that has to be dealt
issues have would
'
with, as much as the Mayor's concerns about the building and soils so, those two
bey
I'd like to see both those answered and clarified before I would approve Y
,
approve this.
have a right to develop it. We chose not to.
Mayor Chmieh Okay, thank you. Colleen.
'
Councilwoman Dockendorf a n, We � e aind�beyon probably what the test of me if the S requares? � ter of,
ordinance is 150 feet b 8
statewise it's "generally 75 feet?
'
Sharmin Al -Jaffa That's correct.
Councilwoman Dockendorf: Okay. And a couple questions about a mound system, which I have in my back
yard and I know that we had good soil borings and both of our sites were good in terns of the soil borin
it still cost us $9,000.00 to put in and I'm wondering about the financial hardship that you're getting y o ur se lf in
for Mr. Papke. You know $30,000.00 to $35,000.00 for city sewer and water, whether it goes in or not, I think
you're going to face those same costs. Now if we, if a mound system does go in, Steve and this is directed
mostly towards you. From what I understand,I mean f yoouu u b a s basica en ough hill of sand' it can percolate
through and by the time it gets down to ground level, t
Steve Kirchman: That's correct.
Councilwoman Dockendorf: Okay. So if you want a big hill in your back y ard, I here and I know that from
to '
protect you from yourself but I'm saying there are going to be huge costs involved
personal experience. I guess I would be comfortable suing a few more soil borings as well to make sure there
are acceptable sites because they were real marginal. You know, how do you measure an inch of modeled soil,
etc and I hadn't even thought of what Richard brought up but that's a good point. That's all I have to say right
now. '
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City Council Meeting - January 10, 1994
Mayor Chmiel: Michael.
' Councilman Mason: I think this is going to be one of those things that does come back to us one step at a time.
I understand, I think I understand why staff is recommend the variance and I think I understand why Board of
Adjustment and Appeals denied it unanimously. Under the circumstances I, at this point in time and I think for
this variance, I agree with what Richard is saying. I don't think Council has a right to say no. I do think as
more variances come along the line, the building permit for example, and I know you're aware of that. You
know, and I admire Mr. Papke's patience because I suspect this will take a number of years to figure out one
way or the other. I have some personal feelings about buildability on that lot but that's not the issue right here.
I see the issue as right now just being this and because there is the hardship there, I guess, well I don't guess. I
think Council should in fact approve this one. But I think it as one step at a time.
Mayor Chmiel: Thank you. Mark.
Councilman Senn: I guess on this I haven't really changed my mind from where I sat on it as it relates to Board
of Adjustments and Appeals. We had a couple meetings on it to talk about it. Looked at it very hard. Prom
my standpoint I just cannot justify in my own mind saying yes because I think we should say no and I think the
no is because there's no way we should allow a septic system at this elevation within 75 feet of the lake. We
have enough problems with our lakes and in terms of the stuff going into them right now. We don't have good
' grades on any of them that I'm aware of and this situation only aggravates that. I think this property should be
allowed to develop but I think it should be allowed to develop at the right time. The right time is when sewer
and water is available to the site and I think that also comes back and deals with a lot of the issues over access
and that sort of thing because really the point, that's all going to be resolved and sewer and water's going to go
in is you know when the roadway probably expands. And I think this is premature and we're being asked to
approve on a variance and I just can't again justify, at least in my mind, a variance for that type of situation.
' Mayor Chmiel: True. And this will come back each year if he's looking at 3 years down the road. He'll have
to come back to Council 3 different times too for that to become valid. Mike.
Councilman Mason: Question Steve on mound systems. I'm only mildly familiar with them because in the
northern part of the State on the lakes you can't have outhouses anymore and lots and this that and they're all
going to mound systems up there. And there are some right essentially on the lake and the State apparently says
that's no problem. The mound systems are going to work. Do you have that much faith, do you have as much
faith as the State does in them?
Steve Kirchman: If they're properly installed and they've been in use for 20-25 years in this state and other
states and if they're properly installed, properly maintained, they'll work as well as any other on site sewage
treatment and as well as, if not better than any municipal sewage treatment.
Councilman Senn: According to present thought. You know and that gets to be the real amusing part here
' because I went through this up north and we were required to move the system or put in a closed system and we
could have put it in closer to the lake if we had put in a closed system. Well now the State says, closed
systems, which they were saying at that time were the cat's meow, are the worst thing in the world. And you
keep looking at this and again it's proximity to the lake and I just, who's going to guarantee that the residues
aren't going to end up in the lake and I just have a real hard time with that.
I Mayor Chmiel: Richard.
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City Council Meeting - January 10, 1994
Councilman Wing: Well I guess one thing Mark has said does trouble me is, when the entire lake and the entire
city on the lakes has gone to sewer, a metro sewer system, why would we want to grant a variance to put in a
septic system? I mean if this maybe could fit in on it's existing land but to have to even go further to grant ,
variance, I think you've got a good point. We're bending the rules for something we don't want in the first
place.
Councilman Mason: Well I guess I don't see granting a variance, in a hardship case, as a matter of bending the ,
rules. I see what you're saying but there's a special set of circumstances here unlike anything else on the lake.
Mayor Chmiel: Okay. Any other discussion? If hearing none, I would entertain a motion to also include as
item 14 some additional soils borings of the recommendations for the conditions as such.
Councilman Wing: And 1 would like to add number 15 would be a rather thorough study of the highway and
access that that lot may create in that location. There's no shoulders there. There's no turn off whatsoever.
You have to turn in a traffic lane. I don't think that's appropriate.
Mayor Chmiel: We just recently corrected a location there by putting in a service road because of a car being
hit so that does have some.
Councilman Mason: Yeah I wonder Dick. I think that that's something that has to be looked at. I wonder if ,
that should be tacked onto this one. Just because they're separate issues. I don't know.
Councilman Wing: Yeah, I don't know how to handle that. I would yield to whatever Council feels. '
Councilman Senn: The question is, where else can it be tacked on?
Councilman Mason: Well I don't know. I don't know. I'm just throwing it out. '
Mayor Chmiel: I think too though, putting it down as a separate additional item, it should be looked at and that
way it's going to be covered.
Councilman Wing: But the soil borings don't relate to that septic system. They relate to the building so that's
really a separate issue also.
Councilman Senn: Did I understand your's to be a motion Don?
Mayor Chmiel: No. I just added one item to that. For additional discussion. Roger.
Roger Knutson: Just for a point of clarification. If this is granted, staff and myself have to implement it. When
you say look at the access, the highway access issue. I'm not sure. Do they have the variance and you want
staff to look at the highway access issue, and what if we find the highway access is bad or good or indifferent?
Do they still get to have the variance?
Councilman Mason: Well I guess that's why I made that comment earlier. This is dealing with the mound
system. They still have to get building permits. They still have to do this. They still have to do that.
Councilman Senn: But none of those other things require= them to come back. When they get a permit they do.
To get a building permit they do. They don't have to come back to Council to have conditions attached and..
i City Council Meeting - January 10, 1994
Mayor Chmiel: If they comply with all conditions they don't have to come back, that's right.
Councilman Senn: I mean that's not a condition that could be tacked on at that point if that's a legitimate
concern.
' Roger Knutson: I'm just trying to understand what you want done. Do you want staff to look into the access
issue independent of this? Just look into it and see if a design solution should be, or something should be done
there?
' Charles Folch: In terms of access, really the jurisdictional authority on granting whether it would be acceptable
or not is MnDot. I guess if the applicant is able to grant, or get a permit grant from MnDot on their trunk
highway, I'm sure if MnDot is concerned about it, they probably attach some conditions in terms of lanes.
' Acceleration lanes. Deceleration lanes. Things like that. But if they were able to acquire a permit from MnI)ot,
I mean that pretty well addresses the access issue from that standpoint. They're the jurisdictional authority on
that trunk highway.
Mayor Chmiel: Okay. But on either of those for acceleration or deceleration. That would be MnDot's
responsibility. Who's cost is, who gets the cost from that particular acceleration lane?
' Charles Folch: I believe the applicant for the access.
Mayor Chmiel: Okay.
Councilman Wing: The other option would be to table this until we have that information and the soil borings
completed as requested.
Councilwoman Dockendorf. I'd be more comfortable with that.
Mayor Chmiel: I'm sorry, I didn't hear you.
' Councilwoman Dockendorf: I think it's worth, there are enough outstanding question for me that I would also
like it tabled so we could look into those two issues.
1 Steve Kirchman: Could I have another point of clarification Mr. Mayor?
Mayor Chmiel: Go ahead.
Steve Kirchman: On the soil borings, were you concerned about soil borings for the septic site or for the
structure?
Mayor Chmiel: I'm concerned for the septic as well.
' Steve Kirchman: Normally, before we approve the site, we do get additional borings and if borings are suitable,
then they get a permit.
Mayor Chmiel: Okay, but I want to make sure those borings are taken and that's why I'm putting it as an
' additional condition.
10
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City Council Meeting - January 10, 1994 1
Councilman Senn: And by tabling it, are you asking ... come back to us? I
Councilwoman Dockendorf. I guess that's a good clarification Steve because I mean if the additional borings ,
are going to be done in order to build, to get the permit to build, then I don't have any concerns about the
permit. Or excuse me, the variance. If those additional borings are a concern whether it's buildable or not.
Mayor Chmiel: I guess my concerns with those, even though you take additional borings, you want some in and '
adjacent to what's there. What my concern is so that the additional, if any additional pollutant comes from that
mound in itself, it's going to be going directly into the lake. From an environmental aspect, that's my concern.
So I want to make sure there's soil borings taken within a 10 foot interval on either side of that, just to make '
sure.
Councilman Senn: Well this may die but I'm going to move. '
Mayor Chmiel: Just a minute. Before you move, the applicant would like to say something. Would you lice to
come up to the podium?
Jeff Papke: Just a quick point of clarification. I know when Sharmin showed the plat before, there are two sites ,
that are required as part of that...and I didn't know if everyone was clear on that. And the initial borings that we
did were with a different layout of the property and Steve was there and did witness those. He did relay those
out a little differently to provide a better access when we knew where our house would go and his comment was,
before we would approve anything we'd have to retest those areas. Actually before the permit could be issued,
it'd require retesting the soils. And in terms of the structure and borings for that, that would be our intent and
that's one of the provisions.As that there would be soil borings done as far as the structure is and were in
agreement with that.
Councilwoman Dockendorf: So let me understand. The borings that were done aren't any good anyway?
Jeff Papke: No, they were okay.
Councilwoman Dockendorf: No, I'm saying but you've changed your footprint so. ,
Jeff Papke: Actually one of them is in the existing 50 x 100 foot area and the back -up site we moved slightly
and we would have to have that one tested. Before a permit would be granted. r
Mayor Chmiel: Who do you have do your soil borings?
Jeff Papke: Ron Hill.
Mayor Chmiel: Okay. '
Councilman Mason: Well I think the access issue is out of our hands, isn't it?
Mayor Chmiel: It's MnDot's responsibility, that's correct.
Councilman Mason: And it sounds to me, Don with what's just been said about that, are you okay with
additional borings that Mr. Papke's planning on making? '
11
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City Council Meeting • January 10, 1994
Mayor Chmiel: Yes. As long as they're going to cover some of the areas that are concerned, my concerns are.
Just like again going back to County Road 17. Took some borings and all of a sudden started digging and there
were the problems.
Councilman Mason: I will move approval of Variance Request #93 -9 for 75 foot wetland setback for the
location of a septic system with the conditions as stated in the report. Including the Building Official
recommendations which do talk about the two borings on each site sewage. Sewage treatment site.
Mayor Chmiel: Okay. Is there a second? Without a second, I think it's going to die. Is there another motion?
Councilman Senn: I'd like to move that we uphold the Board of Adjustments and Appeals decision to deny the
variance on the basis that the property should be developed when sewer and water becomes available to it. And
that we should stick to our policy and not allow a septic system within this close distance to the lake.
Councilman Wing: I'm going to second that Mr. Maya and that second is, with these other issues in my mind
also. It's not a clear cut building site and I'm going to go along with Mario on that.
Mayor Chmiel: Okay. Some discussion. Roger. Where does that put the City? In what position by making
that recommendation.
Roger Knutson: It would be a decision. When you deny anything like this, I think our past policy has been to
direct myself to prepare Findings of Fact. You need a record of...so the motion would be to direct me to prepare
Findings deny it. I'm not telling you how to vote but that's.
Councilman Senn: So amended.
Mayor Chmiel: I would suggest that we do that only from a standpoint in the event that the applicant or the
property owner were to come back at the City with a suit, this would give us some substantial backing as far as
that's concerned. We have a motion on the floor with a second. Any other discussion?
Councilman Mason: This is a lot of record isn't it?
Mayor Chmiel: Yes.
Councilman Mason: And in the past if we tell somebody that a lot of record isn't buildable, how's the city
culpable?
Roger Knutson: The purpose in granting a variance is to grant a deviation from standards when if you do not
grant that deviation it deprives them all reasonable use of the property. That's what a variance is all about. If
you deny someone all reasonable use of their property, indefinitely, you could have a taking. When can you
deny someone all reasonable use of their property? I could spend hours trying to simplify this point but in a
nutshell, if you can demonstrate that the proposed use will cause a demonstratable pollution to the lake, for
example could cause ... harm, then you have a basis for denying the variance. The courts look very carefully at
any decision that says you can't use your property. Very carefully.
Mayor Chmiel: Okay.
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City Council Meeting - January 10, 1994
r .
Councilman Senn: Again I don't, and Michael again. I guess I want to just clarify my motion. I'm not saying
be able to use it, but there's a right time to be able to use
they shouldn't use their property. I think they should
it. And I'm going to liken it to a lot of other discussions we've had out on Highway 5. In terms of land use
it. The MUSA line
and other things that are happening. 'There's a right time for it and there's a wrong time for
in lot of things. I think a variance is the same type of a
governs when the right time is and a wrong time is a
tool. Can it basically say this is a right time or a wrong time?
to
Roger Knutson: ...to a certain extent yes, I would agree with you. far a'zeaso�� time Not
You can
develop the property today. At least that's my. position if that
But for reasonable length of time. When I send out the Findings to you,
'
forever and not indefinitely. a
passes, I will feel more comfortable explaining this in some detail in a letter to you.
Mayor Chmiel: Okay, and with that motion and with a second, are you both acceptable to the Findings of Fact?
'
Okay. I will call the motion and the motion is seconded.
Councilman Senn moved, Councilman Wing seconded to direct the City Attorney to prepare Findings of
75 feet from the edge mod.
Fact denyin the Variance Request #93 -9 to locate a septic system
Dockendorf voted in favor. Councilman voted in
Councilman Senn and Councilwoman
Mayor Chmiel and Councilman Wing were silent. The motion carried with a vote of 4 to 1.
opposition.
r
Mayor Chmiel: It s been called as a motion with tw o ayes and three abstentions which indicate as an aye vote.
Councilman Mason: No. I misunderstood Don. Let's repeat that again. Or let's go over that again. I blanked
out.
Mayor Chmiel: Alright. We have a motion on the floor with a second. The question was called. All those in
favor say aye.
Councilman Senn and Councilwoman Dockendorf said aye.
,
Councilman Mason stated nay.
Councilman Wing: I suppose it's too late for any discussion.
Mayor Chmiel: Yes it is.
Councilman Wing: If not, I'll abstain.
thing here as far as I'm concerned. With the one no and two ayes and two
Mayor Chmiel: It's not the easiest
,
quiet votes indicate that those are ayes.
Councilman Wing: Mr. Mayor, I think it's really important that my silence really is with concern. I really
had some very valid points. I think the Council brought up valid
support Mark's position but I think Mike
points. The further movement on this issue is really going to get scrutiny. It's a very awkward piece of
on the lake and access to the
'
property all around and that we're having a variance for the septic system right
road and the soils.
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City Council Meeting - January 10, 1994
Mayor Chmiel: And I think by the vote it's indicating that to the Proposed person going to build on there for a
single family residence. So there's a lot of considerations that are going to be looked at and continued to looked
at an d hopefully the building department is going to follow through with that. Okay, that motion is passed and
we'll move onto the next agenda item.
COMPREHENSIVE PLAN AMENDMENT TO CHANT LAND f AND CONCEPTUAL
ARBOR DRIVE SPILNNAnr.n Vvnr,icr ,,.,._. -• -- - -- - -
public Present:
Address
Name
Joe & Sue Fiedler
3121 Dartmouth Drive
Jim & Jo Ginther
3131 Dartmouth Drive
3630 Virginia Avenue, Deephaven
Joe & Eileen Boyer
3110 Dartmouth Drive
Joleen & Rob Roy
603 Lake Street, Excelsior
Lee Clark
3201 Dartmouth Drive
Tom Mena
3231 Dartmouth Drive
Mary Jo Moore
Boyer Building Corporation
John Blumentritt
Boyer Building Corporation
Bob Boyer
Kate Aanenson: The Boyer Corporation is requesting to rezone 13.47 acres of property for approximately 26
zero lot line or clustered single family developments. In order to make this project occur two things are going to
have to occur. Rezoning and a Comp Plan Amendment. Currently the way the ordinance reads the in ordinance
allow for a cluster of this type of development, the Comp Plan amendment is required because
requires... single family, the RSF zone the smallest lot size would be 11,000 square feet• Only the medium
density area are cluster developments allowed. So again ... a Comp Plan amendment would be required. Staff
was reluctant to ... medium density at this point. We felt it would be more ...to do a Comp Plan amendment. But
in doing that you open up the application on the 5,000 square foot lots, which was a coat t on the north
Commission had, which we'll get into later. If I. could briefly walk through the project .. bordered
by Highway 7. It's kind of—road topography and it has this unusual dredged channel that comes up through the s that
property. Instead of having significant... through a private street. The development homes are eaee '17tey
mentioned would probably be similar of may be slightly larger than the existing
range, entirely completely finished up to 3,000 square feet. A ... the type of homes that are found.. There are
two wetlands on the site. One an ag urban that runs along the existing channel and the other is a natural
wetland. There are some poor soils in the area around the channel, which again
showed a connection, and this is a
would need further study on to define whether or not those ... The original plan
concern of the neighborhood. The connecdon of Dartmouth Drive over to T WO ho the site, f It that it'd t at that
with the staff and the topography going across the channel and the degreg
probably be better to leave the existing access off of the Arbor/Dartmouth Drive which again is a concern of the
neighbors going out. There was another issue that the staff investigated that wasn't acceptable to the applicant
and that was using the existing older home on the site. Just off of Dartmouth Drive. It does have direct access
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