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6. Schmids Acres Non-Conforming Recreational Beachlot CITYOF CHANHASSEN ' 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937 -1900 • FAX (612) 937 -5739 ' Action by Ctly Adminlsttetnt Endo sed ✓ 7 Ar MEMORANDUM Modified Reiscted _ a 3 -r%3 Date Submitted to Commission ' TO: Planning Commission Date Sub' fitted to Council FROM: Kate Aanenson, Senior Planner (o - a k - 3 1 DATE: May 27, 1993 1 SUBJ: Schmids Acres Non - Conforming Recreational Beachlot BACKGROUND This item was originally heard at the March 17, 1993, Planning Commission. This item was pulled from the City Council agenda because of complaints that not all of the lake shore owners were notified. Notification was attempted for all lots included in the original Schmids Acres and Lake Minnewashta riparian owners. ' At the March 17, 1993, the Planning Commission recommended approval of the non-conforming g PP g beachlot for Schmids Acres with the following level of use; 10 off - street parking spaces, 1 dock with 1 boat allowed to be docked, 1 canoe rack and 1 boat to be stored on shore. SUMMARY The Schmids Acre Beachlot dates back to 1914, when Schmids Acre Subdivision was recorded. ' There are approximately 25 lots in the association, not all of the lots have homes. The beachlot is 13,000 square feet in area and has 50 feet of lake frontage. The beachlot does not meet the minimum requirement of 200 feet of lake frontage, nor does it meet the 30,000 square feet of area. A survey of the beachlot was done in 1981, and it showed that there was one dock, 45 feet in length, and 1 boat on the shore. There were no boats docked or moored at the beachlot. The association is requesting continued use of the dock with 1 to 2 boats being docked, one j canoe rack, 2 boats being stored on land, and continued use of the parking at the beachlot. The PRINTED ON RECYCLED PAPER • 1 1 1 A wcART B /L'X'HT�AK Qx 1 Y' �Q( �Qf 1 QY 1 Q 8 g 1300 LA�1" 7]7 � I. -- tip- E ::I r :1. " ial �, /lp ' ; '..�:- 11= it i V II 4. 2 " s I 1.""" m irt.,....t. :. - �� rw. • S I ::_ �� 40 _0, tat,. _ IN ► — MIT u+w � � ��v , 'f� ''��'i Iiiiiim� _��h�vv... ` AN F,rEZ � r CT li .0... /b � :-... �� ai . /' • '6600 : y� ' � � 0 ,!q... kr.,,, �9 C r j \ ^1 III // , • � � QLSr n :!!s l C LAKE 1 ' if 17• • i \Ai :.4i ii: 51 7 6.- \� )� , 9 � ! .� y ` LAKE �,, / � ; MI N N E W A S N T A \ ssoo IV . , REGIONAL , soon I _ / t� PAR, ' • . f , - ` ` ` 'PIN a RRRR /SOR 5 I Ms II Cr.'at' ff 7:00 0 w ) c - � �� I 0 ea r r �i,� r 7300 v s ,,, ; A / RI a 4 4 • , IPI 1400 II I , - +o , Din[ �A Q ii� dl �„ z 7500 — A �� ii I.. 1 Iry WON � ;( . r� .! ali I ', Mir 7600 .,�\� ^\ •� - /��1�i Pi 7700 a III ENO ` 7600 - - / A I E — Q' I 1000 1 % , WNW .:MO x.t ter R ORC ��.►i _ 17. .300 ,` ' Migelkilit MO Schmids Acres Beachlot May 27, 1993 Page 2 1 association is asking for a level of use greater than the level of use in 1981, based on the inventory done by the staff. Adjacent to the beachlot is a creek that is under the jurisdiction of the DNR. The beachlot is proposed to have a boat launch. It appears to staff that there was not a boat launch in 1981. Gary Carlson, a member of the association, has stated that when the City secured a utility easement through the beachlot, an agreement for maintenance was given by the City. The Engineering Department has stated that there was never an agreement to maintain the beachlot as part of the easement acquisition. Ken Durr who is a member of the Schmids Acre Association is opposed to the granting of the non - conforming recreational beachlot permit. Through his attorney, he has provided a letter outlining the reasons why the non - conforming permit should not be issued. Three additional letters from members of the Schmids Acres have been provided to testify as to the level of use of the beachlot. The Gary Carlson association is requesting continued use of the dock with 1 to 2 boats being docked, one canoe rack, 2 boats being stored on land, and continued use of the parking at the beachlot. Ken Durr who is also a member of the Schmids Acre Subdivision is requesting that 1 the non - conforming beachlot not be issued. PLANNING COMMISSION UPDATE This item was discussed for 2 hours at the June 2, 1992, Planning Commission meeting. At the meeting, the Association was represented by an attorney, Mike Melchert. Ken Durr, who is a member of the association, also had an attorney representing him, Tom Owens. Much of the discussion centered around the security and limiting the access to members of the association. The Planning Commission recommended that the association have one dock (no boats docked overnight), one boat on land, and one canoe rack. Although it cannot be a requirement of the non - conforming permit, the association could post a sign identifying the beachlot and place a gate for security, if the beachlot is given a non - conforming permit. 1 Mr. Durr's position is that the legal description for the beachlot falls within the legal description of Lot 1, Schmids Acre. There were a lot of other issues that were brought up by both parties: Carlson and Durr. Staff would like to remind the City Council that the permitting process is to determine the level of use in 1981. The other issues that are being raised which are questions of legal interpretation is outside the purview of the city. 1 ATTACHMENTS Acre Beachlot Application. 1. Schmids c e ea pg lication. 2. Staff Inventory of Schmids Acre Beachlot. .1 `' Schmids Acres Beachlot May 27, 1993 1 Page 3 3. Letters from Association Members I 4. Letter from Tom Owens dated May 27, 1993. 5. Letter from Michael Melchert dated June 2, 1993 6. Planning Commission minutes dated June 2, 1993. 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 NON - CONFORMING RECREATIONAL BEACHLOT PERMIT SCHMID'S ACRES ASSOCIATION 1 Planning City Schmid's Acres Association Commission Council 1 1981 Survey Request Recommendation Approval Lake Minnewashta 1 Number of Lots 25 Size, square feet 13,000 I Shoreline 50' 1 Motor Vehicle Access yes yes yes I Off- Street Parking 0 10 none Boat Launch None yes no 1 Buildings None I Seasonal Dock None 1 at 45' 1 at 45' Diagram 1 Canoe Racks None 1 1 Boats on Land 1 1 1 1 Boats on Dock None 1 -2 none 1 Boats Moored None not requested Swimming Beach Allowed by ordinance I g Y Marker Buoys None 1 Swimming Raft None I Miscellaneous 1 1 1 .1 il RECREATIONAL BEACHLOT INVENTORY 1981 1986 1991 II Schmidts 8 homes / 25 lots II Lake Minnewashta 13,000 sq. ft. 1 50' width of shoreline Motor Vehicle Access yes yes yes II Off - Street Parking no no no Boat Launch no no no II Permanent Buildings no no no Setbacks II Temporary Buildings no no no Portable Restroom no no no II Picnic Tables no no no Grills /Campfires no no no 1 Seasonal Docks no yes 1 Approximate Length no 36' 45' II Canoe Racks no no no Boats on Land 1 no 1 II Boats Moored no no no Boats Docked no no no 1 Swimming Beach no no no Marker Bouys no no no 1 Swimming Raft no no no Comments: poorly poorly poorly II maint. maint. maint. 1 1 1 1 1' CITY OF CHANHASBEN It 690 COULTER DRIVE CHANHASSEN, MN 55317 1 NON - CONFORMING RECREATIONAL BEACHLOT APPLICATION HOMEOWNERS ASSOCIATION: \J (‘ C rw ► C � T 1 / C r c T r cr cT CONTACT PERSON: V' C� • y L .a v--1 SO /./ \ r S 0.'v c5 A S 5 '` ADDRESS: 3 s'3 I w 6 7 ^-' 5 1 TELEPHONE (Day time) c/7 `/ 335 `f TELEPHONE (Evening) : Please re rovide all requested data consistent with what existed in P � the summer of 1981. 1. Number of homes in the Homeowners Association • 11 '5 A pr`o A 2. Length of shoreland (feet) .50' 3. Total area of Beachiot (in square feet) • 1 3, 000 s/ 4. Number of docks 6. Length of dock(s) S n ' ^ f d � /4 er r k 7. Number of boats docked / 8. Number of canoe racks 1 9. Number of boats stored on canoe racks 1 10. Number of boats moored i.e. canoes, paddle boats, sailboats. AJ O /lJ 11. Number of boats on land 1 On a 1 12. Swimming beach Yes )( No Buoys Yes No 13. Swimming Raft Yes No 111 14. Boat Launch Yes X No 15. Motor vehicle access Yes X No Number of parking spaces D — U /4 e' p x 1 16. Structures, including portable chemical toilets: 1 1 1 $' r pAA .1 i NON- CONFORMING RECREATIONAL BEACHLOT PERMIT SCHMID'S ACRES ASSOCIATION I Planning City Schmids's Acres Association Commission Council 1981 Survey Request Recommendation Approval march Il I493 I Lake Minnewashta Number of Lots 25 1 Size, square feet 13,000 I Shoreline 50' Motor Vehicle Access yes yes yes 1 Off - Street Parking 5 -6 10 10 1 Boat Launch None yes no Buildings None 1 Seasonal Dock 1 at 45' 45' 45' Diagram I Canoe Racks None 1 1 1 Boats on Land 1 1 1 Boats on Dock None 1 -2 1 I Boats Moored None not requested 1 Swimming Beach Allowed by ordinance I Marker Buoys None Swimming Raft None 1 Miscellaneous 1 1 1 IF RECREATIONAL BEACH LOT SURVEY EXISTING CONDITIONS ', Date: 4 )014,0410L 1 Name of Home Owners Association: !\t Nuxnber of Dwelling Units: S II Lake ._ .� I Approximate Size of Beach Lot: ISI 1 - Width of Lot at Shoreline: 4 I Motor Vehicle Access: Yes: 1/ No: Off- Street Parking Areas Yes: No: V Approx. Size of Parking Area: ' Boat Launch: Yes: No: Permanent Buildings: MONA - 1 Approx. Setback from Lake: w ^-- "` Temporary Buildings: MM. 1 rortable Restrooms: Yes: No: V II Picnic Tables: Grills /Campfire Sites: M' 1 permanent Docks:, 4 &L Approximate Length: "" -milm " - 1 Seasonal Docke: M{9 Approximate Length : .----- " --m- - _ Canoe Racks :_ I (# of spaces) # of Boats Stored on Land: i. 0.d.mtre # of Boats Moored at Buoys: IVItiNk t # of Boats Moored at Docks:_ /MU 1 1 .1 Swimming Beach: Yes; No: V Marker Buoys: Yes: No: V Swimming Raft: Yes: No: V 1 Approximate Siz - : l 4 • Comments: talimr " V 1l 1 1 _ 1 1 1 1 1 1 1 1 1 , • 1' 1 Albrcr R Se 4,niel , s e we l/ s 15.. c /oor �' /f0//e v i. At, / / r, know a / /mee 4y /�e.re pesenfe, /./i.rf .re, /Y, / /m SeIn..d,, Evu S! Anna � /Y/ / Lo t4 ise J e A Nc/,n qn n. ✓. 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IN tit li . 4k MINNEWASH A . , C - Ei' tr : ar A , ..... ...! 1, , 4 1 " AC ES / FIRST F_ 1 2 1 ' r------ __42.- . -• 3 / 14 .... .•• ,,Nss, .. % 1 EXHIBIT C 1 1 / ' : Jr � 1 1 TIMAJR? i/t ...phi e 6 Sec S T iii /✓ , . 1 � I rh. Wok: b s', i Lof S w 2 orm boot 1 A�• I • f; 4115V 61 41 f O' S • Lot o ' s ' .rte .7T o r f , ' 'fir i • I tJ�. r • AFJJ Pot Car • w'�r l -1 / r • b •. I Lot 8 01 et t , 1 L((_� Y i �1 , Lot' 7 it 2 z ' d �'.e Rp �O ■ NI i c II ..r .iLz �r 220.,. , r � .� t 4 L 2 is‘'' ' SCIL*1ID' S ACRE TRACTS X43 Z I F r I y �o � [ I ' kb. \ I 1 • j 1 i i} � Lµ K .\ as I 14 1 - • � B EXHIBIT ' 1 1 I il MELCHERT, HUBERT, SJODIN & WILLEMSSEN I ATTORNEYS AT LAW 121 WEST MAIN STREET CHASKA OFFICE PAUL A. MELCHERT SUITE 200 448-3121 LUKE MELCHERT P.O. BOX 150 WATERTOWN OFFICE DAVID ITHESJ ODIN BERT KEITH E SJ WACONIA, MINNESOTA 55387 955.1404 I MAC R. WILLEMSSEN TELEPHONE (612) 442-5155 NORWOOD OFFICE R. LAWRENCE HARRIS FACSIMILE (612) 442-6166 467-2976 TIMOTHY J. LOOBY BRADLEY W. SOLHEIM J. MICHAEL MELCHERT June 2, 1993 BAND DELIVERY 1 City of Chanhassen 690 Coulter Drive I Chanhassen, MN 55317 Attn: Senior Planner, Kate Aanenson 1 City Attorney, Roger Knutson Planning Commission Members Re: Application by Gary Carlson for Nonconforming 1 Recreational Beach Lot Permit Dear Ms. Aanenson, Mr. Knutson and Commission Members: 1 Our firm has been retained by Gary Carlson to represent him in regard to his application for a nonconforming recreational beach lot permit which he is applying for on behalf of property owners I within the plat for Schmid's Acre Tracts. This application for permit was originally heard on March 17, 1993 and the Planning Commission recommended approval of a nonconforming beach lot permit I for Schmid's Acres with the following level of use: 10 off - street parking spaces, 1 dock and 1 boat allowed to be docked, 1 canoe rack, and 1 boat to be stored on shore. Although this meeting was I apparently held after proper notification was attempted, the matter has been reset for June 2, 1993 because some property owners complained they did not receive notice. One property owner, Ken Durr, now opposes the application. This letter is submitted in I support of Mr. Carlson's application for the permit and in response to the May 27, 1993 letter by Mr. Durr's attorney, Thomas Owens, opposing the permit. 1 POINTS 1. There Is No Dispute That The Lake Access Exists For I Schmid Acres. A copy of the 1914 survey on the Schmid Acre plat is attached for reference as Exhibit A. This survey clearly shows a fifty foot wide strip of land I designated: "Reservation ". The legal description on the plat, attached as Exhibit B, clearly states that this reservation is for the private use of the heirs and I assigns of Benedict Schmid. Although Mr. Durr's attorney in his May 27, 1993 letter argues that the rights between the easement holders are somewhat unclear, there is no 1 I dispute that the easement does exist. Further, any alleged ambiguities in the "Reservation" do not affect the issue of whether or not the permit applied for should IF be issued. 2. The Planning Commission's Recommendation of March 17, 1 1993 Reflects Historic Usage Except that Boat Launch Rights Should Also be Allowed. The Planning Commission's recommendation of March 17, 1993 is for the following level of use at the property at issue: 10 off street parking spaces, 1 dock and 1 boat allowed to dock, 1 canoe rack, and 1 boat to be stored on shore. Further, Gary Carlson is now also requesting that a boat launch be permitted based upon additional evidence to be presented at the July 2, 1993 meeting. The recreational beach lot inventory summary for years 1981, 1986, and 1991 which is attached for reference as Exhibit C shows that motor vehicle access has always been allowed to the subject property, that there has always been a seasonal dock at the property, and in addition that in 1981 and 1991 boats were stored at the landing. In addition, the letters attached as Exhibits D and E are from former residents of the Schmid's Acres area who used the property at issue. The letter attached as Exhibit D was written by Al Gelschus and he states that the property at issue was always used by himself and others "for many recreational activities, including launching of small boats, canoes, etc." Mr. Gelschus relates that this use occurred for nearly 30 years. The letter attached as Exhibit E is from Willis H. Friberg who is also a former resident of the Schmid's Acres area. He states that from 1959 to 1987 he and his neighbor used the easement, built a dock, and launched their boats from the area. Further, Exhibit F is a list of witnesses who are anticipated to testify at the June 2, 1993 Planning Commission meeting. These witnesses will also testify as to the use of the property at issue for the uses which are now requested in the nonconforming recreational beach lot permit. 3. The Use of the "Beach Property" has been Continuous. City Code Section 20 -73 (a) provides that if a nonconforming use is discontinued for the period of one year, "the use of the same shall thereafter conform to the regulations of the district in which it is located." 1 1 The witnesses anticipated to testify at the June 2, 1993 Planning Commission meeting will show that the property at issue has not been abandoned during the course of the past year since the Chanhassen City Council adopted ' Ordinance No. 163 (Sec. 20 -79) requiring all nonconforming recreational beach lots to obtain permits. ' 4. Pursuant to Section 20 -79 of the Chanhassen City Code a Nonconforming Recreational Beach Lot Permit Should be Issued. Section 20 -79 of the Chanhassen City Code provides at subpart(b) that a permit "shall be issued" following receipt of satisfactory proof concerning the nature and extent of the legal nonconforming use as it existed on or before January 18, 1982. The evidence set forth in paragraphs 2 and 3 above and to be presented at the June ' 2, 1993 hearing shows that the Planning Commission's recommendation of March 17, 1993 has adequate historical basis and in addition that a boat launch for small boats should be allowed. Pursuant to this showing, the permit ' requested should be granted. 5. Kenneth Durr had Made Absolutely no Showing that Granting ' the Requested Permit Would be Contrary to the Zoning Code. ' Although Mr. Durr's attorney in his May 27, 1993 letter states that granting the requested permit would be contrary to the purpose of the zoning code, he cites absolutely no factual support for this position and this ' argument by Mr. Durr should be disregarded. 6. The Request for Off Street Parking is Appropriate. 1 a. City code Section 20- 118(b) provides: "All parking areas except those serving ' one and two family dwellings on local streets shall be designated so that cars shall not be required to back into the 1 street." Kenneth Durr argues that off street parking is ' inappropriate because there is no room to turn vehicles around on the property at issue. This argument fails for two reasons: First, Mr. Durr has not shown that County Highway No. 15 would be ' considered a local street pursuant to the ordinance. Second, pictures to be submitted to the Commission on June 2, 1993 prove that it is ' possible to turn a vehicle around in the easement, and to park 10 cars at the landing as was previously approved by the Commission. The IF photographs further show that the area is IF adequately screened by trees and shrubs. As for the argument that the parking would violate the regulations of the Minnehaha Creek Watershed District, Mr. Carlson has no reason to believe that would be the case. Even if this was true, the issue is not relevant as to whether or not the permit should be granted. Conclusion For nearly 80 years home owners in the Schmid's Acre Estate have been using the property at issue to access Minnewashta Lake for their enjoyment. Now, Ken Durr seeks to limit the rights of these people for apparently no reason other than to benefit his own property. This is manifestly unfair. The above points and the testimony to be presented at the June 2, 1993 hearing show that the nonconforming recreational bench lot permit should be granted. It is respectfully requested that the Planning Commission renew its recommendation to approve a nonconforming beach lot permit for Schmid's Acres with the following level of use: 10 off street parking spaces, one dock and one boat allowed to be docked, one canoe rack, one boat to be stored on shore, and boat launch rights for small boats. , V- + P •u s, ' J Michael Melchert 1 JMM /cw cc: Gary Carlson ' /U /mike /carlson.ltr 1 01 \\:,,,,. ■ k c 1 - &s e A .... , . ..., , ■ , ••• 7 Lot- L9 r.c) 4 1 i f ----- q 71/ st sk I f 40 .., o. iv k ' V O •( 7 4 ... , ... / 1 ,-... 0 - LoZ 2 /0 c : I 0 • ,. tp'.' / ., % • ‘.1 .. . . \ tl . 1 -c- -4, ...), .„ -1, / / 4 . 4 1• L o iL / ‘ID •• 1 ..- • I I i • I I ! 1 IIIII‘ I • I 1 - 4- t>.- n i ' _, 5 ....- trr" -. .1 - - .....1.-1-A, AI . billi+= if 1111.e - OP. 3ZEGIS'L OP DEEDS, , itt •MIN/NRSOTA , CAliVIR .. . 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Sand6 % /Bence Ivor /h a /oy safe! sec. inn �/ /he oce *27 ,/,; 4749 eLey e E e s Ea cr/o ff Scu ea$ /et& vcunclay /The of A6ee M and S/ L. !9 R. A l9 fi t o! r y , (869) r // (/6� LounaCay fee/ it. //!e sou../4 �ine o{ // /wa 1 cL Rand: t`E/ice 7✓or f Said Aryl /of,Yy / { 7d 74e sec /inn Ii!!e arxL 77/ace o/' Ge ; cCtld !Ye b y ded,"cdfe 74e Road' a/sL catf / blaf. /f'e res eror foi /j�.e /.hale use of e /deirr f � s 11c use far ever //e same as s4ow /r on!/ie .xervfi /+mays, J ,1 E �+ l7fle Gfe,rcoe� ,6 r'(i C.t / •! /cb % q TrIll «,� w/de al , . rv�s/ei 1 o, �.ze , u.�s 14/7)/ 7e 3 -y „CII..0 7`t,:lY C"SS�nr co S /r� of / / :/t Wi / /ICSSor/ csc /'rese,>isNe to L e /l.�in/dcrya,r /i/a a ee /drat �ed Reserve old /e accedd y- ,n „J "ij/ /xreuilfo - our Acnds u,/c! Lleals.• I I 1 • f V l 1 11 RECREATIONAL BEACHLOT INVENTORY 1981 1986 1991 1 Schmidts 8 homes I Lake Minnewashta 13,000 sq. ft. 50' width of shoreline Motor Vehicle Access yes yes yes I Off - Street Parking no no no Boat Launch no no no II Permanent Buildings no no no Setbacks Temporary Buildings no no no Portable Restroom no no no I Picnic Tables no no no Grills /Campfires no no no I Seasonal Docks 1 1 1 Approximate Length 45' 45' 45' I Canoe Racks no no no Boats on Land 1 no 1 I Boats Moored no no no Boats Docked no no no I Swimming Beach no no no Marker Bouys no no no I Swimming Raft no no no Comments: poorly poorly poorly I maint. maint. ' maint. II 1 II 1 U L ; k I - 1 - C9 1 4 -14 -93 1 At Ge.2schus 1 5255 8nyantwood Dn. #308 Map.2e pta.in, MN 55359 To Whom it May Concern: My wide, ch.i tdnen and I ionmen.2y nes.ided at 3141 Church Road in the Schmidt Acres area of Chanhassen Lon nean.2y 30 years. The easement ion that area was atway6 used by u6 and others for many necnea.t.i.onal activities, ,inc.2u- ding £aunch.ing of 4ma.2.2 boats, canoes, etc. We enjoyed na.i.s.ing our iam.i..2y in such a beaut,i necreat.i.ona.2 area. It wowed be a shame to change any use of the easement area now due to past precedence. We miss the Chanhassen area and wish the best to ate who curnent.4 reside there. S.incenety, A£ GeJschus 1 1 1 1 1 1 1 1 10/111°1 1 1 G€- a o, / S q3 1 1 — O 41 i ; 1 ,.. Cc : �_ O c ©• , , __ o.c et:,, 66 a " C4 -" C :44,4 Li — ---Wer'21/1.1.-pc441) i t: ,,,,,,,,,- f_. .-- - 1- a h .r ,- . `rte -.. :------( e: . . . . . 4 4 7 t e 4 Z - 4,7 "44 27-e;x..t.z.e4ificatto.-- sie-,2-(4.., Azi-ziaid ,- - 1 d!? '&Z -, /`7/.2r a.2 3 ,8.5 /tom /.�. S . 1 n 1 L. . -,-z I &?-e., jr4.,:le 6c. .44.4 15 t t / 9` - ■ --- 1 -42, va • ..�.� 9.4.e.., Y.60 Z-L . dam 1 . r--7 6c-z►nZJ , a deA-e.,0 1 . ,,,....," - c ,.. ' Ag-Ivi.(-7-7 ,(cc- j44- 24-e, .4t).-1.4.4 1 c o c c E c ( -1 o__. ••—( O )• - '• ( 1 L l �- i 3a c S 9a" 0. 771 e , .V i2t`w 2 • 53 6 F 1 CC Q ) i4c5 -6658 1 1 ,--- X t ( -4- .....__----- ---- (n, 10 It WITNESSES ANTICIPATED TO TESTIFY AT THE 1 CHANHASSEN PLANNING COMMISSION JUNE 2, 1993 MEETING 1 Gary Carlson Terry Toll 1 Dale Keehl 1 Clint Wager 1 Dale Collens 1 Craig Miller 1 Tim Latterner 1 k 0 4 E I 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 71r1lap0 - J 'fiTDVDD: Ys •a't(ay ap.rsralr fifl uauuna oym 77v o ”vaq aye 117TM pur vaur U077v1lllrlJJ ayx 77 am •aauapaaaud 7vd o anp mou vauv 'wawasrva ayx go aQn huv a6uvya o awry' v aq ppnomI •va1ry 7vuo vakaa-r '777g2 nvag v yang u r hnwvg uno 6u -n-v i pahoFua am •aka 'Qaouvv 'sr voq f7vw7 go 61471JUnv7 6u?'p -npUr ' Qa7fli rrav 7vUO valroa]r fiuvw uog 71ray -0 puv yin hq pow, 7fivm7v 9vm vavv rvya 1051 uawa7va ayj •7kvah 0£ hTrrvau kog Ua77vyuvy) go vavv Qauay p,rwyas all u;r prod yavnyo ltig£ xv pap fiikawlrog I puv uavprrya 'ag rm fiW : uuaauo3 fivW :r woym of 1 65£55 NW 'urr7d a ?dviV 1 s0£# •'a poom uvnvg 5525 7nuo77a0 31y £6 - bl -b IF II 0 • v ctk Li Cp E- 55 2 3( ( -063. --165 r ;■r_ C,C1 062u),); ; 1 e . 1 1 b -e t - 1 1 0-, • 1 .>- 1 1 1 1 1 1 1 hS949- et? 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G -e�.r /Je..,.c. CE/-e/1/1_ : I 1 _ fACNAN I TC 1N t- e--- - t- • ( _ _ _ _ — _ 3s5( ckute-pk r ya_ . _ 1 4.174 y •__ � 1 fo _ a1, u e)-'e � � 1 ...,; 1 s 1 q ,) r e 0,6., 1 1 a.-x 9 6, c) o > e.r 1 Gde. 5a-v. bak ‹ i kt_ c c9. 42rv‘k 71-(4. w yfrk / � � k Ot..)e-A 1 4` II II February 20, 1992 1 City of Chanhassen 690 Coulter Dr. II Chanhassen, MN 55317 I Regarding the Chanhassen street called "The Cartway" as brought to the city council's attention by Gary Carlson. I We would like the street named "Cartway Lane ". We would like the house numbers reassigned according to the city grid as it relates to the houses located on Cartway I Lane. We would like the appropriate street sign put up on the ... I corner of Cartway Lane and West 62nd Street. Thankyou very much. 1 Sincerely, i i I /, . p ll -, r �� L f ` , /� � l 533 I 55 ��4-{-v�6 (� 3 3 1 ` - (71 — 3 35L ' 1 .f i I 0 7 t c . , 6 i /,4 ,066 /s-cj- X5,..7., t- ill (394i a„, ,, ,� 90 37Y( w- ‘a- e 7ce /sie,� �.✓ �S533 G�IC 1dK f�li-< _57)-7.77 il 1,31- 1 r k THOMAS L. OWENS ATTORNEY AT LAW ONE FINANCIAL PLAZA, SUITE 1511 120 SOUTH SIXTH STREET MINNEAPOLIS, MINNESOTA 55402 1 VIA FAX TEL. (612 ) 338.2919 FAX {612} 331.8515 II May 27, 1993 II City of Chanhassen I 690 Coulter Drive Chanhassen, MN 55317 Attn: Senior Planner Kate Aanenson 1 City Attorney Roger Knutson Planning Commission Members I Re: Reservation /Easement in Plat of Schmid's Acre Tracts Application by Gary Carlson for Nonconforming 1 Recreational Beaohlot Permit Dear Ms. Aanenson, Mr. Knutson and Commission Members: I represent Ken Durr, the owner of Lot 1, 1 Tracts. Mr. Durr and I will appear � Soh mid ' s bo ppear in opposition to the above Application at the Planning Commission hearing on Juno 2. The I purpose of this letter is to outline Mr. Durr's position for your consideration before the public hearing. First, some accurate background information about this supposed "recreational beachlot" is essential. The children of Benedict Schmid platted approximately 69 acres on the northwest shore of Lake Minnewashta in 1914, nine years after their father's II death. The plat consisted of eight large lots and was named Schmid's Acre Tracts. Attached hereto as Bxhibit A is a copy of the survey from the plat. In the southwesterly corner of the plat I is a 50 -foot -wide strip of land designated "Reservation." This parcel is alleged by the applicant to be a "recreational beachlot" for the use and benefit of owners of lots within Schmid's Acre Tracts. I The Schmid heirs stated in the plat that, "We reserve for the private use of the heirs and their assigns a strip of land fifty I feet wide along the westerly boundary, extending from the Glencoe Road to Lake Minnewashta and marked Reserve on the accompanying plat." This language appears to be an attempt to create an easement benefitting the owners of the eight lots in Schmid's Aore Tracts. Unfortunately, to the best of my knowledge, there is nothing more in the carver County real estate records to help us determine the rights, duties and identity of the easement holders. II II II ' City of Chanhassen May 27, 1993 Page Two Attached to this letter as Exhibit 8 is part of a 1991 County half- section map showing most of the subdividing in Schmid's Acre ' Tracts. In addition to satisfying the requirements of Ordinance No. 163, the Application seeks City approval of the use of the Reservation as a recreational beachlot by the new owners of the 16 ' lots in Minnewashta Meadows. That 1989 plat subdivided Lots 3 and 4 of Schmid's Acre Tracts. Whether the Reservation was intended to accommodate such intense use is a difficult question. As you can ' see from the map at Exhibit 8, the answer to that question will set important precedent for future subdivision in other Lots in Schmid's Acre Tracts. ' Viewed most favorably for the applicant, the Reservation is a substantially nonconforming beachlot. City Code sec. 20 -263 requires 200 feet of lake frontage for a beachlot, an area of at least 30,000 square feet for a dock, 80% of benefitted dwellings within 1,000 feet of the beachlot and appropriate buffering to insulate nearby properties. The Ordinance also prohibits boat launches, as well as boats and cars from being driven or parked ' thereon. The Reservation has 50 feet of lake frontage and roughly 11,550 square feet of area. All but about four of the dwellings to be benefitted are more than 1,000 feet from the Reservation. The ' Application requests motor vehicle and boat access, 10 parking spaces, a boat launch and other improvements, and makes no mention of buffering. ' We oppose the granting of a nonconforming recreational beachlot permit for the following reasons: ' 1. The use of the Reservation proposed in the Application are extreme departures from historic usage and require one or more variances. 1 (a) We will supply one or more Affidavits at the hearing regarding historic usage (and nonuse). ' (b) See 30 aerial photos of this part of Lake Minnewashta covering 25 years which Mr. Durr will provide for inspection at the public hearing. ' These photos show a dock installed on the Reservation in only two years, fail to show any other use of the Reservation, and show a large tree trunk lying across the Reservation in some years. (c) under City Cods Sec. 20 -71, "Except as otherwise provided, nonconforming uses shall not be extended 1 or enlarged." 1 11 City of Chanhassen May 27, 1993 Page Three 2. The Applicant has failed to provide "satisfactory proof concerning the nature and extent of the legal nonconforming use as it existed on or before January 18, 1982," and since then. City Ordinance Mo. 163, enacting City Cod• Soo. 20 -79. ' (a) This is the Applicant's "burden of proof" under the Ordinance and should require him to present detailed and credible evidence of continuous nonconforming use of the Reservation by the owners of Lots 3, 4 and 6 in Schmid's Acre Tracts. (b) City Code Sec. 20 -73(a) provides: "In the event that a nonconforming use of any building or premises is discontinued or its normal operation 1 stopped for a period of one (1) year, the use of the same shall thereafter conform to the regulations of the district in which it is located." (c) Minnesota Statutes $ 394.36, subd. 1, states: Any nonconformity including the lawful use or occupation of land or premises existing at the time of the adoption of an official oontroi hereunder may be continued, . . . but if such nonconformity or occupancy is discontinued for a period of more than one year . . . an subsequent use or occupancy of the land or premises shall be a conforming use or occupancy. (d) In County Of Ise - v. Pete so , 469 N.W.2d 467, 470 (Minn.App. 1991), the Court of Appeals adopted the all important presumption: Where a nonconforming use has been do ' ear, a dormant nt intent longer than one y presumption of intent to abandon is proper. 1 3. Granting the requested permit would be contrary to the purpose of the Zoning Code, which is set forth at City code Sec. 20 -2: This chapter is enacted to parry out the intent of the city's comprehensive plan and to: 1 11 II City of Chanhassen May 27, 1993 Page Four (1) Protect residential, commercial, industrial I and institutional areas from the intrusion of incompatible uses; II (2) Prevent overcrowding of land; (3) Conserve and enhance the city's y tax base; 1 (4) Protect again fire, smoke, explosion, noxious fumes, offensive noise, vibration, dust, odors, heat, glare and other hazards to 1 people: (5) Preserve the nature beauty and amenities of the city and achieve excellence and I originality of designs (6) Facilitate the provision of public services; I (7) Secure equity among individuals in the use of their property. I a. Denying the requested permit would not defeat the reasonable expectations of most of the supposed "members" of the supposed "Schmid's Acres Homeowner's Association." 1 (a) In platting property in Chanhassen, City Code Sec. 18 -39 requires: I If a development is proposed adjacent to a lake, or will affect the usage of the lake, I the applicant shall provide the city with a list of property owners abutting the lake at the time of application. The city shall provide mailed notice to the lake homeowners I as in compliance with the procedures above. The applicant is responsible for meeting with affected homeowners. I To the bast of our knowledge, the Applicant failed to comply with this provision in platting Minnewashta Meadows. It is reasonable to infer I from this fact that the Applicant during the lengthy process of subdividing Lots 3 and 4 Schmid's Acres Tracts, did not contemplate tha II buyers of property in Minnewashta Meadows would have access to Lake Minnewashta across the Reservation. II II City of Chanhassen ,. May 27, 1993 Page Five II (b) Neither the Development Contract between the Applicant and the City (Document No 102063) nor I any restrictive covenants for Minnewashta Meadows mention the Reservation, access to Lake Minnewashta or the formation of a Schmid's Acre Homeowner's Association. These facts also permit the II reasonable inference that the developer of Minnewashta Meadows did not contemplate that lot buyers would have access to Lake Minnewashta across I the Reservation. (c) The Minnesota Secretary of State has not received any type of filing for "Sohmid's Acre Homeowner's I Association." 5. The proposal for on -site parking is contrary to historic II use of the Reservation and utterly inappropriate. (a) See Affidavits. I (b) Since there is no room on the Reservation for a motor vehicle to turn around, vehicles parking on the Reservation would have to back into Minnewashta II Parkway. This would be contrary to City Code Sec. 20- 118(b), which provides: "All parking areas exoept those serving one- and two - family dwellings II on local streets shall be designed so that cars shall not be required to back into the street." (c) The proposed on -site parking would violate II regulations of the Minnehaha Creek Watershed District, which has jurisdiction over the Reservation because of the outlet for Lake ' Minnewashta running through the Reservation. (d) Without significant buffering, the Reservation could become an unsightly parking lot -- totally incompatible in this attractive residential neighborhood. The Applicant has not proposed any buffering, and there is little room to plant or I install any. II II 1 II City of Chanhassen May 27, 1993 Page Six ' This ancient, undefined easement is a substantial burden Mr. Durres property and poses serious liability and insurance issues. It may become necessary in the future for Mr. Durr to obtain an interpretation by a District Court regarding easement holders and permitted uses, if any. For now, we respectfully request that the City deny the permit. ' 8lncerel Thomas L. Owens TLO/ eh Eno. c: Kenneth C. Durr 1 I co l 1 1 011 i to t r rowndia /Pr 0#414,44 I !r i , Sec..1' - r, a6 d 7 , , � T � t • ` r `, Township pis 4 • ,,,,f M 2 acre &aof A07 S' �, 1 /4/7/' Vi T.S A! Oil 11 r e • 'h �Or c J'1e.7 1 s sk kl 1 o � t re � 6 V rr 01' e t , . • _ A 44 fnf oavi ird ta i , V L o l 8 et tr i �, h p 1 N ere 1 % lel teal Lot 41° ` i � 4 , Vi sf' e << 1t ISst..—• � ` 0 SCHMID'S ACRE TRACTS LOS 2 ` g P , XJ ` 1 k Q4Y ,Lo�1 , r iiii. r r ?.f'.;'tt 0 / 1 di . . \\*. \ — Ze V CS. LA p, 1 r • r r l il(;. ,� i.:lt OF MUCUS' >> ,rr(YNrtHOTA EXHIBIT A t fLtIMIN ..h cAtAViR l a !.� x, r� � �, to n •.•ryPMltr! CITY Of VICT y t • K.0 \ A 1 ROY W. WASSOM '' `' • % - 9K 91, P 422 • - i •,. ,45 • p 217.75 B . S ,• r � -. 165 1 „ ?e r y o F � ` 4,". ° 1!5 — 6 •— 200 �-- M/ a 2 ' ► .wsicYwp TAN 01 ,..t N f K f , 7 CARTtNA Y s 5 4" ,..to- ' D t / _ • ,000 4 pµ" 'V. *:::, 6 �;• ` ■ • C . 8 — 13 0 1 1 8 e 9 Y M N watt r 50 12 p off , s 9 10 r , * ki n : -- - " .tv • • ea ., ' '� r � WreT rI `r • , �. -' I KENNETH DURR Shorewood poke Development, Inc \ aK 12$, P21 a 1.+37 I t CTf. :8 G`` ! CTF Na No 19865 582 ��. A t �' ` t 2 r a Z 1 . Is , N 30 fr 'J /0 j t ;:� j 41 MVO _A :. , .' eo 33 i4 'c � , 1 20 2? 2>! 71 y� " 3 � 21 Q , r /. 410 NDEN 41:1„! 1 `�( � 11111 Coto, � � i h� Y CLfN1, /, / / april i 1 10 ' s a Da It i ( e a 004,0T MINNEWASH A C EA' / EXHIBIT B i i to 1 , � -- ... � I 4 5Lfz l :: _ Es FIRST A'D 3 2 12 13 = \ . \ f 1 i 9 10 , I , I5 \ UR �e 12 so / 2 11 , 3 d ' se AFFXDAVIT 1 STATE OF MINNESOTA ) , so. COUNTY of HENNEPXN 1 Brian J. Peterson, being first duly sworn, on oath say that: 1. He is a years old, an attorney admitted to praotios law 1 in th State of Minnesota and a resident of V'y^ Minnesota. Z. Fro . - / , 1978, to Z -~ 1 / 1988, a res a year -round as a enan n e cuss ].00ated on Lot 1, Schmid's Acre Traots. , s. He is familiar with the location of the SO-foot strip of land known as the ' on the plat of Sohmid's Acre Traots, which lies lust to the North of the property formerly owned by the late Paul and Cecelia MoClsnaghan and through which flows the outlet creek from Lake Minnewashta. , 4. during the time that he rented Lot 1 and the house on it, he was able to observe closely the usage of the Reservation. 5. From 1979 to 1984 or 1985, he did not observe either a permanent dook or a seasonal dock installed at the shoreline of the Reservation. He specitivally recalls being surprised when he first saw a dock installed on the Reservation in either 1984 or 1985. From that time to the end of his tenancy, a dock was installed on the Reservation in some years and not installed in other years. 6. The maximum number of oars that he recalls ever being parked on the Reservation was two, and this was rare because there was not much room for baoking up a vehicle. 1 BRIAN J PETERSON 5371016 06 -02 -93 15:56 P.03 1 7. The Reservation was used only sporadically for recreational purposes, and than not alw ys by people from the neighborhood who might have had some right to use it. The Reservation was generally poorly maintained, commonly littered with beer pans, paper and other unsightly debris, and was misused on many 000asions by persons outride the neighborhood for noisy, late -night partying. Sr an a ersoh 1 ' Subscribed and sworn to before me _nd day of Jun 1993. 0111.4. 0.01e_AO ' `o a! -u• 0 $ 4 PATIOCR K OMAIDAL .. 4 IMAM Kam.- w►+ifiam MONA COUNTY SIMON Min 1.114. NY DOM1N 1 1 1 1 1 1 1 1 Z Planning Commission Meeting 11 June 2, 1993 - Page 11 PUBLIC HEARING: 1 NON - CONFORMING USE PERMIT FOR SCHMID'S ACRES HOMEOWNERS ASSOCIATION RECREATIONAL BEACHLOT. THE PERMIT SHALL DESCRIBE THE NATURE AND EXTENT 011 THE USE ALLOWED. Public Present: Name Address Sherri & Tim Latterner 3790 Meadow Lane Bonnie & Pat Monahan 3801 Meadow Lane Dale Collins 3931 Aster Trail Dale Keehl 3841 West 62nd Street Mary Jo Moore 3231 Dartmouth Drive Mike Melkert P.O. Box 150, Waconia Gary Carlson 3831 West 62nd Street Mary & Tim Colleran 6560 Minnewashta Parkway Tom Owens 120 So. 6th Street, #1512, Minneapolis 5540 Ken Durr 4830 Westgate Road, Minnetonka 55345 Craig Miller 6450 Minnewashta Parkway Dana Johnson 50 West Pleasant Lane, Tonka Bay 55331 Jim Hofer 7098 Red Cedar Cove Kate Aanenson presented the staff report. Chairman Batzli called the public hearing to order. Mike Melkert: Good evening. My name is Mike Melkert. I'm an attorney. II I've been hired by Gary Carlson and other property owners who are seeking/ the permit this evening. As it was said in the background information, this was already before you once. What we're asking for this evening is that you reaffirm your previous recommendation of allowing 10 off street parking spaces, one dock with one boat allowed to be docked, and one one boat allowed on the shore. We're also asking this evening that you allow launching rights for small canoes and fishing boats. When this was beforl you previously, I think the Minutes show that you felt there wasn't sufficient evidence to allow launching rights at that time but now we feel there is sufficient evidence and we'll be presenting that this evening. I've spoken with Mr. Durr's attorney, Mr. Owens and he thought, and I agr that probably the best way to do this is if I give my short presentation and then we hear the witnesses in favor of the permit and then he gives h • presentation and then we hear his witnesses. I'd like to point out just couple of things to you. In my letter, which was passed out before the meeting I tried to assemble for you in a concise and easy to look at fashion what I believe is relevant information. The letter addresses specific points raised by Mr. Durr's attorney. Most of the points raise by Mr. Durr's attorney are not relevant to what you're doing right here this evening. What may be relevant is the parking spaces. When Mr. Carlson gets up here he's going to show you photographs showing that turning vehicles around in the area is not a problem as Mr. Durr contends. He's also going to show you photographs showing that the area is blocked trees and wildlife vegetation so there's not a real problem with blockag I'd also like to direct your attention to the survey which does show in 1981 there was a dock. There were vehicles using the property and there was a boat on the property. Attached to my letter as Exhibits D and E are II 1 Planning Commission Meeting June 2, 1993 - Page 12 a letters from previous property owners showing that during 1981, there were boats being taken down to the lake and off loaded into the lake and that ' the lake was being used for recreational purposes. And those letters are attached. The witnesses will also be testifying as to those facts. If you have any questions concerning Mr. Owens letter or my response, I'd like you to address those to me. Otherwise, I'm going to turn it over to Mr. Carlson to give his presentation and then after he's done, we'll continue with the rest of our witnesses. ' Harberts: I have a question. What do you consider, I think you said small canoes and small fishing boats. Do you have a size of a small fishing boat? Mike Melkert: 16 feet or less, would that do? Harberts: What about horse power on the motor? Gary Carlson: Well, the pictures will show, and if you've inspected the site, you wouldn't take a very large boat in there unless. ' Harberts: Unless you had 4 wheel drive. Gary Carlson: I have never seen anyone launch over a, there will be testimony to small ski boats and that's 40 or 60 or 75 or 85. Nowadays ski boats are 100 and 120. I don't own that size boat. I can't represent all of the other people, what size boats they might. It's not a safe site for large boats, no. It's not for two axle trailers with huge Cris Crafts. 1 Harberts: What size do you launch or what size do you have? Gary Carlson: I have a 14 foot fiberglass runabout. Harberts: What's the horse power? Gary Carlson: 60. Harberts: 60? ' Gary Carlson: 60. Good evening, my name is Gary Carlson. I reside at 3831 West 62nd Street. I wish to thank Kate Aanenson for a very good job that the staff and the city has done of bringing this to you twice and ' working with all of the residents and the heirs that have the right to use this site. I'd also like to thank the entire Planning Commission for their time that they donate to the city and for the betterment of the city. I ' support the ordinance that we're working toward getting a beachlot, non- conforming beachlot permit for. I support holding Minnewashta to a level that it can support and basically going by a past inventory. And as we can ' all agree, this inventory as can be expected is quite lacking. It's kind of like asking in 1981, on a particular day if I was using my backyard and then asking Joe Scott on another day in 1986 if he was using his backyard and then by 1993, if he hadn't used his backyard on those 3 days that I came to look, I would take away his backyard. That's basically what the inventory tries to call out, so it is lacking some of the points but our members basically want a permit that is contingent with what the site will support. What has happened in the past as far as level of useage. That 1 Planning Commission Meeting 1 June 2, 1993 - Page 13 it's been a very limited recreational useage by a few of those that have the right to use it. Their heirs that have the right to use it and some of the heirs are here that have direct lineage to the Schmid's and then therll are the assigns and that's where I came in 23 years ago when I bought one of the lots. One of the Schmid's Acre tracts and there are a lot of the assigns here and some of those assigns won't testify tonight but they wil stand and give their name and their address and that they would like the useage to continue because some of the assigns are changing each year as a new homeowner buys or a particular property is sold to a new homeowner. The level of useage that we want to determine is what was happening in '8' and again, as your survey, it's hard to come right back to a day or a summer and say what that level of useage was. The level of useage we'd like to support is consistent with the site and if you've seen the site, not I will send the pictures around and while the discussion's going on, III you can just pass them from site to site. And if you have any questions about any of the pictures, you can certainly ask me. Mancino: Are these 1993 pictures? Gary Carlson: These are 1993 pictures, but the site has not changed in t 23 years that I've used it. It's basically the same site. In 1981 I thi my daughter was at that age that she crawled there in her diapers and by '86, she was running and waterskiing there. In 1993, she takes her horse' down there. So if you see a horse going right onto the lake swimming, that's quite an exciting event for her, and the horse loves it. And I appreciate the time in front of you because I have a handicap daughter in wheelchair and when she sees her dad on television she just about jumps o of the wheelchair so I appreciate the time that you've given me to make m presentation. The first witness I have comes in the form of writing by Mr. Al Gelschus and I won't read his whole letter because you have it in fron of you. He's a long time employee of NSP and a close personal friend of our Mayor, of course. The easement for that area was always used by us and others for. He states in his letter that he's lived here for 30 years. T easement for that area was always used by us and others for many recreational activities including launching of small boats, canoes, etc. We enjoyed, and then he goes on to say some more about it but that's the meat of this is that they used it during the 30 years that they lived her. And buying the property from Al, the current owner is here and he's alrea used it some and will continue to use it and you'll hear from him and let' him make his statement at this time. Dale Keehl: Good evening. My name is Dale Keehl. I reside at 3841 West 62nd Street. I bought my house from Al Gelschus last September so I haven't had, I've been down to the access a couple times. I've known Al for, I've worked with him for 24 years and when I was first with NSP I went there a couple times with him and used the access and that was one of the main reasons, besides the park and stuff, that I bought his house. Is because I had a chance to, I would have a chance to use the lake with my two boys and do some fishing. The boat I have, even with my 4 wheel drill, I wouldn't be able to launch it there. It's not an improved launch or anything. I could see where a small fishing boat could be launched but mine wouldn't. I would use the park's launch area. And as far as, I probably wouldn't use it for leaving my boat there overnight. I'd traile it and leave it but I would really like to be able to use the lake with m 11 Planning Commission Meeting June 2, 1993 - Page 14 two boys and have a place we could come and have a picnic real close to our house and stuff like that. And I guess that's all I've got to say. Thank I you. Gary Carlson: Also the next, one of the active users of the lake during that time that you want to establish your history would have been Bill ' Friberg. His statement is also of record with you and I'll just refer to the parts in it that are again pertinent to his history. Establishing the history of the useage. Bill Friberg is retired from NSP and is also a close personal friend of our Mayor. As to his honesty, the Mayor can attest. Bill lived there from '59 to '87. During this time our neighbors, Al Gelschus' family and us used this easement. We built a dock, launched our boats. We picnicked, swam, waterskied from this easement. Also, our ' other neighbors that own property on Schmid's Acres Tract used this easement. For this reason we feel that their use should continue. He owned until '87. Terry Toll couldn't be here this evening. If you want a ' written statement for the Council's consideration, he will be glad to furnish one. He couldn't attend this evening. Batzli: If you can make, if he wants to give a statement, you can provide it to the staff to make it of record and the Council would then have it available. ' Gary Carlson: Alright, thank you. The next witness I would have is Clint Wager. Through this time, him and his wife used it, and his dog. That's basically is they walked the dog there and would both go swimming and he would allow his children to go there. He's recovering from hip surgery and he would provide a written statement, and I can attest to his useage as well as he would. The dock has been well documented in your inventory but 1 I would call upon the Latterners are here this evening. They've been, Bill Friberg was docking. When he quite docking, then I supplied the dock and Dale Collins who is here, his son -in -law helped me many summers put it in and take it out. And when that dock expired, I bought one from the ' Latterner's who are in the dock business so Mrs. Latterner is here tonight and she will now testify that the last 3 years I've put in and taken out a dock. And she also is an assign and has the same right to use it that I do ' and so she's. Batzli: Let me ask a question before you bring Latterner up here. Your entering testimony here of somewhat more recent events. Is this to ' disspell the notion that you've somehow abandoned any rights that you may have? Do you have people here that can talk about what was happening i'n 1981, or what are we doing here? 1 Gary Carlson: Well the last 3, 4 mentioned people all testified to what was happening in '81. 1 Batzli: So these people are, you're not necessarily giving timeframes but all these people, the written comments are. Gary Carlson: Are mostly through the '81 series. And then the recent is that we haven't abandoned the site. Batzli: Okay. 11 Planning Commission Meeting 11 June 2, 1993 - Page 15 Mike Melkert: There is some here Mr. Durr's attorney by M Du r att ney that there was an abandonment and that's where the testimony came in. Sherri Latterner: Hi. I'm Sherri Latterner. I live at 3790 Meadow Lane. We bought our lot in 1991 from Gary and we put the dock in that spring before we even had built our house. And we have put it in last year and It put it in this year. We do use the site quite often. We don't use it much on weekends because we go out of town but we go there after dinner. • Go swimming and the problem that I heard about turning around cars and it parking, we've never had a problem being able to turn around our car and have a 4 wheel drive truck that takes up quite a bit of space. And we've never had a problem with that and enjoy it very much and would like to continue to use it. 1 Harberts: Sherri, do you have a boat? Sherri Latterner: Yes we do. 1 Harberts: And where do you launch it? Sherri Latterner: We don't use Lake Minnewashta much. We keep our boat at our cabin. We do have a small one here but we don't use it very often. We usually go to Virginia to fish. ' Gary Carlson: Now at this time I would like to enter into the record, there are some people here that are also assigns on the property that wou have the right, the recreational beachlot be continued. It's been a limited use for recreation on a limited basis lot and we would like that o continue. My application was, on the number of cars, you can see that on picture I think there's 8 in there and we're not even on the drive. We'r just all pulled off to the side. The reason the number is 10, and there' been some contention or worry that we're going to start a parking lot there for 10 cars. It's only to be within permit. I have myself and my family 8 brothers and sisters. My wife has 7 and if we have a family get togeth, on a 4th of July, and not even all of us would have to meet at the lake and we'd have 10 cars. The level of useage, the most I've seen is maybe 12 cars or that would count a boat and trailer as a car. I've seen 2 boats and trailers and the accompanying families down there and that's only one in the 23 years I've been there. So the reason I'm asking for 10 cars is that in, if someone has a picnic there, any of the assigns or the heirs h a gathering there, that they won't be out of permit. We're not requestin and we don't advocate a continuous parking lot for 10 cars. It's just that we show that we, by those pictures that there are available room on a 50 foot wide access for that number of cars, and also to turn around on that site. There are some people here. I'm sorry, I missed one testimonial and that would be also to the useage during the '81 and on up to the present. And I missed having him come forward. That would be Dale Collins and he ' has a statement for you. Dale Collins: I'm Dale Collins, 3931 Aster Trail and our family has ownell Lot 8 for nearly half a century now. I think they bought the place in 1950. At that time we used it primarily for swimming. There was no air conditioning at that time and so we'd take a bar of soap and go down they at night. We also used it for fishing and we would take a small duck boa 1 Planning Commission Meeting June 2, 1993 - Page 16 1 in or a canoe. And this continued on up into this 1981 era and at that ' time my useage and my father, who was quite old at that time, and rather declined but our children used it a lot and like Gary said, my son -in -law helped him put the docks up. But they used it primarily for swimming purposes. So we would like to see another permit issued and I have a letter from my daughter who couldn't be here. She owns the north part of Lot 8. It says, to the Chanhassen Planning Commission and those concerned. With regard to permit for lake access to Minnewashta, as deeded to my ' Schmid's Acres Lot 8 property, I would like to see the following stipulations met and the permit. One, removal of the road curb that has been placed in front of it. Two, one dock. Three, the permit to park cars. Four, no overnight boat or car parking. Five, 10:00 p.m. closing. ' Six, access to the deeded owners only. Also, if the road curb was placed upon demand of an access neighbor, I would like to see legal action taken by the County Attorney against these persons for denial of access to ' private property. Cathy Collins Sheridan, 3921 Aster Trail. And I pretty much concur with all of her recommendations. We realize that times have changed. There's more people in Schmid's Acres and I don't think it's for the better. It used to be a lot of nice dairy farms and now it's a lot of crummy people farms. Mancino: Mr. Collins, have you used, you or your family used the access 1 every year since 1950 in some way or another? Dale Collins: Yes. Mancino: Every year. Dale Collins: Yes. We have a canoe that we carry in now. ' Farmakes: The 5 to 6 parking spots that are listed in the '81 survey. Do you concur with that? ' Dale Collins: Pardon? ' Farmakes: The 5 to 6 that are listed in the '81 survey, do you concur with that? How many off street parking spaces do you recall in '81? Dale Collins: How many were there? ' Mancino: How many cars parked? ' Dale Collins: I don't know how you'd estimate. I mean it's a long access that's 50 feet wide so there's room for a lot of cars. But there would be very seldom more than 1 or 2 at any time. Gary Carlson: The next party would be Mrs. Monahan. She's an assign and she'd just like to enter her name that she was here and in support of the. She also has the right to use the access. 1 Batzli: Thank you. ' Gary Carlson: Her name is Bonnie Monahan. Is there anyone else that wants to speak in support of -the access? I might ask a question. Now you've t r r �/t Planning Commission Meeting June 2, 1993 - Page 17 1 heard that we do use it and we wish to continue to use it in a recreation manner. And if you have any questions of the pictures that are there. That's the same dock that has been installed for the last 3 years. And t one that I used before that was similar without the bench on the end of it. And the same access. The small little gravel ramp. And it's really not il gravel. Just sort of gravel gives way to the sandy beach so any large weighted boat you'd definitely be down there with a 4 wheel drive to pull it out. You could maybe launch it but, so it's just maily for our light recreational use. But your permitting doesn't allow us that for light bo� launching so we don't want to be illegal if Dale's daughter takes her canoe down there and puts it in. You're launching and have a neighbor on eithe side say well you're out of permit. We simply want to continue it as a recreational beachlot. I had my 35th birthday in '81 and I know I was do there with over 10 cars. I have no other comments other than to request time to answer fully any of Mr. Ken Durr's questions that he may raise. I Although I can definitely tell you that none of our people that are here supporting our continued recreational use have ever met Mr. Durr. Or know what he looks like. But based on our recreational, continued use of the lot, somehow he happened to be there when they were pouring the curb and although the plans and specifications that were approved by the Chanhasse City Council showed, and I checked those plans at the engineer when they were being drawn up. At Engelhardt and Associates when those plans were I being drawn up and before they were approved by the City Council. I checked those plans and they showed a curb cut onto our access but somehow Mr. Durr happened to be there and talk to the people that were installing it and he said, no, no. There's no curb cuts in here. Just put that ful� 6 inch high curb right on by. I've talked to the City Attorney and he informed me that they were going to, the City, at it's expense was going put that curb back in correctly as it was shown on the original plans and specifications. And that's what Dale Collins daughter was testifying to. That she, most women will not drive up over a 6 inch high curb which is required on Minnewashta Parkway in order to handle the amount of water thil comes down on the roadway. So they had to go with a 6 inch high curb rather than a normal surmountable curb that you've recommended in most of your developing. In most of your homesite developments. Batzli: Let me ask this question, since you raised the issue. You have an undeveloped gravel /dirt road. With the amount of water that you've just admitted runs down the street, how do you handle the erosion down through. your recreational beachlot? Gary Carlson: That's a very good question. In the engineering layout of ' Minnewashta Meadows they replaced the culvert which there was a culvert under our driveway and that culvert is in place. And normally you wouldn't put a culvert unless there was a driveway but the engineers put that culvert in so they recognized the driveway. We're so close to the edge o� the creek that there's only the 8 or 9 foot wide gravel drive that we hav and then it falls right into the creek so we don't have any large amounts of water running across our little road. But that's a good question but I it's well handled. The City has a permanent easement and they use our access to get to it. To maintain their sewer line that runs along. We have a manhole right half on our property and half on Ken Durr's property. An that manhole has been serviced in the past from our drive. From our acces The city trucks drive in there and clean it out or whatever they do. II Planning Commission Meeting June 2, 1993 - Page 18 1 Batzli: Dave. Are you familiar with the curb cut he's talking about? Is I there a way to handle any runoff so you don't get erosion through there if you take the curb out? Hempel: Right. If we were to put in a curb cut for the driveway, we would I put a slight ramp into the end of the curb to maintain the drainage past the driveway and keep it on the street and collect it in catch basins. I Batzli: Where did the storm sewer go to right there? Hempel: The storm sewers all go to pre- treatment pond. I Batzli: That one does go to a pre- treatment pond? Hempel: That's correct. Now. Prior they did not. I Harberts: Is there some reason Dave why you wouldn't want to put in a curb cut? 1 Hempel: We have a number of curb cuts up and down Minnewashta Parkway. Harberts: I was just wondering if that particular area. I Hempel: No. I'm not familiar with any problems. 1 Harberts: Is that a city expense or is that the Association's expense? Hempel: Well the project is partially being assessed back to the I benefitting homeowners. If we had to go back in and do it, no. There would be an expense to the city to have it replaced into the curb cut. Aanenson: Can I get some clarification. Since this permitting process I hadn't gone through yet, we decided to wait and take the curb out and have to put it back in. Wait until you give your and take the curb out if that's necessary. It makes a lot of sense, and we've told Mr. Carlson I that. It's an easy change order to go in and cut the curb out. We didn't want to take it out now and then if it goes back in, because it hadn't gone through the permitting process. And if you grant them access, there's no 1 problem to go ahead and make a change order and the engineers are aware of that. It's just to make sure that we don't replace it. Batzli: Okay. Do you have anything else? I Gary Carlson: No. If you don't have any other questions? I Batzli: Yeah, we will probably after. Gary Carlson: Sure. I'll be available for your response. I Batzli: Okay. Is there anyone else that would like to address the Commission? I Tom Owens: My name is Tom Owens. I'm counsel for Ken Durr. You have some materials that we've prepared and submitted last week as well as some II Planning Commission Meeting June 2, 1993 - Page 19 additional materials from tonight. Ken is here tonight and would like to make a few comments and he also has some slides that he would like to sho of aerial photos. If we could take a second and set that up now, I think that's going to be some very compelling evidence that he spent a lot of I time and money putting together. Batzli: Okay. And Mr. Durr lives where in relation to this beachlot? Tom Owens: He lives in the city of Minnetonka. In fact why don't, Ken, maybe you'd like to your comments and I'll see if I can get the projector set up here. ' Mancino: Can you show us on the, Kate's map what property you own? Tom Owens: Mr. Durr owns Lot 1 of Schmid's Acres Tract as well as some I additional land to the east. And northeast. Ken Durr: My name is Ken Durr. I live at 4830 Westgate Road, Minnetonka I'd like to just respond to a couple of things that were commented on. T curb cut was not just a spur of the moment thing that occurred as the curbs were being put in. One year ago in May I talked to the engineering department of the city telling them that we were possibly planning development of our property. That we did not want the curb cuts as shown on our property. There were two curb cuts shown along Minnewashta Parkwa, to serve my property. And until we would know the plan for development o� the property, we did not want that cut, or those cuts put in and then have to be removed and cuts put into a different location. I talked to your engineering department. They referred me to Engelhardt, the consulting I engineers on the project and they said, whatever you want done, let them know. It was not only regarding curb cuts. We addressed slopes to the curb. They had very gentle slopes going back 20 and 30 feet into the property which would destroy a lot of vegetation. Upon meeting with them' they concurred that they would put in steeper slopes as we developed the property. We would put in a stone retaining walls to allow the shrubbery and plantings to come out more to the edge of the property for a more aesthetically appealing situation. So this curb situation was initiated year ago in May. Not just in the last few weeks. Batzli: Just for everybody here. I appreciate you clarifying the record on the curb cuts. It's not really an item that's in front of us. I asked the question only because I was concerned that if they took it out, there might be erosion. But that has very little bearing on what we're trying decide tonight so, let's see if we can avoid talking about curb cuts. Ken Durr: Okay. I've owned property on the north shore of Lake Minnewashta for 18 years. I purchased the first of three parcels, a 7 ac tract in 1975 and in 1979 I purchased the adjacent parcel, Schmid's Acres Tract, Lot 1. And that is the lot on which the 50 foot reservation is in question. I was in the last year I purchased the, what was referred to a the Smith Greenhouse property so we put together 3 parcels there containing about 19 or 20 acres. The reservation under discussion falls within the legal description for Lot 1, Schmid's Acre Tracts. It lies within the southerly border of my property. County Records show that I have been paying taxes every year for 14 years on the land within the 50 foot II Planning Commission Meeting II June 2, 1993 - Page 20 I reservation, ever since I purchased that property. As had all previous owners since 1914. In addition, the square footage of the reservation is calculated in the total square footage of Lot 1 for the purpose of assessing sewer and water units against Lot 1. In 1992 the taxes on Lot 1, 1 the smallest of the three parcels I owned there was $7,840.00. Taxes on all three in '92 totalled $31,078.00. The acquisition and holding of these parcels has been very costly but part of a long range plan to develop a 1 quality residential community on these 19 or 20 acres. However the use and misuse of 50 feet of my property is very concerning. If I were to develop a plan for my property and request this body for a beachlot approval, I'm sure I would be directed to a section of the City Code addressing the I beachlot ordinance. It's a very stringent ordinance and I don't want to read it all but I would like to just read 5 of the 17 points. No boat, trailer, motor vehicle, including but not limited to cars, trucks, I motorcycles, motorized minibikes, all terrain vehicles, or snowmobiles shall be driven upon or parked on any recreational beachlot. Number 5 is boat launches are prohibited. 7, no dock shall be permitted on any I recreational beachlot unless it meets the following conditions. Shoreline of at least 200 feet and area at least 30,000 square feet. Item 11. A beachlot is intended to serve as a neighborhood facility for the subdivision for which it is a part. At least 80% of the dwelling units II with rights of access to any recreational beachlot, shall be located within 1,000 feet of the beachlot. And finally, item 13. All recreational beachlots shall have a buffer sufficient to insulate other property owners I from beachlot activities. Now, these are very stringent, and I've only cited 5 of 17, very stringent regulations that are put upon a person who is going to develop a piece of property and attempt to establish a beachlot I today. And well it just seems strange I guess to me why a riparian owner who has been paying taxes on property for over 14 years is required to meet these very stringent requirements that there would even be a consideration of the very lenient intensive use of a 50 foot portion of my property by I non - riparian property owners. From 1975 to 1985, until our house was extensively vandalized. I'm speaking about the center property. The home that was on that property. It was extensively vandalized and ultimately we I had it burned down by the fire department. But my family spent a lot of time during those 10 years enjoying the property on the lake. Sundays were special times when families, friends of our's with children would join us for recreational swimming, boating and waterskiing on the lake and quite I often in the evening my wife and I would use the boat and go for a spin around the lake. Since 1985 I have still been on the property at least one day during the week and most weekends. Now during all of this time, since U my purchase in 1975 we observed very little use, and the vast majority of the time no use of the 50 foot reservation. There was no boat launching, no canoe racks and only occasionally a vehicle or people. Aerial photos I will show that there's no dock at most of this time. The only aerial photos, and I've done an extensive search with many different agencies. The only time that we can find docks showing on aerial photos is 1991, 1992. The few times that I observed a vehicle or persons on the property and 1 inquired of them where they were from, no one ever said they were from Schmid's Acre Tracts, and I guess that was proof here tonight when Mr. Carlson said that no one here knew me. No one would even recognize me. I And that probably is the case because these people that I would ask whether they had a right to be on this property, most of them would say they thought it was a public access. But no one ever said they were from II Planning Commission Meeting June 2, 1993 - Page 21 Schmid's Acre Tracts. The misuse of the property at night I assume is alit by people other than from Schmid's Acre Tracts. The loud parties, littering of beer bottles, beer cans, wine and whiskey bottles have been a constant problem. Late into the night and early morning hours it has bee anything but peaceful and quiet possession of property for myself and oth owners in the area. For 10, let's see 9 years I guess. From 1979 to 1988 I had a tenant in the property on Lot 1, Schmid's Acre Tracts. An attorney, Brian Peterson. And he told me that he would call the police 411 to 5 times every summer to break up loud parties in the early morning hours, and that he only called on occasion. He didn't call every time there was a loud party. The litter on the 50 foot strip and into the grail on the north has been intense. Some have used the property for repairing automobiles, draining oil. You'll find drained oil, oil filters, mufflers, all kinds of debris on there. Even at this point there is a lot of debri thrown into the grass on the north side of the reservation and every year I've picked up several large bags, garbage bags or lawn bags of garbage o the property. Prohibiting motor vehicles on this 50 foot reservation would solve all these problems of misuse. It would solve the partying. It would solve the noise and the litter I believe. It is the access by vehicles that bring the problems. If I were to develop a 200 foot wide riparian beachlot, I would have to adhere to all the things that are in that code. And it's inequitable I feel to allow this useage on a 50 foot portion of property by non - riparian users. The proposed use of the 50 feet of my property would impose a hardship for myself and surrounding properties in that we would not enjoy the peaceful and quiet possession of our properties. This has been a problem for too long a time and I respectful request a denial of the beachlot application. Batzli: Let me ask a question. Mr. Durr, how do you explain what I see IL kind of an inconsistency between your discussion that it's an intense and intrusive use versus your argument that there's been no use there. Is wh you're referring to is that the unauthorized uses are the intense and intrusive uses? And let's assume for a minute that the only use that did go on there, there was some way to monitor it. The fact that you've neve seen anyone from Schmid's Acres using that, you wouldn't at that time cal it an intrusive use would you? Or an intense use? Ken Durr: I guess it would be intrusive. Whether that would be intensivit I think what I'm referring to is the proposed intensive use of the property. Batzli: But what we're here trying to do tonight is to determine the lev of use from 1981, so I don't know that it's a proposed intensive use. Wha we're actually trying to determine is how has it been used in the past, discounting these unauthorized parties or people who apparently thought was some sort of public launch. Ken Durr: Well from my viewing the property, and being out there a great' deal of the time, it had little and most of the time no use. Batzli: So in general this is not, this particular let's call it a II beachlot for argument sake. This beachlot has not received intense use other than perhaps loud parties at night by high school kids? Is that really the, I mean because you've been out there and you haven't seen i Planning Commission Meeting ' June 2, 1993 - Page 22 ' anyone from Schmid's Acres ever using it. So it certainly doesn't sound like it's been intense, although we have people telling us that. Well, excuse me. I'm just trying to get a feel for your argument here. Is your argument that you don't like the unauthorized uses or that because of the ' way, and maybe your attorney will want to respond to this. Is your argument that because of the unauthorized uses, it's been an intense use and that's unacceptable. Or is your argument that for somehow the ' recording of the access or reservation was improper and so it never was a beachlot. Or I guess there's a third way you could look at it and that is that, well the third way escaped me. But you know, what we're trying to do here tonight is to determine what the level of use was. Your attorney has raised a lot of arguments regarding whether it's a proper beachlot, which may be best settled between you two guys in a forum other than this, because we can't decide that. ' Ken Durr: Yes. Well the useage of the beachlot, I think in 1981, which seems to be the year we're looking at? Batzli: Yeah. Ken Durr: In my search of aerial photos, I was only able to find two for 1981. I believe one of them was taken in March of '81, which is early for a dock to be out, but that picture shows no dock on site. Nothing of any nature on the site. The other one was taken in July of '81 and there's no ' dock shown in July of '81. Scott: Excuse me Kate. On the recreational beachlot inventory, what was the date of the survey in 1981, 1986, whereby we show a seasonal dock in both of those years? I'd like to kind of corroborate what our city staff has found vis a vis this data here and then also there's an inconsistency between Mr., I'm sorry. The affidavit. 1 Batzli: Peterson. Scott: Mr. Peterson wherein he swears via affidavit that a dock was installed on the reservation in either '84 or '85 and that information does not show in your aerial photo inventory. So I see some major 1 inconsistencies inbetween this document, your affidavit and the city staff inventory. Aanenson: Okay. As I mentioned before, there's the '81 survey that's in ' your handout, there are some errors in there. One I noted was the 5 to 6 parking. The inventory was done on June 12, 1981. Tom Owens: I think it was June 4, wasn't it? Aanenson: June 12th. Oh excuse me, I got... Scott: June 4th of '81? Tom Owens: That was one of the five pieces of paper that we handed out ' just before the meeting. It's attached to Mr. Durr's index to the aerial photos. There's a copy that we obtained yesterday from the City's ballominist historic on beachlots. Of the survey done by City staff 1 / �Y . • f Planning Commission Meeting II June 2, 1993 - Page 23 June 4 of 1981 and this may help clear up the discrepancies that Ms. I Aanenson has noted on the allocation. Scott: Kate. I'm trying to rectify something here. 1 Aanenson: Yeah, it's the 4th right. Scott: We have something in our package that shows a 3 survey summary an, it states in '81 that a seasonal dock was on the property in '81, '86 and '91. And then there's another document here. Which is the one that we ' need to? Aanenson: You should correct the one, the '81. Where it says seasonal docks. The '81. June 4, 1981 inventory. Whoever took it from city stafl at that time noted that there was not a permanent dock. Scott: Okay. So we should correct our seasonal dock in our package. Do' we have a similar situation with the '86 number as well? Aanenson: I don't have that in front of me. I Scott: Okay. Batzli: Do we have the raw data for the '86 survey somewhere? 1 Aanenson: Yes. Batzli: You may not have it in front of you but. 1 Aanenson: Yes. I may have it in the file. I can get it quickly. Batzli: So we'll clarify that. Do you have something else? I Scott: Yeah. Just based upon the affidavit then, there was a dock there' in '84 or '85 that didn't show up in the aerial photographs. So I'm just trying to rectify the accuracy of all this information but it seems like we've got a couple of inconsistencies here. I Batzli: Good point. I see your point. Farmakes: I have a question. Are you disputing the 50 feet of I shoreline? Ownership. Ken Durr: I'm sorry. I Farmakes: Are you disputing the ownership of that 50 feet of shoreline? Ken Durr: Not at all. I own it and I pay taxes on it. I Tom Owens: Let me follow up a little point that was made a few minutes ago about assessing this curb cut to the Association. You don't have the, thll City does not have the power or authority to do that. Mr. Durr's going t pay for any curb cut there for the benefit of these people if it goes through. It's his property, Lot 1 that's assessed for water and sewer. T I Planning Commission Meeting June 2, 1993 - Page 24 Association in addition do not have a legal existence, corporate authority, ' mandatory membership as you'd normally have with a homeowners association and dedicated outlot. And how in an elected representative to stand before you and agree to things and negotiate. That association has, well. That association has no interest whatsoever. Perhaps, perhaps some of the people here have an easement right. Farmakes: Okay. Getting back to my original question, are you disputing that in Court? Tom Owens: No. ' Farmakes: This is not the forum to do that. ' Tom Owens: That's right. Farmakes: Are you disputing that in Court to decide whether or not they ' could use the property? Tom Owens: No action has been filed. I've not been, I've not drawn up anything, no. ' Mancino: So when you bought the property you said, you knew that they had an easement to use this property and that you agreed to pay all property 1 taxes and assessments for the property. That is an implication of when you purchased the property. Ken Durr: When I purchased the property, the legal counsel from Dorsey- Whitney firm examined title and he noted the reservation and he said, and he talked to the city at that time. He said there would be no vehicle traffic and that was in '79. This beachlot ordinance then came into ' existence in '81. I attended the meetings on that and they indicated to him and to myself that there be no intensification of usage allowed on that. Of course that was preliminary stuff that was going on at that time. ' But again it was his opinion was that it would be only for the 8 individual sites. That it would not be used by more people than the original 8 lots that were within the Schmid's Acre Tracts. ' Farmakes: You're claiming then that this predates 1981, correct? Your agreement on this property. You purchased this in '75 I believe. ' Ken Durr: '79. Batzli: Okay. Do you want to show us some slides or. Tom Owens: We would and perhaps while Ken sets that up to show you a couple of slides I could make a couple of comments as well. Commissioner Scott, I would like to follow up on what you've begun and that in fact is ' the inquiry about the uses that existed in 1981. I appreciate the staff correcting that survey and in fact if you look at the survey that shows the 3 years in question. 1981 is the key year by statute. By ordinance of ' this city and if you go down through the list of uses and then compare them to the requests of this so call association, what they are asking for is a very dramatic enlargement of the historic uses. If they were able to prove II Planning Commission Meeting June 2, 1993 - Page 25 1 that in a particular year after that, after 1981, they used it for some oll these additional purposes, that is not supposed to carry weight. And in fact the city ordinance very specifically says that non - conforming uses, just like non- conforming structures, are not to be enlarged or expanded. So even to go from zero canoe racks to one is a simple enlargement that i� not permitted. There wasn't a canoe rack then and there shouldn't be one now. And I think if we go item by item through the list of requested uses, you will find that the only two uses that might arguably be permitted now' and in the future would be for some limited vehicle access but without parking and swimming. Although when it comes to swimming, we have to point out and I have to say that I have very great concern for Mr. Durr who has asked me to look into the whole insurance issue here and liability. We have an association, supposed association here that doesn't exist. Doesn have corporate capacity. I'm sure doesn't have insurance policies. Doesn' have the right to assess members. To pay for insurance. To pay for improvements and Mr. Durr is substantially at risk for these very significant requested increases in use. Farmakes: Is your client disputing the 5 to 6 off street parking...? , Tom Owens: That's, yes. Because in fact that's incorrect. At the time 1981 the survey, the actual survey done by the city, and I've handed you copy which we obtained from the city files yesterday. That's the June 4, 1981 survey. Just go right down through the list. Off street parking or on site parking, great big check for no. It doesn't say 5 or 6. It doesn't say 1. It says no. So that's why we have to go back to, if you back to this inventory. This one is almost accurate for 1981. It's accurate with the exception of the seasonal dock, which Ms. Aanenson just mentioned ought to be corrected. So for uses in 1981 all you have is mot vehicle access, yes. Off street parking no. Now, according to the ordinance governing beachlots as well as the non - conforming use ordinance I don't know how better to put it than it's illegal for the city to say, now we'll give you some on site parking here. Farmakes: So you're disputing, let me ask this just one more time. Are you disputing, not that the cars were there but that there was any improv space for 5 or 6 cars. You're saying that there was no improved space in 1981, correct? Tom Owens: Yes, but in addition to that we're saying there was no on site parking. Farmakes: You're familiar with the property. It's been there over a period of time and there are a few people here that have been here since 1981. That's my question. The fact that, not that there wasn't any cars" that happened to be parked there that day the city took the survey, but w there any improved parking area in 1981 for 5 to 6 cars? Tom Owens: No. No. Absolutely not. The survey is accurate and that car' be backed up by the aerial photos which will also, none of these aerial photos which have been obtained from government agencies far and wide. In addition to, I'm showing docks only in '91 and '92, they don't show cars I parked and they don't show boats. II Planning Commission Meeting II June 2, 1993 - Page 26 Farmakes: This is what you're going to show us now? I Tom Owens: Well, in looking over here and seeing that we may all have to put on some special glasses to catch these but perhaps Ken you could run II through a couple of these slides and the evidence that you've put together. Batzli: Okay let me ask one question before you run these and I'm going to I try and totally destroy any probative values that these have. We have an affidavit here from an attorney who says that there was no dock until '84 or '85 and your survey, aerial photographs show that there wasn't any dock in '84 and '85. Should we believe your, what should we believe here? I Ken Durr: Well we can look at the slides and determine. I Batzli: I mean I'm trying to decide whether to throw away the affidavit or throw away your slides. What do you want me to throw away? I Tom Owens: I don't think either. No, I don't think either. Batzli: I don't mean to make light of it but there's a problem here with some of the things we're looking at and we're trying to figure out, you I know. We've heard that he's never seen them. They've never him. I believe that they used it at some point. You may. I Tom Owens: I have no doubt that most of these people have been down there on the reservation. Batzli: The question may exist whether they have the right to use it under II the reservation language and I'm... Tom Owens: That's not for us tonight. Yes, that's not before the city. II Batzli: 5o the issue that I'm looking at is, what was the use and then the slides I see all a lot of zeros until recently and I see an affidavit that I says, but there was one there when your slides say there wasn't one there. And I have people that have at least been telling me that they've been putting in docks each year. So you just kind of want us to put it in a crucible and decide ourselves. I Tom Owens: No, I think you do have to take both of them together and I don't want to discount Brian Peterson's testimony, even though he's not I here. I suspect what he would say is that he's relying on the best of his memory that for this period of, he moved in and for the first several years that he lived there, there wasn't a dock and then lo and behold, somewhere II around 1984 -85, maybe it was '86. Maybe one year, or 2 years, they put in a dock on July 5th, after an aerial photo was taken on July 1st. I think they can be read together. We too are trying, we're searching and as you can see, Ken Durr has searched high and low for historic information. The I extent of historic information on the other side is, well something you're going to have to weigh and balance. I Farmakes: Do you believe that the city misidentified the one 45 foot dock on the property? II II Planning Commission Meeting June 2, 1993 - Page 27 Tom Owens: During the 1981 survey the city employee or contractor found dock. Mancino: So there is a change to the inventory here? Aanenson: Right. II Batzli: Right. 111 Scott: In '86? Mancino: A correction. 1 Tom Owens: In 1981. Scott: Okay, '81. '86 and '91 stand, correct? 1 Tom Owens: Well in '86, to be honest, there's some, I'm not sure where that came from. I found two documents in the file. I'm sorry, I found al 1985 Planning Commission document that listed all the city beachlots and then listed whether they had a dock or not. And for Schmid's Acres it said no. 1 Scott: In '85? Tom Owens: In '85 in preparation for this '86. Then I found some notes that said, some handwritten notes that went on for about 4 pages and listed each of the individual beachlots and then for Schmid's, I can only guess this was done in '85 or '86. For Schmid's Acres, the words are, changes which have occurred. Added a seasonal dock. No boats on shore. "Had on canoe." "Poorly mainatined." Scott: So is there a date on that document? 1 Tom Owens: It's undated so unfortunately we're dealing with imperfect I information. Scott: Well let's use perfect information. 1986, is that. Batzli: Do we have some here? I'm sorry. Go ahead, I'm sorry. Scott: I'm just trying to get a handle on what's going on here. Let's 1 look at some slides. Conrad: Before we do, the point is, we're looking at '81. Aanenson: Exactly. That's why I didn't spend a lot of time. I Conrad: The Mickey Mouse of '84 - '85, seriously that doesn't count. we'll looking at, it may give a track record but '81 is the date. Seriously. That's what we're doing. Every beachlot we look at is '81. So I don't care what was in '91. I don't care what was in '86. I do care, '81. So I'd love to look at slides but if they're not showing me 1981, I guess I don't have an interest. II Planning Commission Meeting June 2, 1993 - Page 28 Tom Owens: And Mr. Conrad then, you can imagine as a lawyer that the kind of belt and suspenders approach here is that just in case someone should think that, incorrectly of course, that there was a dock in 1981, then we would like to be able to demonstrate that that use was discontinued and the period of time for discontinuance is, well it's a year under the ordinance and state law, I think that would be deemed to be a summer for purposes of a dock. So if they don't put out a dock for one year, if they put it in in '81 and then skip any year after that, the dock's out. And I'm sure that's ' come before this city many, many times before. Non - conforming uses and structures. So we don't want to keep you unnecessarily late. The format of the aerial photos is such that they're in a slide form, although Ken ' does have a few. Well, are there any from the 1980's that are actually blown up? ' Ken Durr: Well here's one for '81. It's got a date... (There were a number of conversations going on at one time at this point.) Batzli: I think they're hopefully going to show us the, I'd be interested in seeing the '80, '81 and '82 slides just to see what we can see from it and I don't really want to see all the. Conrad: And then I guess I'd like to ask staff, does a discontinuance of a use in this situation mean they don't have, we have not interpretted it that way. ' Aanenson: Not on docks because there's sometimes extenuating circumstances. 1 Scott: Lake water levels. ' Aanenson: Yeah. A cold summer. We had that circumstance on some of the beachlots that we've heard before. Farmakes: If that's the case, half of Minnetonka a few years ago would not be able to put their docks back out in the water. Tom Owens: Right, and Mr. Batzli's a lawyer and perhaps I could point out. ' The case that I, the one case that I cited very briefly in my letter goes to exactly that point and it puts on the applicant for the non - conforming use permit the burden to demonstrate and it's okay to demonstrate that the use had to be discontinued because of, basically acts of God. So we've had 1 no proof or evidence like that. Batzli: Okay. Can you tell us what we're looking at here briefly? Is ' this a '80 slide? What is this one? Tom Owens: This is '81.' And this is the north shore of the lake. This was the rental house that Brian Peterson. This is his area right in here. This is the reservation here. This is the house adjacent to it that has been torn down that Dana Johnson has gotten approved for a lot. So that 50 foot reservation is right here. Scott: Is there a dec on there that we can see? 1 4 II Planning Commission Meeting June 2, 1993 - Page 29 II Ken Durr: Oh yes, many of them. All of these are docks? All these are docks. This dock is about 90 feet long. That's my dock. This is the wh"' the water, you can see that shaded... Scott: Is there a date on this slide? I noticed on this one there's a II date. Ken Durr: There's a date only of July, '81. This was from the II Agricultural ASC Desk. Tom Owens: Soil Conservation Service. Ken Durr: All they did was designate the month. They did not designate II the day... (There were a number of conversations going on at one time at this point.' Batzli: I assume your other slides show similar things. That there's a ' lack of a structure that looks like a dock when you have zero's. Tom Owens: That is correct. Batzli: Do you have any other evidence regarding a dock or no dock in '811 that you can present? Ken Durr: Not here, no. I would have photographs and home movies that have that shoreline but. Batzli: Okay. Can you show us the slide of July, 1986? Number 27 I thil it is. I think our survey showed that there was a dock there and I was curious to know if the slide showed it. Scott: Kate, what's the date on the '86? II Aanenson: I don't have a copy of that in the file. I'm sorry. II Harberts: It's interesting in July of '84 there's 75 docks and the one that Brian is requesting, number 27, there's only 63 docks. Mancino: Say that again? II Harberts: July of '84 shows 75 docks, according to this inventory. And July of '86, 2 years, we show a decrease of docks. Conrad: Who's data is this do you know? Harberts: Well this is from the ASC's office... II Batzli: I'd like to get back on track here and focus our efforts so that" it's clear on the record what's happening. I appreciate the fact that everyone's looking at these slides for the first time. Thank you for showing those to us. Do you have anything else you'd like to? II II Planning Commission Meeting June 2, 1993 - Page 30 1 Tom Owens: I've got just a couple of more comments and then we'll be happy ' to, well actually I think there are a couple of witnesses who want to make a brief statement and then we'll be happy to answer questions. Regarding specific uses. We've addressed the issue of docks as best we possibly can based on Ken's personal testimony, aerial photos, the affidavit of the 1 resident next door and I don't know how much better we can do than that and I think we've been very, very, very specific and to the point. The issue of on site parking is an especially troubling one. As we've already ' pointed out, there was no off street or on site parking according to the 1981 survey. There are also no cars evident parked on the site in any of the aerial photos. I should also point out that the parking area proposed ' by the applicant, it seems to me is going to require paving under the, well it's going to require a development of the site and paving under the city code. And if I could point you to Section 20 -118 of the Chanhassen City Code, it says that all parking, loading and driveway areas shall be ' surfaced with asphalt, concrete or equivalent material approved by the city. Well once we've done that we've, as they say, paved paradise and put up the parking lot. The other thing we've done by then is we're running t afoul of rules of the Minnehaha Creek Watershed District which has jurisdiction over the outlet creek and which has very significant limitations on development of sites of half an acre or greater within it's jurisdiction. It's pretty obvious, or I certainly think it would be from ' the applicant's photograph that this would be a terrific eyesore and an inappropriate use of the property and you're still left with a probability or likelihood that there's going to be backing onto Minnewashta Parkway. ' The last point that I'd like to make is that the permit really shouldn't be issued based on the conduct of users of the reservation and the so called owners association here. They have failed now for 11 years to comply with ' the most simple requirement set out in the beachlot ordinance and that's for a swimming beach and it says that if you're going to be swimming out there, you have to put out marker buoys that comply with certain requirements. Those have never been set out. There's never been anyone ' in charge down there. There's never been anyone responsible for maintenance or clean up. For insurance. For monitoring the place. For being a person or persons to talk to or be responsible. You've also heard ' about the pattern of misuse by non - residents which is very difficult to control given this unlimited access that's...all these association members supposedly would attempt. And frankly that the question, will use has ' continued right up to this week and one of the last photographs we'd like to show you is the before and after of the grading activity that was done by the applicant this week on the site. We don't have extra copies but the applicant cut either a boat launch or an access or something a foot or two ' out of the shoreline this week. We've got the before and after photographs and I should be better with words as a lawyer so that I could be a nicer guy about this but, frankly that action appears to me to be in very clear ' violation of state law, rules of the DNR, Minnehaha Creek Watershed District and the city for grading and dredging activities within 75 feet of the lake. And Ken, perhaps you can show the before and after when the gash was cut and if you have walked this site in the last day or two you'll see ' that a Bobcat was taken to the roadway to just cut it a little bit cleaner so they could get those cars out there and take the pictures that you wanted to see. That they've presented to you anyway. That's the end of my ' comments. I think there are a couple of other witnesses who want to comment as well. Planning Commission Meeting June 2, 1993 - Page 31 1 Harberts: I have a question. Mr. Durr. You had made comment that durin the period of time that you'd go out there and you had noted the, I guess the garbage. Had you ever, you had also noted that your tenant had contacted the police with regard to parties. Have you yourself placed any complaints to the city or to the potential owners or easement holders wit ' regard to complaints along those lines? You yourself. Ken Durr: Only talking to people on the property who were using it. Harberts: How long did you live out in that area? Ken Durr: I actually did not live there as my principle residence but we' spent our weekends and four families from our church spent weekends there and our family spent a lot of time there...purchased in 1975 thru '85 at which time... 1 Harberts: Have you ever, you talked also about the fact that you were paying taxes as well as, now investigating what liability you may be at risk at since you are the owner. Have you researched that issue before hand? Has it ever been an issue or what prompted you now to start lookin at the liability issue and things like that? ...use or if you're talking about misuse? 1 Ken Durr: Well, it's been a concern right along and I do have insurance coverage. But the way things are today, no matter how much insurance you, have, you still...and I don't like that exposure. And I don't feel I should be exposed to that kind of exposure on my own property by misuse. Farmakes: You mentioned before that there were a reduced number of residents that had use under covenants of your purchase agreement for tha reservation...What was that in regards to? Ken Durr: The 8 lots...When we purchased the property it was zoned. ..for, the private use of the heirs of whoever the original platter or...and the advice that I received at that time was not to be too concerned about tha because there were only 8 lots. And the comment made to me was that in checking with the city, that they said there could never be more use than that... Tom Owens: And that's of course a pretty critical issue that's before thI city and in fact if you take a look at your maps and you go from the plat map showing the 8 original lots, the current half section map showing Lot 3 and 4 split into 16 new lots, you have to look into the future and look' at the other lots that aren't subdivided and wonder what's going to be happening next. And at the time of the 1981 survey, the number there is users or property owners. Today it's supposedly 25 or so. I think there might be 1 or 2 people in the audience wanted to make a comment. Batzli: Okay. Is there anyone else that would like to address the I Commission? Dana Johnson: My name is Dana Johnson. I live at 50 West Pleasant Lane 1r Tonka Bay and I own the property south next to Schmid's Tract, or reservation there. First of all I want to oppose the Schmid's tract II Planning Commission Meeting June 2, 1993 - Page 32 II recreational and agree with Ken Durr. I've been involved with my property I for approximately 3 years now and I've been eyeing that property for the last 5 years. I lived over in Minnewashta Heights for the last 12 years, since 1979 and I'm an avid boater and waterskier and I've never seen, I've never seen more than 2 cars there on that lot in the last 12 years or 15 I years I've been going over there. Some of my concerns are, you know I guess obviously the concerns that Ken expressed also but the maintenance of the recreational beachiot. Now in the last 3 years I've spent a lot of I time, almost every other day over there fooling around with my lot. Just doing things that you do when you're getting ready to build a home. And in those last 3 years, I really haven't ever seen the grass mowed over there. I I've never seen the creek cleaned up except when I do it, and I do it all the time. And the kids, you know obviously you know I don't think the Schmid's Tract people are abusing it at all. I do think there are people coming in there. Like for instance this, here's some pictures that I just I took on 5/30 of '93 and it just shows you car batteries in the creek. Oil cans. Beer cans. Things to that effect. You know it hasn't been maintained and that's a big concern of mine and my, because I have two kids I too. And there's glass bottles in there. All sorts of different things that I cleaned out of that creek at time to time. Also you know, I look at the parking area too and there's no other areas on the lake with 50 feet of parking that has, that can park cars there. An example, probably the best I example of that would be Minnewashta Heights. They have similar, they have 60 feet of, and that's where I used to live over there. And they have 60 feet over there and they're not allowed to park cars down there overnight I or have a parking area, and they have a paved parking lot, parking ramp all the way down to there. Plus, when you take in consideration of the creek, they do have 50 feet of lakeshore. 50 feet of property but about 25 feet I of it is non - useable due to the fact that there's a creek there...before too when I have seen them, just the other day I did and they were drinking and partying down there making a lot of noise. You know another point is I see people again from all over the area stopping there with their cars. I Using it as a swimming area. I even know of one person in Tonka Bay that goes down there, the last 3 years and swims with his dog down there. Takes his dog swimming. My big concern too is like with Mr. Owens said, is that I the development there is going to get bigger and bigger and bigger. Just like the whole area has grown in the last 5 years. And there's 25 families there now. How many more families can get there? I feel like the Schmid I tract area has been abused by other people that do not live there and I just feel like there isn't any accountability there at this time. Again, there's no association members. There's no people that are collecting dues or anything, so thank you. I Batzli: Thank you. I Farmakes: I have one question of Mr. Carlson. Did the association have a permit from the DNR to modify the shoreline? I Gary Carlson: The shoreline is such that I could have done it with a...and you can't have a beach and have children climb over an ice heave. All of the property owners, including Mr. Johnson, have gone through tremendous beach changes and all of the owners along the whole western edge of that I lake have changed that beachiot from what it was when we first bought it 23 years ago. There were just lily pads up the shore...and brush growing... Planning Commission Meeting June 2, 1993 - Page 33 Now there's homes with lawns down to the lake. Sand and all of the weeds have been poisoned out of the bay that we...I went out on my dock just thil other day, look off the dock. Instead of seeing, as I have in the past, the green weeds, perfectly green weeds, there's what's happened in Minnetonka. People poisoning the weeds and they don't allow the lake to act naturally. There's slime on every one of those. It's just getting t be the weeds. Farmakes: Okay, so you didn't have a permit. Gary Carlson: We didn't modify it any further than what we have through the years...It wasn't a significant change. I go down with my shovel and put back the hemlocks...We have an offset we have to stay in from the edg of Mr. Durr's property, or the surveyed edge of our 50 feet and that we don't want to disturb. That surveyed area. Then we have an area where t kids play in the sand...seaweed is accumulated you rake that off. Then y leave that and the...it's not a significant change. Batzli: Okay, thank you. We have someone else that wants to address the Commission before I'm going to give you rebuttal time here. Mary Jo Moore: It's Mary Jo Moore on 3231 Dartmouth Drive. This is I obviously more complicated than the normal beachlot ordinances. I just want to go on record that I'm opposed to any further expansion than what the City did on the '81 survey. I am for any beachlot. In this case I ' wasn't aware there was a beachlot on Lake Minnewashta. I've been a resident there for 13 years. I'm aware of Dana Johnson's property, where the house that was torn down. From that point east, I always thought it was just the greenhouse property, or the Smith greenhouse. Something and it was always very wild. In fact I never even noticed Mr. Durr's house until the fire department burned it down. So I don't believe there's been much useage of this property but I'm going to defer that to your '81 cent. and ask that no expansion beyond that. Thank you. Batzli: Okay, thank you. If you'd like to address some of the points, I'll give you a couple minutes but please, try to be brief. Mike Melkert: Brian, I'll keep it very short. You have to realize I didn't see some of this evidence before the hearing tonight so that I need to address it right now. Also my biggest fear is that a lot of irrelevant issues have been raised by Mr. Durr and his attorney. And my biggest fear is that this meeting is going to be closed and one of you's I going to pick up on that and it's not relevant and it's going to take control of this whole thing and the decisions going to be made on an irrelevant issue. So I just want to run down those real quickly. Mr. Durr's attorney just said to start off with that if one thing is proven tonight, it's going to be shown that Mr. Durr has spent a lot of time and money on his presentation this evening. The fact that he's affluent and has the ability to spend a lot of time and money is not relevant to this I proceeding or the fact that he can beat his less affluent neighbors to death by filing legal proceedings. What's relevant here is the Chanhassen ordinances and what was in effect in 1981. And Commissioner Conrad raise that point. That what you've looked at all the time in the past is what there was in 1981. That is the relevant issue here. The other issues th II Planning Commission Meeting June 2, 1993 - Page 34 have been raised are not relevant. The issue about the easement is not relevant to your proceeding. What Mr. Durr said is not correct. He's ' trying to get sympathy from you. That easement was put in in 1914. He had an attorney from Dorsey - Whitney examine his title. That attorney noted the easement. The property, as the attorney on your commission will tell you, ' is a bundle of sticks and you can split off rights to that property. He bought his property knowing that easement was there and knowing that both the heirs and the assigns of the property owners had a right to use that property. And they've testified to that over the years, over the past 30 ' years, over the past 10 years, in 1981 -91, that they were using that property. I'd further like to point out that whether or not the Watershed District has an interest here is not at issue in this meeting. What's at ' issue here is whether or not the permit's going to be granted and if something needs to be done with the Watershed District, then that can be addressed with the Watershed District at a later date and it's ' inappropriate to bring that up at this meeting. Finally, we've asked that you reconfirm your previous recommendation and also allow them to unload small boats at the ramp based upon the evidence and based upon the written letters that I've given to you with my letter. Because we have now ' submitted additional evidence on that point. Mr. Durr has not presented any evidence to contradict that. His slides and the survey represent a slice in time. They represent one minute in one day in 1981. We've had ' oral testimony here from residents that that dock was out in 1981 and that the property was being used. There were canoes down there. That there were up to 10 cars down there in 1981. That this property was being used ' as we are specifically asking the permit to provide right now. Mr. Durr has not disputed that with evidence and you need to understand that. And the fact that his affidavit and his aerial photogrsphs conflict prove that point. They prove that the dock was out there when the person that made his affidavit saw it out there that year. Made the affidavit but it wasn't out there when the aerial photograph was out there. It was just put out at different times and that's especially true with this piece of property ' because they didn't live right on the water. They put it out when they needed to use it. They had boats down there when they were using the boats. They didn't store them down there permanently and that's not disputed at all. That the boats were not kept down there for the entire 1 summer. So of course somebody that goes down there for one day is not going to see everything. The final point I'd like to raise is that March 17th hearing, Mr. Carlson testified as to leaving boats overnight and ' leaving boats on the dock and at that time he found there was sufficient evidence to recommend that that be placed in the permit. I noted that he did not testify to that tonight. He'd be happy to do so if you'd like him to testify to the use but you've heard it already and it's already in the Minutes and I'd like to rest on the Minutes, unless someone has a question as to that. Batzli: I don't think so. Mike Melkert: Okay, I have nothing further. 1 Batzli: Okay, thankyouu very much. Is there anyone else that would like to address the Commission? 1 Audience: Can I make a brief statement? II j Planning Commission Meeting June 2, 1993 - Page 35 1 Batzli: Is there something new that hasn't been talked about yet tonight? Audience: Well it's something... , Batzli: Ah no. We're not here to talk about the easement.tonight really Okay. Is this something new? Gary Carlson: In '81, those are the years when a lot of waterskiing was being done by our group and by the Gelisch's and the Friberg's and we a 11[ of times waited until the weather was well warm to even put out a dock. We'd ski the first several times without a dock. But we did eventually get the dock out that year. I do have one suggestion. I made suggestions to Mr. Durr through the years that as he develops his property can take this 50 feet and add it to a conforming beachlot but our access was started before the city was a city. Back when it was a small village and it's been a grandfathered pre - existing conditional use and continued in a recreational manner. The one suggestion I would have to Mr. Kenneth Durr is when he does develop the city requires certain amounts of properties for park and recreation. He can donate the 50 feet. He can also give the 50 feet anytime he desires a value on it to the Minnetonka Watershed District and you will not have to pay taxes on it any further. It was put in Schmid's Acres that Mr. Durr now owns. There were 7 or 8 children then when Schmid divided and that's why, the Schmid that got the lakeshore, he has to pay the taxes on that. All the other Schmid's and heirs and assig that didn't get the Lakeshore, they get to use his 50 feet of paid lakeshore because he has the other 800 feet. That was under great wisdom, by the Schmid's when they divided it. Batzli: Okay, thank you. Is there a motion to close the public hearin t P hearing. moved, Conrad seconded to close the public hearin . All voted in favor and the motion carried. The public hearing was closed. Harberts: As I understand the issue before us has to deal with 1981. I'll concerned about the survey's reliability. I have to concur that it is just a point in time. I think Mr. Durr did an excellent job investigating. Presenting the information. With Mr. Carlson, as I understand really the burden in my mind of proof was needed was to establish the recreational use of the property. I think there certainly is an issue of accountability IF here. I'm not too versed in you talk in the area of accountability in ter of how it's maintained. If it's good or bad but I think that the Association or whatever may want to become a little bit more structured and look at that. It's not going to get any better. I would, I'm in a positil at this point to basically reaffirm my decision that we made in March of 1993 because I feel that there has been ample information that supports that this was a recreational facility. If there was a dock, whether or no a dock, I don't know for sure but I guess I'm just going to rely on the testimony that was provided. We've got someone here from 1959 that can attest to the use of it. To me that provides me a little bit more information to base my decision on than picture in time. It certainly id" confusing issue. Batzli: So you're reaffirming what we did on March 17th, which was 10 of street parkings, no boat launch, 45 foot seasonal dock, one canoe rack, oll 1 Planning Commission Meeting June 2, 1993 - Page 36 boat on land, one boat on dock? Harberts: Yes. Batzli: Ladd. 1 Conrad: Things have changed in my mind. I find it tough to get my arms around this because the last time you were in I was not really clear on where the association, where the people were and where the access was and ' where the neighbors were. I think it's a little bit clearer now. Definitely there's a recreation beachlot here with certain rights. Some things bother me and they've been brought up tonight. And some things that just have to change. And we heard some of them. I think the accountability and the maintenance issues, to me access is the big issue. When I see a road that's been put in, it looks like a road. It's not paved but it's a road and what we've done with other, any kind of beachlot, if ' there's a road going in and there's a non, basically a non resident type issue, it's uncontrolled. And that worries me a great deal about this one. There's got to be some control. On the other hand, this is a good example ' I think of a low, you know what I've read into the situation. It's a low useage property, which is real good and I like that. I think it serves the neighbors and I don't think in general it's been abused by the owners of ' the reservation. And I don't know that there's an association. I don't know what it is. And I don't know what we're going to do tonight because I do recognize seriously as the parcel develops and a neighborhood goes in, I'm not comfortable with the beachlot looking the way it does today. What ' we try to do is protect a resident from intensive use. Make it pallatable, whether that resident comes in later or whatever. And I'm a little bit worried about 10 cars on a 50 foot strip parking. Now if they were part, ' the owner was part of your association, I'd let you struggle that. You'd work that out. In other words, well. And it would be far better than any solution we'd come up with. 1 Batzli: Can I interrupt you just one second Ladd. Kate, what did we do with the apartments on the control issue? Can you refresh my memory? ' Aanenson: Sure. That question came up is legally could we force them to put a gate up. The City Attorney's position was no. But in effect, and in being good neighbors they decided to in their own best interest to be good ' neighbors with the adjoining property owners, that they would put a gate up to add to security because that was the main issue. And it was just more good neighbor kind of thing that they did secure the property. 1 Mancino: As we did on the Colonial Grove too. That one has a nice gate and you know right away that it's private property. ' Aanenson: And a lot of them do have posts and I think that's something that you could recommend too. They're posted association members only. Batzli: Okay. Sorry Ladd. Conrad: No, that's a valid point Brian. But we need those things happening on this property. And maybe we legally can't do it. We can 1 encourage it but I think it's something that is real. It's very evidentally 1 Planning Commission Meeting June 2, 1993 - Page 37 in need. Okay, going back through. And to tell you the truth, I'm not II sure what kind of motion I'm going to make tonight or what I'm going to vote because if I don't see some things happening from the association, I would be a lot more strick in what I'd allow happening on this land. In other words, if I don't see a gate going up, I would not vote for 10 cars or 5 or 6 cars being there ever. So I guess I'm, the more I think about this, I don't know that I can come to a good solution myself tonight and recommendation. It's almost like I'd like the parties to determine what • should be. But let me tell you just some things if I were to look at it. There was motor vehicle access and I think that should be. The off street parking, we said 10. I don't think that's appropriate for this area as i develops. I don't think I'd want 10 cars parked in my property. So I ha a problem with that. Even though maybe there were 10 at a point in time, sometime, I don't think that's appropriate for a 50 foot wide strip. And don't think there's any evidence to show me that there were 10 cars so I could go back and put down any number of cars that I thought was appropriate right now. The boat launch, I don't like the boat launch. I don't mind it for canoe launching and when I think of fishing boats and t� last time in, I think of fishing boats as 10 and 15 horsepower motors. I don't think of them as 60 horsepower motors. That's still a waterski boat to me and when I see an access that's been driven down there, that bother me and I know what you're saying in terms of grooming it for a beach. Boy it sure looked like a boat launch to me. It looks like a launch site. The docks I don't have any problems with. I think that's not abuse. I think that's appropriate. I think that speaks to the intent. The intent that they've used it in the past. The canoe racks, I don't know. If it's well designed, and usually we see where a canoe rack goes and see how it fits with the neighborhood. Well I don't see that now so I would have a tough I time. Is there one there? Kate. Aanenson: No. Nancy had suggested and she mentioned to me earlier and that was that they come in with a site plan showing how they could do that, Conrad: It's almost like we have to see it to even talk about this because I wouldn't let it, if it's not done appropriate, according to I what's going to develop next to it, then I'd have to go back to the 1981 survey. It's not there. It shouldn't be there. I think, and the boats on land. I'm not sure what that is anymore. There was one there and if that's the way it is, I guess that's the way it is if it's been documentec' 5o anyway, I think there are, I almost have to treat this a little bit with some flexibility and say that this is not the beachlot that I would like have next to my house. They have the right to have it there. I think they've kept the useage typically very low but I want, which is perfect fo this type of parcel. But I don't know how to react to what's in front of me tonight. , Batzli: Fair enough. Matt. Ledvina: Well, things have changed from the last time we saw this. We have the city inspection report which shows there was no dock there. And when we looked at this the last time, we thought there was a dock there i 1981. In 1981, last time, or I should say the last time we looked at thi we thought there was parking use and our inspection report says there wasn't. So I don't know. I guess when we started this we were to look at II Planning Commission Meeting June 2, 1993 - Page 38 the 1981 survey and this apparently says there are no docks. The documentation, the photos that were provided shows that there wasn't a ' dock. There may have well been one, or there could have been one there but I don't have proof that there was one there. So I have to say that I would support no docks and I would support no parking. I'm not real comfortable with coming to these conclusions so I don't know. It's difficult to look at this. Batzli: So the antidotal evidence and letters from the various long time ' residents don't sway you that there was a dock? Ledvina: Well the letters that are provided in here, I don't see anything specifically saying that there was a dock in 1981. I just reviewed them and I didn't see anything. We've heard individuals say that there was a dock there but again, I don't know. It's hard to evaluate. ' Batzli: I, well I'll get to that when it's my turn. I'm sorry, were you done Matt? ' Ledvina: Well just one other thing. I don't think the boat launch should be allowed if this thing, or with this permit. I feel that they can certainly launch canoes and fishing boats with small motors but I don't ' feel it's appropriate to be taking trailers and backing those trailers into the lake. If you want to carry a fishing boat off a trailer and drop it in the water, that's fine. But I think the issues as it relates to erosion with that launch, and the protection that's needed for the lake, outweigh the discussion that I heard regarding the use of that launch. Batzli: Okay, thank you. Joe. ' Scott: Well I'd strongly encourage gating of that facility and I think what we can do is that if the facility becomes a nuisance as defined, I'm sure we have tons of ordinances of that sort of thing. Because of the sensitivity of this area, I believe that that's something we should have a little bit tighter control on. But I believe that this should be gated. I think that would, and it's obviously something that we can't require. ' However, to avoid the property from being a nuisance, which I think it causes all sorts of complications with access, that's very important. I always have trouble with basing my decision on anything that looks a lot ' like a, what I call a balance sheet. A balance sheet is this is where it was at this point in time and a company can appear to be bankrupt one day and be flush with cash the next. So I am prepared to support the decision ' that we made as a Planning Commission on the 17th of March and I'll let it stand that way. Batzli: Okay. Nancy. ' Mancino: I support also the decisions that we made on March 17th with one exception, and that is. Well first, before I go to the exception. Is that I do support, I do feel that a dock was in and I trust the witness who came up and said that a dock was in in 1981. I can tell from the survey or the inventory that there was not one on June 4th and there was not one at some date in July of 1981. The exception that I have is with the off street ' parking of 10. I walked this property in March and I don't think I really Planning Commission Meeting II June 2, 1993 - Page 39 got the scope of what 10 cars in this area would be like until I went 2 II days ago and walked it. And by the time that you put a canoe rack there, which I think would be good for the property. It would clean it up. All the canoes would be in one area. Instead of being chained to different trees in the area, it could all be on a canoe rack. And we also said tha they could, we could have one boat on land. By the time you get one boat on land and a canoe rack there, I don't think you can get 10 cars in theril What I saw 2 days ago were 4 cars parked on the property and one of the cars, their two back wheels was off the land and kind of hanging over the creek. So I'm concerned about the erosion that will happen to the creek. I would like to see the association, the applicant meet with the city and do a site plan that takes into account a dock. Specifically where the doc goes. Specifically where the canoe rack goes. Specifically where the bo on the land goes. And where they will dock the boats and then have the, they look at the safety and space left for putting, for parking 10 cars a I'd like to see that plan. Batzli: You'd like to see this come back to us? II Mancino: Yeah, I'd like to see it approved and I can't approve it in the form that it is right now. I'm also concerned about the maintenance of t property. There is consistent mowing. That there is trash picking up every week during the summer. There is some sort of ongoing maintenance that we can put on the property. So those two things I would want to see before I would go ahead and give my okay to the property. To the easemen for continual use. Batzli: Okay. Jeff. II Farmakes: I think one of the attorney's last comments here. Concerning ' ourselves with relevant items. I think a lot of what's been said here tonight is not relevant. Maybe 10% of what we discussed here is relevant to what we're doing here. There's a lot of excess baggage here. There's an ownership issue and it's not relevant here. That's really between the two parties here and what we're here to discuss tonight is what the useag was in '81. That's all we're here to discuss. I'm willing to entertain a reasonable evaluation of what that is. There's a couple of points where seems to me it's pretty murky. The City said there wasn't a dock now. That's information that's changed since my original comment. I agree with Ladd that the information has changed here. Some of it I think is very relevant to what we've been doing with these things. I have tried to follow what the city survey was at that time, making exceptions for boats. That if they had a dock that it would accommodate a couple of fishing boats, those boats were out on the lake and so on. So I tried to interpr that as to be reasonable. It seems to me that not only was this area perhaps more low intensive than we thought, but it may be changed. It's use has changed year to year and whoever happened to have a boat to put a the launch. In particular I think a trailerable boat. One thing I wante to comment on here is, we haven't defined that here. Trailerable is a defined use. Trailerable boat for access means putting a trailer, or having a boat and putting it in the water. I think that's clearly define" by the State as to what that is. Access is not picking up a canoe and putting it in the water. Or anything you carry. Perhaps here it plays into the fact that the use here seems to me to be low, goes beyond Schmid II II II Planning Commission Meeting June 2, 1993 - Page 40 Acres. There's no argument here that the adjacent property owner feels that it's any of the irritation uses or nuisance uses are...to Schmid's Acres. So the gate issue seems to me that if this is maintained as a form ' of recreation, that the beachlot and access be restricted to those people who it's intended to be used by. That brings me to the next issue. We did not probably discuss, because there wasn't as much objection or trying to clarify what the parking use was at the time. I took the applicant's use that 5 or 6 cars were what was in use there and there weren't any boats there at the time. The issue would seem to me that the property was large ' enough for 5 to 6 cars. It's not large enough for 5 or 6 cars and trailers and it's not large enough, I feel certainly for 10 cars, even though I voted for it. With this information that we have now, I think perhaps I should not have. I will again go back to the survey that it seems to me ' that there were cars parked on that site, that it should be very limited. And it also plays into the issue of, that if there isn't a gate and we allow cars there, that we'd be leading into a problem of who's there. There's Schmid's Acres people. The property adjacent to the reservation or is it the people who are driving to that access parking there and partying. One of the things though that really I found bothersome. We have been discussing this for quite some time and I have property, lake property that I have improved. I went through the process to apply and pay to modify the lakeshore and it's a very specific process. As far as I interpret what I have read, you are in violation of that process of what you did there. And ' I think also the intent of what you've done is to expand the use for trailerable access to that lake, which is in clear violation of what we're talking about here. I think the before and after pictures is quite telling ' and I think the city should look at that and discuss that with the appropriate people of whether or not that's in violation of city or state law. I would not be adverse to tabling this mess, if that's what wants to be done. Otherwise I'd be willing to vote on it too but I would not want to veer from the city's original survey here. Batzli: So where you would differ from the March 17th recommendation was, ' you'd delete the off street parking completely? Farmakes: Yes. Unless a reasonable agreement could be made here, a ' modification to where that would be controlled. I think the issue of controlled access was not something that we discussed. And that it was a problem. Batzli: Seasonal dock. Did not show one in '81 so you'd delete that? Farmakes: I would be willing to buy into that argument that there was a ' dock there and not put out or one the year before based on how the reservation was set up and access to the lake. Batzli: Canoe racks, there wasn't one so you wouldn't allow one now? Farmakes: Based on what we've done with the other lots, we have not been tight on whether or not they can have canoe storage on property. Batzli: And the boats on dock, was none in '81 so you'd put a 0 there? Farmakes: I'd put a 6 there. A 1" Planning Commission Meeting June 2, 1993 - Page 41 Batzli: Okay. And if it came back, what would you be looking at? Farmakes: I'd say that the issue of the access and how, whether or not they put a gate up or whether or not they'd store cars on there. It seem to me that those are kind of an interrelated issue. And it seems to me because it is a low use, and there is garbage and there is a nuisance factor there, that maybe they can come up with something on how to modify" that. Batzli: See I come back to your first point though. 1 Farmakes: That it's not part of the '81. Batzli: Which is it's not part of it, yeah. Farmakes: But it is, as I said before, sometimes when you look at these things there's a practical issue to look at as well. When we're defining it. In the interest of good neighbors, it seems to me there's a problem there. Batzli: Thank you Jeff. I was sitting here racking my brain during part' of this process. My father lives on Lake Minnetonka and I've put in a dock every year since I was knee high to a grasshopper, and I can tell you jusil about what happened every dock putting in event but I would be hard press to tell you what years some of the neighbors put their docks in and out. Or when we put our's in. Sometimes bad memories fade I suppose. Put it • early and it's kind of chilly but I'd have a tough time with that. And y know, I don't know how I can appreciate that some of these people are saying the dock was there, wasn't there. But when you put it in, I built some docks in a channel, rebuilt some and I can't even begin to tell you the year other than it was probably when I was in high school or college that's a swing of about 7 or 8 years. So I have a hard time really kind of trying to figure out what people are remembering and what they're not remembering because I for the life of me can't remember it and I'm doing every year it seems to me. Maybe I am. So having said that, I think that the recollection of a lot of people is that there was a dock here. It seems that there are canoes or boats or something on the property, at lea one, back in '81. So the thing that I would change, based from our last recommendation, is to eliminate the off street parking. I would allow a canoe rack. I think it's a low intensity use. I don't believe that that'll really what I thought we're doing here, and we may become hypertechnical over this point but to figure out what the intensity was back in '81 and make sure we're not expanding beyond it tonight. I just don't see how allowing a rack to be built for people that may store canoes there from time to time increases the intensity. And the boats on the dock. I real y haven't heard anything from the applicant that there was one there. I think what maybe he was getting to that point when he talked about he was doing a lot of skiing back then. But I don't know that he said he actual docked anything there. So I would view as our March 17th results except I would eliminate the off street parking and the boats on the dock. ' Harberts: What's your basis for eliminating all of the off street parking when in fact there's, you know we're allowing the dock because we've got supporting testimony. And I gathered from the same supporting testimony II Planning Commission Meeting June 2, 1993 - Page 42 II that there was off street parking. And so is it just from that practical perspective? I'm just trying to get a basis here rather than just saying, I no off street. Batzli: I didn't read from the letters, and maybe my recollection's fuzzy here but I didn't read from the letters that they said they drove down II there, did they? Harberts: Well I don't know if it was primarily from the letters but from I the testimony tonight and I would certainly be open to revisiting the 10 versus some other maybe a lower number but I think that the question here is is that we're basing the decision on basically testimony tonight in I terms of what happened in '81. And so I think, I'm just wanting to make clear in my mind that we're being consistent rather than okay, we'll give you this but not that but I think the issue of what's practical, especially with what's going to be the potential development. Then also, I think I there is a clear issue of accountability because I think from the entire Planning Commission as well as from the city, we want to make sure that we're good neighbors. We've got an issue of what's not perceived as a good I neighbor so I think that accountability issue's there but I think, you know from my perspective right now is, what's the, how do you support zero street parking in terms of the rationale based on the rest of your decision here? II Batzli: My decision was based on the fact that, as I recall, the only thing that was said about the parking was if his family or his wife's II family came for the weekend, they might park down there. 4th of July or something. I Scott: Wouldn't it also depend too if the date of our survey was a Wednesday when there's nobody there versus on a weekend, and we don't really know when that. We have the June 4th for the '81 survey. Can you figure out which day of the week. If it's a Wednesday, I think that's II significant. If it's a weekend. Aanenson: I'm sure it wasn't a weekend. II Batzli: What I'm getting at here is that. I Scott: Okay, so it was during the week, because business hours. Aanenson: Right. II Scott: And how can we determine, and it seems like since the useage was relatively low, it was primarily used on the weekends. I Batzli: That's the wonderful thing about this is that reasonable minds can differ but what I heard was that, his use was that he was using it as a parking lot when family came over and not in really connection necessarily with the beachlot and not by residents or potential users of that beachiot. I He's using it as a family parking lot. He's not, it's not the people that are coming from the houses that have the right to use it. It's his family and his wife's family which to me is not a proper use to establish that II there was a use by the people that could use it on the property. That's Planning Commission Meeting II June 2, 1993 - Page 43 why I'm saying there was no use, because it wasn't a proper use. Now, if!! he wants to convince the Council, fine. He can enter more evidence. I'm sure the City Council will let him but that's where I made my decision wa that the use that he was talking about was his family's use and not the people that had title to use that lot. So okay. And he said that, I thin I ran down through it and I would entertain a motion. I've heard a coupl people say they want to see this back. I don't really want to see it bac I think that both sides have presented a lot of evidence. They gave it a good shot. Both sides. I didn't feel like there was, there may be a feeling that it's kind of somebody trying to beat up on you but I think they did their homework, and as did you. You got a lot of the people wit l' a lot of memories out and I appreciate both sides efforts in that regard. But I don't think that seeing a site plan would help me decide this issue What I'm trying to look at is what evidence did they present regarding th� use in 1981 and it should, we're trying to determine that intensity and I think we can do that tonight. Harberts: Before a motion is made I'd like to just maybe get some reacti if a possible motion was made in which, you know if it was moved on to the Council but with the direction to develop, and I'll use the word site pia Maybe a written understanding or something, in terms of having staff wor with them to determine what practical for any, if any off street parking and then I guess the question of accountability because I. Batzli: Well the thing that concerns me most about this is what Ladd brought up and that is, we may not be able to force them to put a gate up but it sounds like that's the big problem that we're seeing. Is we're II seeing environmental pollution by the kids, whether they belong there or not. By throwing cans and bottles and whatever and that's got to be controlled somehow here. Whether it's the city doing it's job better or asking all the neighbors. Basically going out and telling them, anytime you see anybody, call us and after a while the kids will get discouraged 1 that's the only way we can do it. It doesn't seem to me to be a big deal to ask them to put up a gate but if they don't want to do that, maybe that's the way we have to do it. But that to me is the big issue here isil to control this because it's not an intense use once you get rid of that. Scott: Is there a, from maybe you can craft a motion and get kind of a 111 spaces, no spaces, somewhere inbetween. Would everyone support 5? Conrad: No. ' Harberts: No. I would suggest that the motion include that, maybe with the help of staff, that the motion move forward with whatever, if any appropriate number of off street parking you know after staff has the tim to review it because of the environmental impact. And if the determination from staff is zero, okay fine. Zero. They're the experts here. 1 Scott: Do we want to see this again? Harberts: I don't think we need to but. , Scott: We're all prepared to vote on it? II Planning Commission Meeting June 2, 1993 - Page 44 II Harberts: I think the only issue at hand is really the off street parking. And my only drawback or hesitancy here in terms of zero is simply because II we're basing the rest of the decision in terms of allowing the dock and stuff based on testimony and I feel the testimony is there but from a practical perspective, it may not be appropriate for off street and so I that's why I'm saying move it. If the decision is to move it forward to the Council, then with the suggestion or recommendation that staff make a determination with the people involved, to insure that there is accountability, I think that's a practical matter. And second, to I determine if and how many off street parking should be allowed. Also given the fact that we've got some future development that's going to be occurring in the area. II Conrad: Definitions change over time and off street parking now is a whole lot different than off street parking back in '81. As you build new houses II next to this, it takes on a whole new definition. And that's why when we go back to '81 and we say, what was off street parking, geez it could have been 50 real easily. I know you can probably get 50 cars parked side by side there. I have a problem with that and sanctioning that use. What I we're doing is sanctioning a use for the future. Forever. I just want you to think about that. I Harberts: But I think Jeff's point though in terms of off street parking was valid in terms of trailers. I don't feel this is appropriate for trailers. 1 Farmakes: It would be an expansion of use... Harberts: But what constitutes off street parking you know back in 1981. I Did that include trailers? I don't know. That's why I think. Farmakes: I don't think it said that there wasn't any boat launching. That I would be trailers. So the issue, the point I was trying to make is that there is an association of these people who are using a nuisance factor and parking in the area. Not launching boats but parking there and bringing their kegger or whatever and creating a problem. And legitimate people who I are driving up there and want to go swimming. They just happened to drive out there because they don't want to walk a block or whatever it is to get there. My point is, if you put up a gate or I was just offering that as a II solution. The problem perhaps if there was a gate, as a trade -off. Batzli: Let's not speak in hypotheticals any longer. Let's speak about I this in concrete terms of a motion. Conrad: I would make a motion to approve a non - conforming recreational beachlot permit for Schmid's Acres Association with the following I stipulations. That motor vehicle access is approved. That there is no off street parking allowed. That there is no boat launch permitted. That a seasonal dock is approved. That canoe racks are approved. That a boat on I land is approved. That boats on dock are not allowed. And then I would strongly encourage the homeowners association to develop some kind of a maintenance program. That the homeowners association put up a gate that is controlled by the homeowners. That a site plan be submitted to the city II staff that would tell them where the different amenities of this site can II Planning Commission Meeting II June 2, 1993 - Page 45 1 be located. Batzli: Is there a second? 1 Mancino: I second. Batzli: Discussion. Harberts: I'm a little uncomfortable in terms of the no off street parki just simply in terms of basing some rationale but from a practical matter. from a future perspective, I guess I have to endorse it from that perspective. I guess as I understand the applicant does have the opportunity, if they felt strongly about it, to bring it up before the Council and I think that there's avenues that if they do want off street parking, they can talk to staff and then work it out with the Council. S since this is a recommendation, I can support that. Batzli: I thought you were going to say that we could put up a little park and ride right there. Harberts: Hey, Dial -a -Ride goes there. Scott: I would agree with that. With what Diane said and then if the applicant wishes to lobby for things that aren't in here, they certainly can go to the Council with that. 5o I would support Commissioner Conrad's motion. , Batzli: Any other discussion? 30 seconds or less? Gary Carlson: Yes. The Council was about to pass this and the only reasi they sent it back to the Planning Commission, they wanted to recommend a gate and signage to prevent the people... Batzli: I think if you present evidence to the Council that the use existed in '81, where it was people who were entitled to use the beachiot and not just someone's party and you were using it for excess parking, tile they may give you a few spots. Ledvina: Mr. Chairman, I have one thing that I would like to add. I guess I would like the staff to evaluate the potential attrition of non- conforming use through the lack of a dock or whatever. If that's the cas so I would like the staff to evaluate the date that's been generated, the aerial photos, etc, I'd like that to bear into the discussion that goes 1 to Council. Batzli: Okay. You can have 30 seconds too then. Tom Owens: Point of clarification. I believe the motion said with canoe racks. Are we going to have canoe racks or one canoe rack. Aanenson: One. • Batzli: I think one. One, we'll clarify that. Thank you. Is there any' other discussion here? 1 II Planning Commission Meeting June 2, 1993 - Page 46 Mike Melkert: Can I just make one other point? Batzli: Okay. Mike Melkert: I think that since we can't read the testimony back like you would be able to in some other type of proceedings, he did testify that there were cars down there in '81. In addition, the affidavits submitted by the other side from the attorney specifically says that there were 2 ' cars. He saw 2 cars parked on the property. And that's also in your record and I just wanted to point that out because that's a piece of evidence that you are considering and it's a piece of evidence that is ' sworn under Minnesota law. Batzli: Right. I would agree that this says there's 2 cars there but it doesn't say when that was. It was a maximum of 2 cars without a date ' attached to it. And like I said, if you can present evidence, whether it's antidotal or letters or affidavits yourself to the Council, they may give it to you. Our feeling is we're very concerned about it, obviously and we ' weren't convinced that we should, that you carried your burden on that particular thing. That doesn't mean you can't give it a shot to the Council. Is there any other discussion? ' Conrad moved, Mancino seconded that the Planning Commission recommend approval of a non - conforming recreational beachlot permit for Schmid's Acres Association with the following stipulations: Motor vehicle access, ' seasonal dock, one canoe rack and one boat on land are permitted. There will be no off street parking, boat launch or boats on the seasonal dock permitted. Also, to strongly encourage the homeowners association to ' develop some kind of a maintenance program, to put up a gate that is controlled by the association and that a site plan be submitted to the city staff that would tell where the different amenities of this site can be located. All voted in favor and the motion carried. 1 PUBLIC HEARING: ' WETLAND ALTERATION PERMIT REQUESTED BY THE CITY OF CHANHASSEN TO ACCOMMODATE IMPROVEMENTS TO POWERS BOULEVARD. ' Kate Aanenson presented the staff report on this item. Batzli: So you're mitigating /no net tossing by the shaded in replacement area? Aanenson: Correct. ' Batzli: Okay. And are you doing all of this work in accordance with the newly adopted Best Management Practices dealy bob. Aanenson: Yes. Mr. Hempel assures us that we are. ' Batzli: That's not a condition here. We normally require that of all of our applicants. - r Aanenson: Thank you.. That should go in there. And 1 also failed to 1 � H