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8. Approve Finding of Fact for Colonial Grove HOA Recreational Beachlot C ITYOF 690 COUL DRIVE • P.O. BOX 147 • CHANHASS MINNESOTA 55317 ' (612) 937 -1900 • FAX (612) 937 -5739 Action by City Administrator 1 d ✓ �wR Modifier1 MEMORANDUM Rejecter Date 4 1-, - �. TO: Don Ashworth, City Manager Date Submitted to Commission FROM: Kate Aanenson, Senior Planner Date Submitted to Council 1 DATE: September 22, 1993 SUBJ: Approve Findings of Fact for Colonial Grove Homeowners Association Recreational Beachiot 1 On September 13, 1993, the City Council reconsidered the number of boats that may be docked at the Colonial Grove Recreational Beachiot. Attached is the Findings of Fact as prepared by 1 the City Attorney supporting the Council's action. Approval is recommended. 1 ATTACHMENTS 1. Findings of Fact 2. City Council Minutes dated September 13, 1993 1 1 1 1 • 1 1 .1 11 CITY OF CHANHASSEN CARVER COUNTY, MINNESOTA IN RE: Application of Colonial Grove FINDINGS OF FACT ' Homeowners Association for a AND DECISION Non - Conforming Use Permit ' On September 13, 1993, the Chanhassen City Council met at its regularly scheduled meeting to reconsider the Application of the Colonial Grove Homeowners Association for a Non - Conforming ' Use Permit for the Colonial Grove Recreational Beachlot. Specifically, the Application, submitted pursuant to Section 20- 79 of the City of Chanhassen Zoning Ordinance, is to amend the existing permit by establishing a baseline use of Colonial 1 Grove's dock for purposes of mooring boats overnight. The Planning Commission conducted a public hearing on the ' proposed non-conforming use preceded by published and mailed notice. The Planning Commission heard testimony from the Colonial Grove Homeowners Association, the Lotus Lake Homeowners Association, Inc., and all other interested persons wishing to speak. Based on the hearings conducted and the evidence received, the City Council now makes the following: 1 FINDINGS OF FACT 1. That the property is currently zoned R -1. 2. On June 15, 1981, the City of Chanhassen granted to Bloomberg Companies Incorporated and Lotus Lake Betterman Association, Inc., a non - conforming use permit to maintain and ' operate a private neighborhood association recreational area, hereinafter referred to as Colonial Grove Recreational Beachlot. Said non - conforming use permit neither expressly nor impliedly ' refers to the number of boats which were moored at the beachlot overnight in 1981 or the amount which would be permitted in the future. 3. On February 24, 1992, the Chanhassen City Council amended Chapter 20 of the Chanhassen City Code concerning non- conforming beachlots. The amendment to Section 20 -79 requires ' non - conforming recreational beachlots to apply for a permit. Said permits are issued upon receipt of satisfactory proof concerning the nature and extent of the legal non - conforming use. 1 4. Due to the pre- existing permit obtained by the Colonial Grove Recreational Beachlot in 1981, the only issue which is considered in the current application is the nature and extent of the proposed non - conforming use of the Colonial Grove Recreational Beachlot dock for overnight mooring of boats. 1 8777 1 1 5. The survey which was taken by the City Lake Study Committee in 1981 and indicates that there were never more than three boats moored overnight at the dock. This evidence provides the most accurate benchmark and serves as satisfactory proof that no more than three boats were moored overnight in 1981. The accuracy of the survey is supported by the Lotus Lake , Homeowners Association, Inc. letter dated July 20, 1993 and signed by past and current Board members. Further proof is provided by the eight affidavits of Georgette Sosin, Harvey Parker, John Wanielson, Raymond Brizorra, Leann Hanreiux, Linda Sathre, Mary Jean Totino and Alisha Srozovich, all of which state that there were never more than three boats moored overnight at the dock in 1981. The Applicant's presentation of five affidavits of Colonial Grove occupants in support of their position that there were eight boats which used the dock for overnight mooring in 1981 is not satisfactory proof. The recollection of these five residents is overcome by the evidence that there was never more than three boats moored overnight in 1981. Based on the foregoing, the City Council of Chanhassen makes the following: DECISION 1. The non - conforming use of the Colonial Grove Recreational Beachlot for overnight mooring of boats did not exceed three (3) boats in 1981. The non - conforming use permit shall be amended to describe the allowed use of the Colonial Grove Recreational Beachlot dock for the overnight storage of a maximum of three (3) boats. 1 Adopted by the Chanhassen City Council this day of 1993. CITY OF CHANHASSEN By: Donald J. Chmiel, Mayor ATTEST: ' Don Ashworth, City Manager ' 8777 - 2 - 1 .1 Chanhassen City Council Meeting - September 13, 1993 1 Mayor Chmiel: No, not yet. 1 Councilman Mason: I was out of line. I was out of line, I'm sorry. Councilman Wing moved, Councilman Mason seconded to close the public hearing. All voted in favor and the motion carried. The public hearing was closed. Councilman Mason: Can I move my discussion previous to right now then? Mayor Chmiel: No. We already discussed it. 1 Councilman Senn: But I'll make the motion that we approve this and that we approve it and also ask the Recycling Committee what we could possibly do in relationship to education or something we could get in the newsletter and some other things to really educate people what. ' Mayor Chmiel: I think the intent is that they are planning to go through that process. But I think just to keep it as a friendly reminder might be a good idea. ' Councilman Wing: Now is this a motion to approve this with the mixed mail? 1 Councilman Senn: With the mixed mail and...education so people would know what it is. Councilman Wing: I'll second that. ' Resolution #93 -87: Councilman Senn moved, Councilman Wing seconded to approve a resolution adding corrugated cardboard, magazines and mixed mail as targeted recyclables which are required to be collected curbside by haulers licensed in Chanhassen and to educate the public regarding these new items. All voted in favor and the motion carried unanimously. 14- RECONSIDER CONDITIONS OF APPROVAL FOR COLONIAL GROVE HOMEOWNERS ASSOCIATION RECREATIONAL BEACHLOT. ' Public Present: Name Address Ron & Leanne Harvieux 6605 Horseshoe Curve Henry Sosin 7400 Chanhassen Road ' Susan Conrad 6625 Horseshoe Curve Kate Aanenson: At your August 23rd meeting you did request that this item be reheard. We 1 included in the packet for you the original information that we provided to make your decision which included the affidavits from the Colonial Grove Homeowners Association. In addition we provided... 1 42 1 1 Chanhassen City Council Meeting - September 13, 1993 r affidavits that the Lotus Lake residents had provided...As you recall, you recommended that... We do not have additional information. We're relying basically on the information...and they are here to provide additional information...ant we would like to note for the record that we did notify all members of Colonial Grove as well as all the lake residents. That's all the information we have. Mayor Chmiel: Okay, thank you. I believe that some discussion was brought up at the last meeting ' and Richard, maybe you'd like to clarify that. That you'd like to see some additional information as well as Colleen and, regarding the proposal that was brought before us 2 weeks ago. There were some concerns. I want to know if those had been addressed. Councilman Wing: I would agree with Kate. I think there's some more information that perhaps will be presented tonight. I'm not privy to that. Kate Aanenson: Information other than...members of the Lake Association. The Lotus Lake Association have additional information that they... , Councilman Wing: Just as this comes back to us, I just want to verify that Roger has emphasized time and time again, and I don't want to reinvent the wheel again tonight. The only issue we're looking at, I'm not even going to ask you tonight. I know what the answer is...the number of boats and the witnesses here tonight and that have been here are here to help us decide on the number of boats. The Planning Commission reviewed this twice. They determined the number of boats and passed on a representative number. Conditional use permits, development contracts, irrelevant. With this ordinance, took all that into account back in 1981 and we went through public hearings on this for how many months to try to detennine what we should do. ...quote from page 11 of the Minutes from August 9th where the attorney for Colonial Grove says, what was asked for is that we simply clarify, I mean this is their own attorney stating what they wanted the City Council to do. What was asked for is that we simply clarify for the city the number of boats that were moored at the dock in 1981 and that that number would be the appropriate number that would be approved for today's usage. So they understood the situation. We understood the situation and how we got sidetracked, I'll never know. So I guess all I ask tonight is that we try and look at the number of boats that were there and look at the burden of proof again being on Colonial Grove. The only other comment I'll make is that on the presentations from Colonial Grove, and I've said that I would not involve the individual by name but one of the affidavits they presented will not hold up in Court and would be withdrawn if that became necessary. He thought he was signing a petition, not an affidavit. It was done so to be a good neighbor and he has no qualms about representing that if it becomes necessary but in the interest of neighborhood unity, he has chosen not to be named, or he asked me not to name him, although Kate I believe you spoke with one of the parties at some point. So I just want to make that clear. One of the affidavits is no longer valid. Mayor Chmiel: Okay. Thank you Richard. Colleen? ' Councilwoman Dockendorf: I'll be real blunt here. I made a mistake when we looked at this issue before. I allowed other issues to become muddled with the very clear, succinct mission that we had to decide that night. And that was completely my fault. The second issue the city survey, which was 43 1 1 Chanhassen City Council Meeting - September 13, 1993 1 Association in 1981 or '82, whenever the survey was published, and it just seems to me very strange ' that that would have been the time I would think that if that survey was done improperly or if there were some problems with it, it seems that would have been the time for someone to react to it. Not 12 years later so I'm not sure who's memory is good. Thank you. 1 Mayor Chmiel: Thank you. Is there anyone else? If seeing none. I gave this to Don to read here and I almost forgot to mention it. I had received a letter from Cliff Whitehill and I think Council has also received these letters as well. And reiterating some of the things basically that were said and the ' position of the association confronting the 1981 part of discussion that we had last week. And I'm sure that everyone has had an opportunity to look at this. And I guess I too in looking at this and seeing some of the information that had pertained to it, I voted in the positive for this. In fact I was 1 just looking at the non - conformance use permit which is the beachlot for Colonial Grove and in there it had indicated the date of issue was the 15th of June of 1981. By coincidence Lotus Lake Association Minutes of June 16th, 1981 and the thing that I had looked at of course was the potential ' of what they had within this permit as well for 100 dock. One of my determining factors in looking at that was, and trying to determine numbers of boats with 100 foot dock, you could almost put the 8 boats on that dock with 100 feet. And in listening to two different sides, I looked at that position and ' took that position at the time. In looking at some of these other things too now, which Henry has brought forward and also Ron Harvieux, makes one really sit back and wonder. You don't dispute anyone's position that they had taken. In this particular case I think that we're going to ensue some ' discussions probably right now. And I would entertain discussions from Council in lieu of what has been brought before us with the information per se as opposed to the position that we had taken. And I'd probably like to start right on this end. Richard. 1 Councilman Wing: Well I've said for 13, this is the 14th one and I have no more to say other than I will just simply move on the reconsideration and the recommendation will be as of the last meeting ' with the change to 3 boats. Whatever was decided on picnic tables and color of the dock and whatever the case was. First of all I guess, specifically a 35 foot dock. That's what they've had all along so the 100 foot dock I think is irrelevant here. What we'd decide last time? ' Kate Aanenson: They say that they've always had a 100 foot dock...but that's what they say. Councilman Wing: Were you out there? Well the surveys state 35 so I won't argue the dock. ' Kate Aanenson: ...to the 1981 survey. Whether it was 100 feet in 1981, that's really what the issue is. The other issue...because we're looking at the non - conforming permit, the only thing that we'd be ' looking at this permit because they do have that permit, was we were looking at just the number of boats at the dock. We decided that we wouldn't. ' Councilman Wing: Yeah, that's correct. I remember that. Mayor Chmiel: Yeah and I think the only point Dick is bringing out is the fact that for the ' recreational beachlot inventory that was done in 1981, 1986 and 1991, it showed 35 feet on that. ' 46 II. Chanhassen City Council Meeting - September 13, 1993 Y g P 1 Councilman Wing: I won't question that. I'll simply make the recommendation that whatever was approved last time be altered to include 3 boats and pass it as such. 1 Councilwoman Dockendorf: I stated my reasons for reconsideration and I'll second Dick's motion. Roger Knutson: Mayor? 1 Mayor Chmiel: Yes Roger. I Roger Knutson: You can't amend the motion. Maybe I can suggest rather than move into make that change tonight. Instead you move to direct me to prepare Findings of Fact with your decision I documenting your decision making process for the record. That'd be the best. Councilman Wing: Absolutely. What'd he say? 111 Mayor Chmiel: Findings of Fact to basically make. . Roger Knutson: If we get challenged, the Courts would like to see Findings of Fact explaining in I some detail your reasons. Mayor Chmiel: With that would the motion and the second be acceptable? 1 Councilman Wing: Well yeah. Will the Minutes pick that up clear? I guess I would move on Roger's wording. 1 Roger Knutson: Yeah the motion is to direct the City Attomey to prepare Findings of Fact consistent with 3 boats...previous discussion. 1 Councilman Wing: Okay. Councilwoman Dockendorf: Second accepts that. • 1 Mayor Chmiel: Discussion yet. Michael. ' Councilman Mason: Yeah I'm glad I got to hear the comments from the Lake Area study. Knowing, I think most people in this city share the concern of what's going on in the lakes and with the 1 committees, the surface water management program and what not, the committees that I've been on, people don't take those responsibilities lightly and I certainly am willing to accept the word of members of that committee that say there were 3 boats there. I have no problem with all of that. I 1 would like to make one comment for the record on Mr. Whitehill's letter. His last paragraph, comments as to why no one will be here from Colonial Grove. He then goes on to say that the meeting of August 9, 1993 matter must be considered final and closed. Otherwise at any meeting of 1 the Council anyone can continuously request that closed matters be reopened notwithstanding the final action by the Council. Such a continued distraction from fairness and due process will not serve 47 1 1 Chanhassen City Council Meeting - September 13, 1993 either the City of Chanhassen or any of it's citizens. Obviously it is my right as a Councilmember within 2 weeks to call for a motion to reconsider a vote so I just hope Mr. Whitehill doesn't think that this isn't due process because I believe in fact what I did was due process. Roger Knutson: A motion to reconsider under your rules can only be made at the next meeting. If ' you hadn't done it at your last meeting, you couldn't do it tonight. Councilman Mason: Right. Well I just wanted the record to know I think in fact we're being very fair. But at any rate, I certainly go along with 3 boats. Mayor Chmiel: Mark. Councilman Senn: Well, I guess I'm not as comfortable as everybody else with it. I don't know. There's been extensive documentation on this and you can read through all this stuff until you're blue ' in the face. Everytime I tum around there's a new document. Tonight's no different than that. I mean I go through these Minutes now and I see the Planning Commission was considering an application by them for conditional use for 40 boats according to these Minutes, at Lotus Lake Estates. ' I mean why haven't we been given that? Isn't that a part of the city record of the Planning Commission was considering 40 boats? Henry Sosin: That's a different... Councilman Senn: I'm not saying what the Association is. I'm just reading what these Minutes say ' in front of me. So what I'm saying is, if that consideration was there, I mean again there's more information that's not in front of us on this issue and it just seems like every time we tum around to discuss it, there's more and more information and none of it's, that's not all in front of us. ' Councilwoman Dockendorf: But how does that relate? I'm missing your point. Councilman Senn: Well I think that's a fairly key point. If there was actually an application by Lotus ' Lake Homeowners, or by Lotus Lake Estates, for a conditional use permit in August of 1981 for 40 boats, I think that's kind of a key issue as it would relate. I mean this is what the Association is saying they did. Now it's a key issue in the sense that if they did that and made application, to me that's very different from what I've been hearing in all of these hearings, which is that's not what happened. They didn't make any application and there was no discussion of boats. Roger Knutson: That was a different association. Mayor Chmiel: I think that's one of the points that was just brought up recently. ' Councilman Senn: Lotus Lake Estates Homeowners Association it says here. ' Ron Harvieux: Lotus Lake Estates, we're talking about Colonial Grove. 48 1. Chanhassen City Council Meeting - September 13, 1993 1' 1 Mayor Chmiel: This is Colonial Grove. Councilman Senn: I understand that but what I'm saying is, is the Lotus Lake Homeowners 1 Association made that application. Ron Harvieux: No. No. Lotus Lake Estates is different than Lotus Lake Homeowners Association. 1 Henry Sosin: May I clarify that please? 1 Mayor Chmiel: Yes. Would you like to come up so we can pick that up please. Henry Sosin: I told you that there was nothing factual in there that would be of great importance to 1 you. What you're reading is Lotus Lake is not, the Lotus Lake Homeowners Association...Minutes, Board meeting Minutes. Those are things that we were discussing at that time. The application came I from Lotus Lake Estates which is a different beachlot organization than Colonial Grove. It has, bears no relation to this particular discussion. Lotus Lake Homeowners Association did not apply for any boats. That was another association on the lake with an outlot. 1 Councilman Senn: Lotus Lake Estates? Henry Sosin: Lotus Lake Estates. Which is just north of Colonial Grove. 1 Councilman Senn: And where is their beachlot at? Henry Sosin: Their beachlot is the whole eastern shore of that bay that's right over your left hand 1 shoulder. That's Lotus Lake that you're looking at. Kate Aanenson: They have 3 docks. 1 Henry Sosin: Yeah, they now have 3 docks. They have canoes and I think they have 9 boats. I Kate Aanenson: They had a conditional use for 3 docks. Henry Sosin: But that was through a conditional use permit. 1 Don Ashworth: It's was severely reduced. The initial application was for 40 but like you noted, it 1 was reduced to 3 and I think that they have to have well over 1,500 feet of frontage on Lotus Lake. It's a significant frontage. Kate Aanenson: It meets all the criteria for a recreational beachlot. The 30,000 square feet. The 200 1 feet of frontage so they're legitimate. Henry Sosin: I think Colonial Grove has a very tiny beachlot. 1 49 1 1 1 i Chanhassen City Council Meeting - September 13, 1993 1 Councilman Senn: What was the, at the last hearing somebody stood up and referenced an aerial I photo or something that documented the 100 foot dock. Councilman Wing: What they said was it wasn't discernable. 1 Councilman Senn: On the aerial photo? I Councilman Wing: That's right. On Minnewashta the documents, we could go back on Minnewashta and tell you what kind of motor you had on your boat. They didn't turn out clear enough on Lotus Lake. We're not questioning the length of the dock. We're conceding the length of the dock. It's irrelevant. We're only talking about the number of boats so I want to, why are we getting side tracked I on a thousand other issues? You haven't once addressed the number of boats. That's all we're doing tonight and Roger. I Councilman Senn: Dick because I look back at all the documentation and I see no documentation in the city files that says they were ever given a permit for any amount of boats there. Okay, nor was the issue ever discussed to give them a permit for any amount of boats there. I Councilman Wing: In 1981 it didn't matter. I Councilman Senn: The only thing I could find was a pre- agreement to all of that which said they can't moor boats. Or no. It didn't say moor boats. It says mooring buoys you couldn't put out. What I'm saying is there's absolutely no documentation. Here you have a development agreement that I gets into, in fact a conditional use permit that even precedes the ordinance. They've got a terrible amount of detail on everything. Every little detail except, geez it left this big gaping hole and that big gaping hole was the number of boats. It was silent on it. So what does that mean? You know you I look at this as being very cut and dry. I don't look at it as being very cut and dry and there's some real issues here and quite frankly I've seen so much information on both sides and this to counter this and this to counter that. At this point I don't think it's real clear one way or the other. 1 Councilman Wing: Is that statement true Roger? I mean I'm kind of looking here saying, it is kind . of black and white to me. This is the 14th one we've done. Is there something different about this I group? They've got some covenant that gives them right over this ordinance. When this ordinance was passed, it didn't matter what they had said or done. Councilman Senn: Okay, one other question. Isn't this the only one, at least it's the only one since I I've been here that I've seen that (a), had a pre - existing development agreement prior to the ordinance and a conditional use permit in place prior to the ordinance. I haven't seen any others like that. 1 Roger Knutson: I can't recall any which is not to say there isn't any. I don't recall them. Councilman Senn: Well I mean I asked that question last time and everybody. 1 50 1 Chanhassen City Council Meeting - September 13, 1993 I 1 Roger Knutson: I don't know if this is relevant. Just vaguely I sort of remember that there's a development contract involved in a recreational beachlot on one other one. I'm real vague. I can't tell you that that's the case. I'm sure the planning staff would know better. Kate Aanenson: There was a couple of them...they don't have a conditional use...They had a non- conforming permit. They were asked, and this is where the staff got asked to come back because the Minutes that we found from the Planning Commission said, if you do want to have boats, if you do want to have canoe racks, you must come back and ask for a conditional use. They did come back I and ask for a conditional use for the canoe racks. Well, we followed the same logic and said, well if you want boats, which it said in the Minutes of the Planning Commission, that you should come back and ask for a permit. Since they had never done that, we felt that they need to go through the same 1 process that the other associations did to clarify the number of boats. Mayor Chmiel: Okay. Anything else? Okay. Any other discussion? 1 Councilman Mason: I just want to reiterate what I said. I think my record on all these beachlots has been fairly consistent with what the lake area group has said was there in '81 and in that regard I do think this is a pretty black and white issue. And with that I'll call the question. 1 Mayor Chmiel: Question's been called for 3 boats as opposed to 8. Councilman Wing moved, Councilwoman Dockendorf seconded direct the City Attorney to 1 prepare Findings of Facts consistent with the City Council's decision to allow 3 boats to be docked overnight at the Colonial Grove Homeowners Association Recreational Beachiot. All , voted in favor, except Councilman Senn who opposed, and the motion carried with a vote of 4 to 1. Mayor Chmiel: One no and I think you've indicated your concerns with this. 1 PRELIMINARY PLAT TO SUBDIVIDE 6.1 ACRES INTO 13 SINGLE FAMILY LOTS I LOCATED SOUTH OF PLEASANT VIEW ROAD, WEST OF TROENDLE CIRCLE, EAST OF PEACEFUL LAND AND NORTH OF LAKE LUCY ROAD, TOWER HEIGHTS. Public Present: 1 Name Address 1 Larry Moloney 150 Fifth Street Tower, Suite 3500, Mpls 1 Jeff Schoenwetter JMS Development, 4806 Park Glen Road, Mpls Dennis Troy Attorney for JMS Development Jim Stasson 6400 Peaceful Lane Sharmin Al -Jaff: This application appeared before the Planning Commission on July 21, 1993 and 51 1 1 1 City Council Meeting - September 27, 1993 1 Mayor Chmiel: There's also an item here that I believe Mr. Whitehill is here on. Item 2(g). Is there anything that you'd like to address on this one Cliff? Cliff Whitehill: Mr. Mayor. I came here for an entirely different reason. I received no notice 1 whatsoever. Purely by accident I saw this... Mayor Chmiel: Okay. Cliff Whitehill: No notice whatsoever. Anyone in Colonial Grove. Mayor Chmiel: You hadn't received anything at all? 1 Cliff Whitehill: Nothing. 1 Mayor Chmiel: Okay. My suggestion would be then we pull item 2(g) and move that to a meeting within 2 weeks. Okay. Can I have a motion to move this from today and move it to October the 11th meeting. ' Councilman Mason: So moved. 1 Councilwoman Dockendorf: Second. Councilman Mason moved, Councilwoman Dockendorf seconded to table approval of the Findings of Facts for Colonial Grove Homeowners Association Recreation Beachlot Use Permit until the October 11, 1993 City Council meeting. All voted in favor and the motion carried. 1 Mayor Chmiel: We'll move right along now with the balance of the agenda. We have Visitor Presentations. I'm looking for. Councilman Senn: Don before you do, just a question. In this packet there's a 1(k) but nowhere on the agenda is there a 1(k). Is that a separate item we're going to address or what? 1 Councilwoman Dockendorf: You're absolutely right. I saw that too. Councilman Mason: Contract approval of Senior Linkage Line. Paul Krauss: That was to be on a Consent Agenda. I'm not sure where the number came from. Councilman Senn: Well it wasn't listed on the Consent Agenda but there's an informational packet. Paul Krauss: Yeah. The last item was (j) so it must have been (k) didn't... 1 Mayor Chmiel: Yeah, that was for the Senior Linkage and somehow that was left off. 1 4 1