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10. Non-conforming use permit for a recreational beachlot, minnewasht creek HOA 1 CITYOF 1 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 1 - (612) 937 -1900 • FAX (612) 937 -5739 MINN Fdmtn t7 wi MEMORANDUM Reject d_..—.��� pa /b�g —y /r 1 Date Subn tad to Commissloit TO: Planning Commission Otte to Cog' 1 FROM: Kate Aanenson, Senior Planner _�- / - f Z- a ✓ 1 DATE: September 10, 1992 SUBJ: Minnewashta Creek Non - Conforming Recreational Beachlot 1 BACKGROUND 1 This beachlot first came before the Planning Commission on May 6, 1992. At that time there was a division within the Association as to what the level of use should be. The original 1 application requested no boats, although two members from the Association stated that they have moored boats at the beachlot for a number of years and would like to continue to do so. The Planning Commission tabled this item and directed the Association to resolve their conflicts and 1 come back with a new application. 1 The Association has met and has submitted a new application. ANALYSIS The Minnewashta Creek Subdivision was approved in 1976. Although in 1979, a conditional use was approved for a beachlot, it is still non - conforming with the beachlot ordinance. There are 1 36 homes in the homeowners association. The beachlot is 10,500 square feet in area and has 60 feet of lake frontage. The beachlot does not meet the minimum requirements of 200 feet of lake frontage and the 30,000 square feet of area. 1 The association received a conditional use permit for a portable chemical toilet in 1991 (see attached Conditional Use Permit). An inspection of this beachlot was performed by the city in 1981. At that time, it was observed that there was no dock or boats being moored. There was, however, 4 boats stored on land, 4 picnic tables and two grills. There was a swimming beach 1 Is t., PRINTED ON RECYCLED PAPER 1 Planning Commission September 10, 1992 Page 2 1 with no raft. Upon inspection in 1991, a swimming raft was observed on the beach. There is no motor vehicle access to the site nor boat launching. 1 At the May 6, 1992, meeting, two members of the Association stated that they have moored their boats at the beachlot since 1981, they were the Windschitls and the Thompsons. 1 The Association is requesting the approval of two boats to be moored. At the previous Planning Commission meeting, Commissioners expressed concern with the safety of having two boats ' moored and a swimming beach. The Association is proposing to moor the boats off shore far enough so that the boats do not conflict with the swimming beach. SUMMARY The Association is requesting 1981 status quo of their beachlot with no dock but 2 boats being moored. They are also seeking approval of the swimming raft. PLANNING COMMISSION UPDATE 1 On September 16, 1992, the Planning Commission held a public hearing. No one was present at this meeting. The Planning Commission recommended approval of two boats to be moored at this beachlot. 1 1 1 1 1 1 1 1 1 1 NON - CONFORMING RECREATIONAL BEACHLOT PERMIT 1 ASSOCIATION P.C. CITY COUNCIL REQUEST RECOMMEND ACTION 1 Association Minnewashta Creek 1 Lake Minnewashta Number of Homes 41 1 Size, square feet 10,500 sq. ft. 1 Shoreline 60 feet I Motor Vehicle Access none Off - Street Parking none 1 Boat Launch none 1 Buildings not requested Picnic Tables not requested 1 Grills/Campfires not requested 1 Seasonal Dock not requested Diagram 1 Canoe Racks not requested Boats on Land not requested 1 Boats at Dock not requested 1 Boats Moored 2 2 Swimming Beach yes 1 g yes Y Y Marker Buoys yes yes 1 Swimming Raft yes yes, 1 Miscellaneous portable chemical toilet 1 * Items requested by the Association for determination. 1 1 I CITY OF CHANHASSEN 690 COULTER DRIVE CHANHASSEN, NN 55317 1 NON - CONFORMING RECREATIONAL BEACHLOT APPLICATION HOMEOWNERS ASSOCIATION: "' "' e" `�' °r s 1`+ 4 C r e er 1< I P v.• 4,6 t 0a....sA) (_ 5 s.c..4—e- A. ..4 sA. 4.+) C ONTACT PERSON: ‘ -) 1-% of w N Q. r.. R.4 a 1 N A...i e. y NT a, t s o .J ADDRESS: ( 8o SOs1, C. t eclat Ex cc, lstor, ►te 55 33 1 I 4 - 4 '' 305 . C•so.N�.�� TELEPHONE (Day time) 5 3 (• 'e=41-9 64ta) TELEPHONE (Evening) : "11 4 - I - 110 6 `"') 1 Please provide all requested data consistent with what existed is the steer of 1981. 1 1. Number of homes in the Homeowners Association y 1 2. Length of shoreland (feet) U O � 1 3. Total area of Beachlot (in square feet) IO 5 0 o 1 4. Number of docks 0 6. Length of dock(s) eiC 1 7. Number of boats docked CA 8. Number of canoe racks I 9. Number of boats stored on canoe racks q I 10. Number of boats moored, i.e. canoes, paddle boats, sailboats. ? w o (a) 11. Number of boats on land 6 I 12. Swimming beach Yes X No Buoys Yes No x 13. Swimming Raft Yes No % v se.D s►wc.a I981.• llp9•Ab&P iv tetcc 14. Boat Launch Yes No X I 15. Motor vehicle access Yes No X Number of parking spaces 1 16. Structures, including y portable chemical toilets: Q O '.4Rb C�Q. .■+ t ∎.O., Tb.Ls.'"1 C.e ✓e►t. v5e. Pe. ff. ...1+ 1 3 t.11 t . 4 Pc p I. ' 9a. „0.,p t`e..,rt.wod.. iw 7u.vt t 12,. Po ,.. -ab Lt L1N......,. r.. AL. 40 i te-'b A..rD Suerev.►o ,. .35 1 b.,.t4 411 S +k ttel pa Pepe ev ILA. p►o.a M,.,.it.19',.. 1 1 Kate, Aug 15, 1992 Enclosed is our Homeowners Association Revised Application for our non- conforming recreational beachlot. Also included are: 1)Memo from myself to the Association requesting a vote on the boat mooring issue, 2)Results of the vote, and 3)A rough drawing of how the beachlot would be configured. We have requested two (2) mooring spots which will, of course, be predicated upon our two homeowners providing satisfactory documentation that they had their boats moored prior to the 1981 date. If you need anything else prior to a Planning Commission meeting or have any questions, feel free to contact me. Ken Hannemann 1 474 -1710 (home) 536 -4246 (work) 1 i 1 1 ' MINNEWASHTA CREEK HOMEOWNERS ' ASSOCIATION OF CHANHASSEN MINNESOTA ' MEMORANDUM ' TO: Association Members FROM: Ken Hannemann, Pres. ' RE: Non - Conforming Beachlot Issue ' DATE: July 29, 1992 On Tuesday evening, July 7, 1992, the Association met to discuss the issue of the mooring of ' boats in the waters adjacent to the Association's lakeshore. Nine families were represented at the meeting. During the course of that meeting, it became apparent that their was uncertainty as to who would have the right to moor boats there if, in fact, the Association were .to re- submit ,' and the City were to approve a new Application for a Conditional Use Permit which would include two mooring spots. The question then became whether the mooring rights would accrue to the Association or to the individual members of the Association whose continuous use of these ' waters for mooring since 1981 serves as the basis for the grandfathering of the mooring spots. The next day, on behalf of the Association, I contacted Ms. Kate Aanenson who is an Assistant ' Planner with the City to pose the question. She stated to me, unequivocally, that the Association would hold the mooring rights, and not the individual members, if the rights were granted by the City as part of the new Permit. Her reasoning was that it is the Association that owns the ' Outlot which is lakeshore property and, therefore, it is the Association that has the authority to apply for and to obtain the Permit and to exercise and to enforce any mooring rights granted. ' Therefore, if the Association intends to re -apply for a permit that includes two mooring spots, then, if granted, the Association will have to decide how the use of the mooring spots will be ' allotted between and amongst the members of the Association. The balloting of the Association represents the first phase of this process by posing the question ' to each homeowner: How many mooring spots should the Association request in the revised application? Please indicate on the attached ballot your preferred choice and return it to Nancy Nelson, our Association Secretary who resides at 3891 Linden Circle, no later than August 7. ' 1992. 7:00 p.m. If you do not return the ballot by the deadline date, it will be counted as a "no opinion" vote. The results will be tabulated and announced in a follow up memo, after which the results will be presented to the Planning Commission when we formally re -apply for our Non - Conforming Conditional Use Permit for the Beachlot. Please feel free to call me at 474 -1710 if you have any further questions regarding this issue. 1?P"'" • 1 MINNEWASHTA CREEK HOMEOWNERS ASSOCIATION I 1 DATE: AUGUST 17, 1992 TO: ALL ASSOCIATION MEMBERS 1 SUBJECT: RESULTS OF THE RECENT BALLOT REGARDING I MOORING OF BOATS NUMBER OF BALLOTS VOTING FOR TWO SPOTS 14 I NUMBER OF BALLOTS VOTING FOR ONE SPOT 1 1 NUMBER OF BALLOTS VOTING FOR ZERO SPOTS 7 1 NUMBER OF NO OPINION BALLOTS 19 TOTAL 41 1 GIVEN THE RESULTS ABOVE, THE ASSOCIATION WILL GO FORWARD AND RE- SUBMIT OUR NON - CONFORMING RECREATIONAL BEACHLOT APPLICATION REQUESTING TWO MOORING SPOTS. MEETINGS WITH THE PLANNING COMMISSION AND CITY COUNCIL WILL BE SCHEDULED IN THE I NEAR FUTURE TO EVALUATE OUR APPLICATION. I WILL NOTIFY ALL ASSOCIATION MEMBERS WHEN THESE MEETINGS ARE SCHEDULED. 1 KEN HANNEMANN I 1 1 1 1 1 1 I • i — NM MN E z — OM MI •1111111 1111111 ME MI - -= 111111 11111 0 A d 0 P N 7 N p 3 t to 0 41 ' C 0 £ 0 0 • 3 ° P 3 "13Pn o 3 L m r L ii a p • IT c r r ° a Z a 4 m v L 4 3 a o w 0 M m I D r a Z Nz 1 N as i • � £ i £ 0 O 0 a0 r • m p • • r t S C N r , • b P O i Q 9 C m m -1 el C' o m o b a N 0 r y c .. IP r a £ o '� i N � oIP a r p i t o P a N z m m • ° 9 Z �^ d M 70 s m " m x a -1 0 0 f d 0 0 rt o 0 in 0► 4 , N P i r p H in � p 3 v 3 ) 0 i. 0 4 d m in 0 i" . '0 -4 m m I" P a 0 m, 0 L - . z to p 0 0 o L ITS 6 m 0 -t O Z 1 1 RECREATIONAL BEACHLOT INVENTORY 1981 1986 1991 Minnewashta Creek 1 36 Homes Lake Minnewashta 1 10,500 Square Ft. 60' Width of Shoreline 1 Motor Vehicle Access no no no Off - Street Parking no no no 1 Boat Launch no no no Permanent Buildings none none none 1 Setbacks ' Temporary Buildings none none none 1 Portable Restroom no no no Picnic Tables 4 4 4 1 Grills /Campfires 2 2 2 Seasonal Docks none none none 1 Approximate Length Canoe Racks none none none 1 Boats on Land 4 none 2 Boats Moored none none 1 1 Boats Docked none none none Swimming Beach yes yes yes 1 Marker Bouys no no no Swimming Raft no no yes 1 Comments: well well maint. maint. 1 1 1 1 1 il MINNEWASHTA CREEK 1 TERRANCE THOMPSON SR. MAY 1992 3820 LINDEN CIRCLE EXCELSIOR, MN. 55331 1 *.42 1. WE PURCHASED LOT OA IN 1978. I 2. WE PURCHASED LOT #1 IN 1979. 1 3. WE BUILT AND MOVED INTO HOME IN 1980. 4. WE HAVE HAD OUR PONTOON IN THE LAKE SINCE WE MOVED IN. 1 5. A LIST OF FRIENDS AND NEIGHBORS WHO HAVE EITHER SEEN OR HELPED US PUT OUR BOAT IN LAKE MINNEWASHTA IN THE LAST 12 YEARS. 1 1 (NAME) (ADDRESS) I ,<)20 Yrvet-eLl' ,?,.(o ee„,,,,,e) li ■. ` ` ` ,, _ ki,---t----- :3 1 3o A i- „.�.v--., ' 1 1,1.4._c_.-0-- 1 t , 9 ' 3 7� o 4 1. '1 cl se., Cr j ,- r 1 -(_ I f;c- -1510. /"11) 3 33i 1 ,rc\c\ s ,, 1 r 6.8,9„ 0.1 7 . Y�rnk g � 1 I Ccl 1 4 (214'R4 C. g_cls r Plot”— , . . __,,,,,A,,,, ii-Ldu 1 1 1 ..A- 1 CITY OF CHANHASSEN 1 CONDITIONAL USE PERMIT BEACH LOT - MINNEWASHTA CREEK ADDITION This permit and agreement, made and entered into this Ja. day of ` .41,14. 1 , 1979, by and between Romarco Development, Inc., and Minnewashta Creek Homeowners'Association of Chanhassen, Minnesota (hereinafter referred to collectively as the Applicant), and the City of Chanhassen, a Minnesota municipal corporation (hereinafter referred to as the City); WITNESSETH: That the City, in exercise of its powers pur- suant to M.S. §462.357, and other applicable state law, and S7.04 of the Chanhassen Zoning Ordinance, hereby grants to the Applicant herein a conditional use permit to maintain and operate a private neighborhood association recreational area upon Outlot B, Minnewashta Creek First Addition, Carver County, Minnesota (hereinafter the Subject Property), subject to the following terms and conditions, all of which shall be strictly complied with as being necessary for the protection of the public interest: , Section 1. Recitals. 1.01 Prior Platting of Minnewashta Creek Second Addition. Romarco Development, Inc., as contract for deed vendees, acting in concert with one Donald B. Berkey and one Jane L. Berkey, as contract for deed ven- dors, have platted a tract of land in the City as Minnewashta Creek Second Addition (hereinafter Second Addition), consisting of thirty -six (36) residential lots. 1.02 Outlot B. Romarco Development, Inc., (hereinafter Romarco), has purchased Outlot B, Minnewashta Creek First Addition, from said Donald B. Berkey and said Jane L. Berkey under a contract for deed. 1.03 Homeowners' Association. Romarco has incorporated the Minnewashta Creek Homeowners' Association of Chanhassen, Minnesota (hereinafter the Association) for the purpose of acquiring and main- taining certain common properties for the benefit of the owners of lots in the Second Addition. Romarco has, by various contracts with purchasers of lots in the Second Addition, become legally obligated to acquire the fee title to Outlot B, Minnewashta Creek First Addition and to convey the same to the Association as a common property. -1- 1 1 • II 1 1.04. Development Chronology. A. The City Planning Commission held a public hearing on July 25, 1979 to consider the issuance of the within conditional use per- mit and to consider the approval of the Applicant's grading and landscaping plan for the subject property. ' B. The City Council, by its resolution of August 6, 1979, approved the issuance of the within conditional use permit and approved the Applicant's grading and landscaping plan. • Section 2. Special Conditions. 2.01. Permit Not Transferable. This permit is personal to the Applicant and to the Association, and is not assignable or transferable except upon the written consent of the City. ' 2.02. Release of Romarco. The City, upon written request, shall release Romarco from its obligations hereunder upon receipt of documen- tation which demostrates (a) the proper incorporation of the Association pursuant to Chapter 317 of Minnesota Statutes, and (b) the conveyance ' of title to the Subject Property in fee simple to the Association for the benefit of all owners of lots in Minnewashta Creek Second Addition. No such release shall be given until such documentation has been approved by the City Attorney as to legal sufficiency. No such release as to Romarco shall have the effect of releasing the Associa- tion from its obligations, covenants, and agreements hereunder. 2.03. Rights Under This Permit Not Expandable to Other Owners. This permit is issued for the benefit of the owners of the thirty -six lots in Minnewashta Creek Second Addition. The Applicant agrees that ' the use and enjoyment of the Subject Property shall be limited to the owners of lots in Minnewashta Creek Second Addition. The use and enjoyment of the Subject Property may not extend to persons other than ' such owners. The term "owners" as utilized in this §2.03 shall mean and refer to any natural person who is either (a) the record owner of a fee simple interest, or (b) the record owner of a contract for deed •vendee's interest, or (c) the holder of any possessory leasehold ' interest, in the whole of any lot or double lot in the Second Addition, including authorized guests and family members of any such persons. ' 2.04. Description of Propert Subject to This Permit. The premises subject to the within conditional use permit are described as follows: Outlot B, Minnewashta Creek First Addition, according to the map or plat thereof on file and of record in the Office of the County Recorder, in and for Carver County, Minnesota. 1 -2- II 1 2.05 Certain Site Alterations Authorized. The Applicant is hereby authorized to execute its grading plan and landscape plan II prepared by Clark Engineering Co. under certification of June 14, 1979 (hereinafter the Applicant's Plan). Except as provided in said grading plan and landscaping plan, no portion of the Subject Property I may be developed, altered, or disturbed in any way. . All work performed in execution of the Applicant's Plan shall be subject to the inspection and approval of the City Engineers. In I case any work shall be rejected by the City as unsuitable or defective, - then such rejected work shall be done anew to the satisfaction and approval of the City at the cost and expense of the Applicant. 1 2.06. Schedule of Work. The Applicant agrees that it shall have all work done and the improvements described in S2.05 above fully complet to the satisfaction and approval of the City on or before , �� , 19 ?'p . The Applicant shall submit a written schedul n_ cating the proposed progress schedule and order of com- pletion of work covered by this contract which schedule shall be a I part of this contract. Upon receipt of written notice from the Appli- cant of the existence of causes over which the Applicant has no control which will delay the completion of the work, the City, in its discre- II tion, may extend the date hereinbefore specified for completion. 2.07. Erosion Control. Applicant, at its expense, shall provide I temporary dams, earthwork or such other devices and practices, including seeding of graded areas, as shall be needed, in the judgment of the City Engineers, to prevent the washing, flooding, sedimentation and erosion of lands and roads within and outside the Subject Premises ' during all phases of construction. Applicant shall keep all public streets free of all dirt and debris resulting. from construction by the - Applicant, its agents or assignees upon the Subject Property. 1 2.08. Certain Structures Prohibited. Except for the fence and sign described in the Applicant's Plan, no structure may be constructed, erected, or maintained upon the Subject.Property. No docks, piers, , • boat racks, or canoe racks shall be constructed, erected, or maintained on the Subject Property or in the waters abutting the Subject Property. 2.09. Camping Prohibited. No owner, as defined hereinabove, or , other person shall camp overnight on the Subject Property. 2.10. Motor Vehicle Parking and Boat Storage. No watercraft shall 1 be parked or stored overnight or on a permanent basis on the Subject Property. Except for construction equipment necessary for the execu- tion of the Applicant's Plan and as necessary for the maintenance of the Subject Property, no motor vehicle shall be driven upon or parked upon the Subject Property. No boat trailer shall be allowed upon the Subject Property. Nothing in the preceeding three sentences shall be deemed to II prohibit the launching of any watercraft from the Subject Property if accomplished without the assistance of any motor vehicle or trailer or wheeled dolly upon the Subject Property. 1 -3- • 1 • Section 3. Municipal Disclaimers. II 3.01. No Liability to Suppliers of Labor or Material. It is - understood and agreed that the City, the City Council, and the agents and employees of the City shall not be personally liable or responsible in any manner to the Applicant, the Applicant's con- tractors or subcontractors, materialmen, laborers, or to any other ' person, firm or corporation whomsoever, for any debt, claim, demand, damages, actions or causes of action of any kind or character arising out of or by reason of the execution of this permit and agreement or the performance and completion of the work and improvements hereunder; II and that the Applicant will save the City, the City Council, and the agents and employees of the City harmless from any and all claims, damages, demands, actions or causes of action arising therefrom and ' the costs, disbursements, and expenses of defending the same. 3.02. Written Work Orders. The Applicant shall do no work nor furnish materials, whether covered or not covered by the Applicant's Plan, for which reimbursement is expected from the City unless a written order for such work or materials is received from the City. Any such work or materials which may be done or furnished by the Applicant ' without such written order first being given shall be at its own risk, cost and expense, and Applicant hereby agrees that without such written order, Applicant will make no claim for compensation for work or materials so done or furnished. Section 4. Miscellaneous. ' 4.01. Severability. In the event any provisions of this permit shall be held invalid, illegal, or unenforceable by any court of com- petent jurisdiction, such holding shall not invalidate or render unen- forceable any other provision hereof, and the remaining provisions shall not in any way be affected or impaired thereby. 1 4.02. Execution of Counterparts. This permit may be simultaneously executed in several counterparts, each of which shall be an original, and all of which shall constitute but one and the same instrument. ' 4.03. Headings. Headings at the beginning of sections and para- graphs hereof are for convenience of reference, and shall not be con- sidered a part of the text of this contract, and shall not influence ' its construction. 4.04. Proof of Title. Upon request, the Applicant shall furnish the City with evidence satisfactory to the City that it has acquired fee title to the Subject Property. -4- .1 1 • 4.05. Notices. All notices, certificates and other communications II hereunder shall be sufficiently given and shall be deemed given when mailed by certified mail, return receipt requested, postage prepaid, with proper address as indicated below. The City and the Applicant, by written notice given by one to the other, may designate any address II or addresses to which notices, certificates or other communications to them shall be sent when required as contemplated by this permit. Unless otherwise provided by the respective parties, all notices, II certificates, and communications to each of them shall be addressed as follows: To the City: City of Chanhassen , City Hall 7610 Laredo Drive Chanhassen, MN 55317 Attn: City Manager To Romarco: Romarco Development, Inc. 3295 Hillsboro Avenue South Minneapolis, MN 55426 To the Association: Mirinewashta Creek Homeowners' Association" c/o Romarco Development, Inc. • 3295 Hillsboro Avenue South Minneapolis, MN 55426 ' 4.06. Owners to be Notified of This Permit. The Association shall furnish each owner, as that term is defined in §2.03 above, with a copy of this permit within thirty (30) days of any such owner's initial occupancy of any residential structure in the Second Addition. 4.07. Term of This Permit. This permit shall expire on August 6, 1 2009. Section 5. Enforcement Provisions. ' 5.01. Reimbursement of Costs. The Applicant shall reimburse the City for all costs, including reasonable engineering, legal, plannini and administrative expenses incurred by the City in connection with all II matters relating to the administration and enforcement of the within permit and the performance thereby by the Applicant. Such reimbursement shall be made within fourteen (14) days of the date of mailing of the ' City's notice of costs as provided in S4.05 above. The Applicant's reimbursement obligation under this section shall be a continuing obliga- tion throughout the term of this permit. ' - -5- 1 i I , -t 5.02. Performance Bond. For the purpose of assuring and guaran- teeing to the City that the improvements to be by the Applicant con- , structed, installed and furnished as set forth in S2.05 hereof shall be constructed, installed and furnished according to the terms of this agreement, and that the Applicant shall pay all claims for work done and materials and supplies furnished for the performance of II this permit, a._d that the Applicant shall fully comply with all of the other terms and provisions of this permit, Applicant agrees to furnish to. the City either a cash deposit, a corporate surety bond approved by the City and naming the City as obligee thereunder, or an II irrevocable letter of credit approved by the City in the amount of $ qon . 1 5.03. Remedies Upon Default. A. Assessments. In the event the Applicant shall default in I the performance of any of the covenants and agreements herein con- tained, and such default shall not have been cured within ten (10) days after receipt by the Applicant of written notice thereof, the II City, if it so elects, may cause any of the improvements described in the Applicant's Plan to be constructed and installed or may take action to cure such default and may cause the entire cost thereof, including all reasonable engineering, legal and administrative ex- II pense incurred by the City, to be recovered as a special assessment under M.S. Chapter 429, in which case the Applicant agrees to pay the entire amount of the assessment roll pertaining to any such im- II provement within thirty (30) days after its adoption. Applicant further agrees that in the event of its failure to pay in full any such special assessment within the time prescribed herein, the City II shall have a specific lien on all of Applicant's real property within the Subject Property for any amount so unpaid, and the City shall have the right to foreclose said lien in the manner prescribed for the foreclosure of mechanic's liens under the laws of the State of I Minnesota. In the event of an emergency, as determined by the City Engineers, the notice requirements to the Applicant shall be and hereby are waived in their entirety, and the Applicant shall reimburse I the City for any expense incurred by the City in remedying the condi- tions creating the emergency. II B. Performance Bond. In addition to the foregoing, the City may also institute legal action against the Applicant and the corporate surety on its performance bond, or utilize any cash deposit made or letter of credit delivered hereunder, to collect, pay, or reimburse I the City for the cost of making any of said improvements,' or for the cost, including reasonable engineering, legal and administrative expense incurred by the City, of curing any default by the Applicant 1 in its performance of any of the covenants and agreements contained herein. II -6- II II • 1 1 C. Legal Proceedings. In addition to the foregoing, the City may institute any proper action or proceeding at law or at equity to 1 prevent violations of the within permit, to restrain or abate viola- tions of the within permit, or to prevent use or occupancy of the Subject Proper '-y. 1 IN WITNESS WHEREOF, the parties hereto have caused these II presents to be executed on this /a,1 day of ,., , 1979. ROMAR • DEVELOPMEkT, INC. MINNEWASHTA CREEK HOMEOWNERS' 1 4f/Alk ASS ION OF w,yi EN, MINNESOTA . . BY 11 at/`ui� VIZ O' ��1 E►� BY 0 J2100 fIPM t • Its �� - 1 And And 1 Its Its CITVI HANHAS N 1 1� By `1 .. .� �� Its Mayor 1 ATTEST: /0 C Manager II STATE OF MINNESOTA ) 1 ss. COUNTY OF ) 1 On this / day of - , 1979, before me, a notary public within and for said county, personally appeared 4* and , to me personally known, who, being each by me 1 duly sworn did say that they are respectively the -� ,, and the of Romarco Development, Inc., and that said instrument was signed in beha AZ ' sa corporation by authority of its II Board of Directors, and said S ,t and acknowledged said instrument to be the free act and deed of said corporation. 1 C ,........o..,....~....•. , . �� ! ..2. 4_, P_�GL ,„ i..: KAREN J. ENL LHARDT i f ,Notary Public +, � ii NOTARY PJSLIC - MINNESOTA 1 r ,, CARVER COUNTY .,:. My Commission E:.piies Oct. 11,1986 s... 1 -7- 1 I • • • . - il STATE OF MINNESOTA ) ss. COUNTY OF ) I On this f4 day of �,�, , 1979, befo a me, a notary public within and for said county, personally appeared and , to me personally known, wh , being each by II me duly sworn, did say that they are respectively the -__„ and the of Minnewashta Creek Homeowners' Associa- tion of Chanhassen, Minnesota, and that said instrument was signed in behalf o s a corporation by authority of its Board of Directors, and 1 said and acknowledged said instrument to be the free act and deed of said corporation. AIM otary Public I .r' r KA - J. ENGELH 11 : NOTARY PUBLIC - MINNE CARVER STATE OF MINNESOTA ) CO UNTY ) s s . My Commission E:.p,res Oct. 1/, 19/5 :1 COUNTY OF CARVER ) ,.. On this , . day of , 1979, before me, a notary public within and Eor said county, personally appeared Walter Hobbs I and Donald W. Ashworth, to me personally known, who, being each by me duly sworn, did say that they are respectively the Mayor and City ill Manager of the corporation named in the foregoing instrument, and that II said instrument was signed and sealed in behalf of said corporation by authority of its City Council, and said Walter Hobbs and Donald W. Ashworth acknowledged said instrument to be the free act and deed of I said corporation. r —* /. i _�— _r 1 if Notary Public ,;� ;,;: ; •.. I ti AREN J. E;:! HAR Vi II -8- 1 1 1 • • 1 ( r CITY OF CHANHASSEN CARVER AND HENNEPIN COUNTIES, MINNESOTA CONDITIONAL USE PERMIT 1 1. Permit. Subject to the terms and conditions set forth herein, the City of Chanhassen hereby grants a conditional use permit for the following use: 1 A portable chemical toilet on existing recreational beachlot. 2. Property. The permit is for property situated in the City 1 of Chanhassen, Carver County, Minnesota, and legally described as follows: (RNK) 1st. Outlot B, Mi rnewashta Creek Creekffmn4 Addition 3. Conditions. The permit is issued subject to the following 1 conditions: 1. The applicant applies for a license from the city on an annual basis prior to installation of the portable chemical toilet. 2. The portable chemical toilet shall only be permitted from Memorial Day to Labor Day and shall be removed from the beachlot during the rest of the year. 3. The beachlot shall be maintained in good condition in a manner consistent with previous approvals and current ordinance requirements. 4. The portable chemical toilet shall be located in accordance 1 with the application /plans received by the City on May 20, 1991. 4. Termination of Permit. The City may revoke the permit following a public hearing for violation of the terms of this permit. 1 • 5. Lapse. If within one year of the issuance of this permit the authorized construction has not been substantially completed or the use commenced, this permit shall lapse, unless an extension is granted in accordance with the Chanhassen Zoning Ordinance. 6. Criminal Penalty. Violation of the terms of this conditional use permit is a criminal misdemeanor. Dated: July 8, 1991 • 1 1 • CITY OF CHANHASSEN II /. By: Donald J. • miel, Mayor II By: Oi St € 1 Don Ashworth, City Manager STATE OF MINNESOTA) I ( SS COUNTY OF CARVER ) II day of The foregoing instrument was acknowledged before me this l7 , 19, by Donald J. Chmiel, Mayor and Don Ashworth, ity Manager, of the City of Chanhassen, a Minnesota municipal corporation, on behalf of the corporation and pursuant to II authority granted by its City Council. 1 Notary Iralicd III , DRAFTED BY: - Campbell, Knutson, Scott & Fuchs, P.A. 3460 Washington Drive, Suite 202 , . ` Eagan, Minnesota 55122 KAREN ENCE N "r� NOTARY PU ?LIS - �' (612) 456 ` -= cAnyc M commission a 1: - 13-9.1 1 R NK ' - y 1 I OFFICE OF COUNTY RECORDER STATE OF MINNESOTA COUNTY RVER I Filing Fee This is to certify hat this do ent w )1- • in t • office the day 1&A.D.at 7 o'clock I �> . and was duly recorded as do u ent no.. 1 :P O . • i . - s __.„,; -,J` . HANSON JR. 1 by: 4 Aiggiiiii0W M _ :/G....._ G— il s, .-' C$ NOTICE OF PUBLIC HEARING - it ` PLANNING COMMISSION MEETING ®� a� ilk, s Wedne September 16, 1992 - 7:30 1 F le „ �11 _ -- — P.M. ,: ,' : • '- /---- City Hall Council Chambers , , . . . , / 1 690 Coulter Drive V.,; _ �� PI r�Q!?��r" Mr C ee �� , Project: Non-Conforming Recreational } Beachlot �."�� �- QLi1% ram. a &SIR: 1 Applicant: Minnewashta Creek LAKE Homeowners Association �--s I Location: Northwest Side of Lake :� - :�/s_ , _ M / N N E W A . o Minnewashta 3 :.J..E «• Wir , . . . _ 1 _ _ _ r R 6 _ _ _ _ _ _ 1 Notice: You are invited to attend a public hearing about a development proposed in your area. Minnewashta Creek Homeowners Association for a non - conforming use permit for their recreational beachlot. What Happens at the Meeting: The purpose of this public hearing is to inform 1 you about the developer's request and to obtain input from the neighborhood about this project. During the meeting, the Planning Commission Chair will lead the public hearing through the following steps: 1 1. Staff will give an over view of the proposed project. 2. The Developer will present plans on the project. 1 3. Comments are received from the public. 4. Public hearing is closed and the Commission discusses project. The Commission will then make a recommendation to the City Council. 1 Questions or Comments: If you want to see the plans before the meeting, please 1 stop by City Hall during office hours, 8:00 a.m. to 4:30 p.m., Monday through Friday. If you wish to talk to someone about this project, please contact Kate at 937 -1900. If you choose to submit written comments, it is helpful to have one copy to the Planning Department in 1 advance of the meeting. Staff will provide copies to the Commission. Notice of this public hearing has been published in the Chanhassen Villager on September 3, I 1992. ,_,'t'(1 1 1 I ESTATE OF AHRENS MINNEWASHTA HOA HERBERT PFEFF R RT 1 BOX 284 C/O LOIS GOEDE 2850 TANAGERS I BROWERVILLE MN 56438 2851 TANAGERS EXCELSIOR MN 55331 EXCELSIOR MN 55331 1 PER & E JACOBSON GENE FURY STEPHEN ORTLIP 2840 TANAGERS 2821 WASHTA BAY ROAD 14880 30TH ST SW I EXCELSIOR MN 55331 EXCELSIOR MN 55331 WATERTOWN MN 55388 I HARRY NIEMELA DONALD ANDERSON WAYNE HOLZER 2841 WASHTA BAY ROAD 2851 WASHTA BAY ROAD 2911 WASHTA BAY ROAD • EXCELSIOR MN 55331 EXCELSIOR MN 55331 EXCELSIOR MN 55331 NORMAN CASPERSON ALLAN TOLLEFSON GLENN COPPERSMITH I 2921 WASHTA BAY ROAD 2931 WASHTA BAY ROAD 2941 WASHTA BAY ROAD EXCELSIOR MN 55331 EXCELSIOR MN 55331 EXCELSIOR MN 55331 1 JOSEPH BOYER CURRENT RESIDENT SUSAN FIEDLER I 3630 VIRGINIA AVE 3111 DARTMOUTH DR 3121 DARTMOUTH DR • WAYZATA MN 55391 EXCELSIOR MN 55331 EXCELSIOR MN 55331 I THOMAS MERZ JAMES GINTHER STEPHEN MARTIN 3201 DARTMOUTH DR 3131 DARTMOUTH DR 3211 DARTMOUTH DR ' EXCELSIOR MN 55331 EXCELSIOR MN 55331 EXCELSIOR MN 55331 I RAYMOND ROETTGER M MOORE/K HALL WARREN HANSON 3221 DARTMOUTH DR 3231 DARTMOUTH DR 3241 DARTMOUTH DR 1 EXCELSIOR MN 55331 EXCELSIOR MN 55331 EXCELSIOR MN. 55331 I CURRENT RESIDENT WILLIAM NAEGELE CURRENT RESIDENT II 6341 CYPRESS DR 4300 BAKER ROAD 3311 SHORE DRIVE EXCELSIOR MN 55331 MINNETONKA MN 55343 EXCELSIOR MN 55331 BARBARA WINTHEISER FLORENCE BISCHOFF WILLIAM MCDANIEL ' 3321 SHORE DRIVE 3331 SHORE DRIVE 3341 SHORE DRIVE EXCELSIOR MN 55331 EXCELSIOR MN 55331 EXCELSIOR MN 55331 1 F DENTON WHITE HENRY ARNESON KARL VANLANGEN I 3351 SHORE DRIVE 3401 SHORE DRIVE - 3411 SHORE DRIVE • EXCELSIOR MN 55331 EXCELSIOR MN 55331 EXCELSIOR MN 55331 1 M POSTHUMUS & E TUSSEY JOHN MCKELLIP CURRENT RESIDENT 3421 SHORE DRIVE 3431 SHORE DIVE 3441 SHORE DRIVE EXCELSIOR MN 55331 EXCELSIOR MN 55331 EXCELSIOR MN 55331 MORRIS MULLIN RED CEDAR COVE INC WENDELL SCHOTT I 3451 SHORE DRIVE C/O D C PRILLMAN 7034 RED CEDAR COVE EXCELSIOR MN 55331 7064 RED CEDAR COVE EXCELSIOR MN 55331 1 EXCELSIOR MN 55331 AURETHA SMITH CURRENT RESIDENT RALPH KARCZEWSKI 1 7044 RED CEDAR COVE 7048 RED CEDAR COVE 7054 RED CEDAR COVE EXCELSIOR MN 55331 EXCELSIOR MN 55331 EXCELSIOR MN 55331 1 WARREN RIETZ DAVID PRILLAMAN CURRENT RESIDENT I 7058 RED CEDAR COVE 7064 RED CEDAR COVE 7068 RED CEDAR COVE EXCELSIOR MN 55331 EXCELSIOR MN 55331 EXCELSIOR MN 55331 1 CURRENT RESIDENT CURRENT RESIDENT STEVEN EMMINGS 7074 RED CEDAR COVE 7078 RED CEDAR COVE 6350 GREENBRIAR 1 EXCELSIOR MN 55331 EXCELSIOR MN 55331 EXCELSIOR MN 55331 1 RICHARD HANSON ROBERT HEBEISEN RICHARD ZWEIG 6400 GREENBRIAR 3607 IRONWOOD ROAD 3601 IRONWOOD ROAD I EXCELSIOR MN 55331 EXCELSIOR MN 55331 EXCELSIOR MN 55331 CURRENT RESIDENT FRANCIS FABER RICHARD WING 1 6331 CYPRESS DRIVE 3471 SHORE DRIVE 3481 SHORE DRIVE EXCELSIOR MN 55331 EXCELSIOR MN 55331 EXCELSIOR MN 55331 1 WILLIAM TURNER DAVE HOELKE THOMAS WRIGHT 1 3501 SHORE DRIVE 3621 IRONWOOD ROAD 3611 IRONWOOD ROAD EXCELSIOR MN 55331 EXCELSIOR MN 55331 EXCELSIOR MN 55331 MICHAEL MORGAN L 0 PARSONS CURRENT RESIDENT I 3734 HICKORY 3732 HICKORY 3724 HICKORY EXCELSIOR MN 55331 EXCELSIOR MN 55331 EXCELSIOR MN 55331 1 MARVIN YORK ALFRED SMITH GREGORY BORER 3716 HICKORY 3714 HICKORY - 3706 HICKORY 1 EXCELSIOR MN 55331 EXCELSIOR MN 55331 EXCELSIOR MN 55331 1 GARY PETERSON JAMES MOORE SAMUEL POTTS i 1769 20TH AVE NW 3630 HICKORY 3628 HICKORY NEW BRIGHTON MN 55112 EXCELSIOR MN 55331 EXCELSIOR MN 55331 1 ERIC BAUER STEVEN KEUSEMAN KATHLEEN LOCKHART 3624 RED CEDAR POINT 3622 RED CEDAR POINT 8549 IRWIN ROAD I EXCELSIOR MN 55331 EXCELSIOR MN 55331 MINNEAPOLIS MN 55437 EDWIN SEIM RICHARD SCHLENER THADDEUS SCHWABA 292 CHARLES DRIVE 200 COMMERCE CIR S 3603 RED CEDAR POINT SAN LUIS OBISPO CA MINNEAPOLIS MN 55432 EXCELSIOR MN 55331 O 93401 J D KNIGHT WYNN BINGER PAUL LARSON • 485 PILLSBURY BLDG 2950 DEAN PKWY #1503 3609 RED CEDAR POINT 608 2ND AVE S MINNEAPOLIS MN 55416 EXCELSIOR MN 55331 1 MINNEAPOLIS MN 55402 LUMIR PROSHEK EMIL SOUBA BIRATA DUNDURS 1 3613 RED CEDAR PT 14025 VALE COURT 3627 RED CEDAR POINT EXCELSIOR MN 55331 EDEN PRAIRIE MN 55344 EXCELSIOR MN 55331 I LINDA JOHNSON CHARLES ANDING HELEN ANDING 3629 RED CEDAR POINT 3631 SOUTH CEDAR 1708 E 57TH STREET 1 EXCELSIOR MN 55331 EXCELSIOR MN 55331 MINNEAPOLIS MN 55417 I CHESTER LOBITZ LARRY VANDERLINDE ANDREW JENSEN 3637 SOUTH CEDAR 211 CHESTNUT BOX 277 1 EXCELSIOR MN 55331 CHASKA MN 55318 EXCELSIOR MN 55331 I DAVID HEMPLE FRANK BOYCE CLIFFORD PEDERSEN 3707 SOUTH CEDAR 3711 SOUTH CEDAR 3713 SOUTH CEDAR EXCELSIOR MN 55331 EXCELSIOR MN 55331 EXCELSIOR MN 55331 RICHARD ANDING BASIL BASTAIN CURRENT RESIDENT • 3715 SOUTH CEDAR 3719 SOUTH CEDAR 3725 SOUTH CEDAR EXCELSIOR MN 55331 EXCELSIOR MN 55331 EXCELSIOR MN 55331 1 KENNETH SMITH ROBERT C OSBORNE WALTER SCHWATZ ' 3837 RED CEDAR POINT 3815 RED CEDAR POINT 3888 FOREST RIDGE CIR EXCELSIOR MN 55331 EXCELSIOR MN 55331 CHAKSA MN 55318 1 1 JEROME AHLMAN JOEL ANDERSON JOHN PETERJOHN 3896 LONE CEDAR 3894 LONE CEDAR 3892 LONE CEDAR CHAKSA MN 55318 CHASKA MN 55318 CHASKA MN 55318 CURRENT RESIDENT TERRANCE JOHNSON EDWARD OATHOUT 1 3890 LONE CEDAR 3898 LONE CEDAR 3940 HAWTHORNE CIR CHASKA MN 55318 CHASKA MN 55318 EXCELSIOR MN 55331 1 GEOFFREY SCHIEFELBEIN STATE/MINNESOTA IN TRUST JOHN MERZ/DAVID TESTER 1 3920 HAWTHORNE CIR C/O CARVER CO AUDITOR 3897 LONE CEDAR EXCELSIOR MN 55331 600 EAST 4TH STREET CHASKA MN 55318 CHASKA MN 55318 1 1 1 1 1 1 1 1 1 1 1 I Planning Commission Meeting September 16, 1992 - Page 2 11 Aanenson: No, there wasn't a letter. The only other evidence was provided at the May 6th meeting where Mr., I'm not sure how you pronounce his name, got up and spoke and stated to the fact that he had a boat in 11 the water prior to that. The same amount of time so it's basically documentation in the Minutes. Ledvina: Okay. Other than that I really don't have any other questions. I think that they're going ahead and they're making provisions to improve the safety of the beachlot by adding the buoys which I think is a real ' good thing. Other than that, if those two boats were docked in 1981, I should say moored, that would seem,, the request to continue that would seem reasonable. Other than that I don't have any other items. The chemical toilet, is that something that's. Aanenson: They do have a conditional use for that and it's separate. ' Ledvina: And that's A -okay. So that's it for me. Batzli: So we're approving this. We're not actually approving the portable chemical toilet other than in conformance with whatever ' conditions were placed on that from our other conditional use permit process? Aanenson: They do have a separate conditional use. Batzli: So if we make a motion to approve this, or recommend approval, ' should that be somehow reflected that the use of the portable chemical toilet is governed by a separate conditional use. Aanenson: That might be good. Batzli: Steve. ' Emmings: I read my comments from our last meeting and I took a position at that time that I didn't think they should have any boats at this one and I'm going to turn myself around 180 degrees on that. They've moved these boats in front of this property this summer and I've kept my eye on it and it seems to be working over there. And if that's what they want, I think it's primarily a policing function of the Association there and so I guess I'd vote for In favor of approving this. The only question I've got is, just as an example Kate. I thought we weren't going to get into picnic tables and grills and all that kind of stuff. ' Aanenson: We're not. Emmings: But on the request, they haven't requested any. I know they have some. They had them in '91. They had them in '81, just for picnic tables for example. But we're not in any way eliminating their right to. Aanenson: No. When we issue their permit we'll take that off as part of it. As long as we're on that, can I make one other clarification? Where it says swimming beach, it says no but they are requesting that. So really the only things you're making an interpretation on is the number of boats to be moored, because they're not asking for a dock. And then Planning Commission Meeting 1 September 16, 1992 - Page 3 by ordinance they can have a swimming beach so really all we're looking 1 at is the number of boats and they're not asking for anything on land either. i Emmings: Okay. Batzli: Jeff. 1 Farmakes: On these enumerable requests, I'm just sticking with the '81 census, if there is one and I'm going to stay with that. I think that's 1 what we should do to be consistent. If the City Council and staff want to make an exception on the issue that they didn't have any boats on the site in '81 moored, that there were no moorings out on the lake and now II it would seem to me two was an expansion. And if you want to make an exception on that and you have some justification for that. I don't see any here but in a reasonable compromise or whatever you want to do that or in the interest of doing that, I'll leave that up to staff. The issuil of the raft and the marker buoys. If you're going to have a raft, I wholly support the marker buoys but again, if that is an expansion, the raft and the buoys. According to the census, there were no buoys or a II raft at that time. So again, that's an expansion of the use in '81. An again, if the issue is one of compromise, I don't feel a burning desire to hold that up if that's the situation that the city's worked out. Batzli: Okay. My perspective on this I guess is, they've provided some evidence that they did have some boats moored. I'm willing to accept that. I think that the reduction in the number of boats on land from 4 II to 0, 2 boats moored and a swimming raft, I don't think is, when they demonstrated that they had the 2, I actually think there's been a reduction in the use of the beachlot here and swimming raft I think is all reasonable thing to approve so I'd vote in favor for the swimming raft and 2 boats being moored. Does anybody else have any other comments? Otherwise, I'll ask for a motion. Emmings: I'll move that the Planning Commission recommend approval of II the Minnewashta Creek Non - Conforming Recreational Beachlot with 2 boats moored, with the swimming raft and the marker buoys and also with the II understanding that the chemical toilet is governed under a separate conditional use permit. Batzli: Is there a second? 1 Ledvina: Second. Emmings moved, Ledvina seconded that the Planning Commission recommend II approval of the Minnewashta Creek Non - Conforming Recreational Beachlot with 2 boats moored, with the swimming raft and the marker buoys and als11 with the understanding that the chemical toilet is governed under a separate conditional use permit. All voted in favor and the motion carried. 1 1 1 Planning Commission Meeting May 6, 1992 - Page 2 1 Batzli: So if for example there's a dispute as to whether there was 2 or 4 11 boats, just by way of example, and you decided to go to 4 boats, would you need additional buffering as a condition? Conrad: Something like that. Aanenson: It sounds like a question for the attorney. I'm not sure. We're looking at grandfathering. If we're moving outside of that arena to ' go into looking at a separate conditional use, because we're trying to create a non - conforming permit. I'm not really sure on that. I guess we would make a recommendation to the City Council and we can make that ' determination at that point. Batzli: Okay. Having said that, we'll move along to the first public hearing. ' PUBLIC HEARING: NON - CONFORMING USE PERMIT FOR A RECREATIONAL BEACHLOT FOR MINNEWASHTA CREEK HOMEOWNERS ASSOCIATION. Public Present: Name Address Mary Jo Moore 3231 Dartmouth Drive Dana Johnson Minnewashta Parkway Ken Hannemann 6580 Joshua Circle Billie Windschitl Minnewashta Creek Association Terry Thompson Minnewashta Creek Association Aanenson: I'd just like to make a couple points of clarification on this. There was some misunderstanding between the Homeowners Association and the staff. There is a pontoon boat being moored on the site. We kept asking who it belongs to because the adjoining property owner, Mr. Johnson is concerned because it appears that it's really on his property. We kept asking the association, is it their boat? No, it's not their boat. Well they were misunderstanding what they were saying. Yes, it belongs to someone in the association but it's not the association's boat. So there is a pontoon boat out there. Farmakes: Did that person live? ' • Aanenson: In the association, yes. Farmakes: They belong to the association but do they live there? Aanenson: Yes. Yes he does. So the application that you have before you shows no. They're requesting no boats because they felt like that's what they had in 1981. But the gentleman here that has the boat is requesting that he be able to maintain that boat. Batzli: You're getting ahead of me a little bit. Let's back up. The way we will conduct the hearings is I will first ask for a staff report. If there are any issues that need further explanation and then I will request 1 1 Planning Commission Meeting May 6, 1992 - Page 3 1 that the Association representative address us if they so desire at that 11 time. We'd like to hear your suggestions or comments regarding why you believe, if for example you're asking for something that's in addition to what we think was in our 1981 baseline. We'd like you to be able to present those things and be fairly heard but I would ask that you be brief II and try to limit your comments to 5 minutes if at all possible and then if there's someone else that feels they have something in addition to and not just state what we've just heard, I'd be happy to hear them as well. If II that sounds reasonable. So Kate, if you want to go ahead now. Aanenson: Okay. I'm sorry about that. Okay just so there is a boat on there that they are asking for. I didn't show that in the report, and they hadn't requested it either. They did come back last summer, excuse me in 1991 to ask for a conditional use for a portable toilet. They do want to maintain that conditional use status. They are asking for the swimming raft which they didn't have in place in 1981 either. If you look at the II sheet where we've shown the permit kind of crossing what we're showing that we recommending. We've shown what they are requesting and then we've left I kind of blanks for the issues that you really need to determine. Those being the number of picnic tables, the campfire grills, the swimming beach and the swimming raft. Again, just for some clarification. Batzli: Under the ordinance, what are the numbers that would be allowed for picnic tables, grills, campfires? Aanenson: We don't have a problem with 4. There's no restriction on that." I just want to make one point too. I'm not sure if it's clear on the cover that their covenants, which I have included in here stated, which they cam back to the City in 1979, stated that there would be no structures erected or maintained upon the property. No docks, piers, boat racks, or canoe racks will be constructed or erected or maintained upon the beachiot. That was part of their original covenants. 1 Batzli: Would the Association representative like to address us at this time? 1 Ken Hannemann: Sure. Batzli: If you could give us your name please. • 1 Ken Hannemann: My name is Ken Hannemann and I'm the co- president of the Association. I live at 6580 Joshua Circle. Basically what I've done, I filled out the request form and basically what we've asked for is the raft and the portable chemical toilet that we received a conditional use permit last year. There is an issue regarding the number of boats moored and the inventory that was transmitted to us in 1981. We have two homeowners here , tonight who have been residing in our association since 1979 and 1980 and contend that they were grandfathered into and have the right to moor a boa down at the beachiot. One being a pontoon boat, which would be very difficult to move back and forth, in and out of the water. The other just a normal boat. It's their contention that they have been in the Association prior to the baseline and were led to believe that they could moor boating out in the water. We're not allowed to have a dock of course so mooring was the only option for them at the time. They are here to 1 Planning Commission Meeting May 6, 1992 - Page 4 speak directly at that issue and I've kind of just summarized the circumstances here. Batzli: Is it the Association's request that you get two boats or are ' these individuals not acting through the Association? Ken Hannemann: I would say it's the Association's request. I don't think we have a problem with the boats being there. It's an issue with the adjoining properties and so forth. Emmings: Is your Association asking that the boats that are moored be moored in front of the beachlot or continue to be moored in front of other neighboring properties? Ken Hannemann: Well that's a good question because our beachlot is only 60 feet. Emmings: And you have a swimming beach, is that right? 1 Ken Hannemann: Right. ' Emmings: So are you asking that the boats be moored in front of the beachlot or directly out from the beachlot? Ken Hannemann: Yeah. Emmings: That's what the Association wants? You want them moored in your swimming area? Ken Hannemann: Well, they're right on the property line now so it still affords us swimming area off to the side. Emmings: Okay, just wondered. Ken Hannemann: So you may have an issue with the easements and so forth. ' We haven't had a problem in the past with the pontoon being moored probably right on or a little bit over the property lines. ' Emmings: You understand that there is a setback from the property line of 10 feet? Ken Hannemann: Right. And if that setback were to be imposed, in essense 1 the pontoon would have to sit right in the middle of the lot. And if that's the case, then I guess we couldn't live with that as the Association. Because it would have to sit almost right in the middle of the beachlot so swimmers would have to go around. Emmings: That's why I'm asking the question and I guess I'm clear then on ' what, does the Association want the pontoon and /or the other boat to be out there but on the property line or over the property line in front of other other neighboring property? Ken Hannemann: I would say as close on the property line. Which could be an issue. 1 1 Planning Commission Meeting May 6, 1992 - Page 5 Emmings: Could be. Ken Hannemann: We do have the two homeowners here that are contending that they be accepted and be inventoried in this 1981 inventory so I would invite them to come up and address the Commission at this time. 1 Billie Windschitl: My name is Billie Windschitl and I've live in Minnewashta Creek Homeowners Association since 1979 and we've had our boat moored in the water in front of our beachlot. Well actually we had it a little off the boundaries of our beachlot because there was an older women that lived next door to us in this old house and she passed away last year and that's when the new homeowners came. But I heard somebody mention the 1 name Johnson. Now to my knowledge Mr. Johnson doesn't own that property but I don't know. Mr. Lund does. Mr. Ken Lund and Terry and, Mr. Thompson and Brian and I, we've had our boats out there for 12 years and II it's never been a problem. Batzli: Do you have the pontoon boat? I Billie Windschitl: No. I have the regular boat. Batzli: Okay. Sorry. II Billie Windschitl: It's regular. It's like a 16 foot. Batzli: Is this moored on the opposite side of the property then than the I pontoon boat? Billie Windschitl: No, it's like right past the pontoon boat. And they'rI not close to, they're nowhere near the swimming area. As far as safety goes, we never ever start our boats anywhere near the swimming area. Only past the swimming raft that's been out there since about 1985. Because nobody would swim out there. In other words, we wouldn't start our motor in the swimming area. I mean I don't know what to say. We've always had our boat there before, let's see it must have been a year before the 1981 1 paper so. Emmings: Could I ask you ma'am? Is the 16 foot boat, is it a runabout or what kind of a boat is it? I Billie Windschitl: It's like a ski boat. It's a Starcraft. Emmings: And when you say it's moored out there. How is it kept in one 1 place? Is it on a lift? Billie Windschitl: No. It just has a anchor. II Emmings: Is it moored to a buoy? Billie Windschitl: It's anchored in front and in the back. Emmings: Is it in front of the neighboring.property? II Billie Windschitl: It was in front of the neighboring property. II Planning Commission Meeting May 6, 1992 - Page 6 Emmings: Last year? Billie Windschitl: Yes. ' 11 Emmings: Every year? Billie Windschitl: Every year when that older woman lived there because it never bothered her. She never carne out of her house. Emmings: And what would you ask us to do about that? Are you asking us, do you want to keep parking your boat in front of the neighboring property? i Billie Windschitl: No. Emmings: What do you want to do? Billie Windschitl: I just want to leave it in the water so that we can use it everyday. 1 Emmings: So then you want it in front of the beachlot? I Billie Windschitl: Right. Emmings: And you understand there's a 10 foot setback. Billie Windschitl: Is it from the beach? ' Emmings: From the extended lot lines. You extend the lot lines into the water. There's a setback on each side I think of 10 feet. ' Billie Windschitl: So it has to be 10 feet in front the edge of the lot line? Emmings: Well that's what the ordinance says. ' Billie Windschitl: Or 10 feet from the beach? ' Emmings: No. In from the lot line. Billie Windschitl: It's a 70 foot. ' Emmings: Well regardless of the width, you•want it then in the area in front of the beachlot? Billie Windschitl: Right. And you know we've never had a problem with it and I don't know, for us to take our boat in and out every single night, it isn't going to make a lot of sense. And if nobody's complaining, I don't ' understand the problem. Why the problem even came up. Emmings: I think you can see the problem is that the neighbor doesn't want it in front of his house. And the Association doesn't want it in front of the beachlot. 1 Planning Commission Meeting May 6, 1992 - Page 7 1 Billie Windschitl: No, they didn't say that. 1 Ken Hannemann: If it has to be in the middle, then we really couldn't. Billie Windschitl: But if you were out far enough, would it make any difference? That's why I mean. I don't think they want it in the swimmin area but it's far enough out that you have to swim to it to get to it. Yeah, the pontoon's on a lift. 1 Emmings. Okay, thanks. Batzli: Thank you. Anyone else like to address the Planning Commission? 1 The pontoon boat owner for example. Terry Thompson: No. 1 Batzli: No? Okay. Anyone else like to address the Commission? Dana Johnson: My name is Dana Johnson. I've just acquired the property 1 next to these people. Back in 1991 they came to one of the Planning Commission's, just like this tonight, and they objected to me about having two docks on my property. Me and Ken Lund and so we did get set back to have just one dock and the reason was because of the boat traffic. These people are asking for now to put a pontoon boat and motorboat out in front. At the same time they did limit it. Tom Krueger, that represented the Minnewashta Creek Recreational Beachlot, fought me, just limiting me to onell dock on my property. Okay. And limiting my boat space also. So, and then the other thing too was that the ordinance says you have to be 10 feet from the lot line. Number 3, the question is why didn't they put on the application, on the beachlot application, why didn't they put that they were requesting a boat and a pontoon at the same time? Now instead of coming here and applying for it now. I guess I wasn't even aware of it. II I just happened to come tonight just to check it out. Let's see. And number three, there's nothing written in the ordinance in Minnewashta Beach saying that there is, that they can moor a boat there at this time. To my II knowledge, as Kathryn said earlier, that it's outlawed in their ordinance and so forth. So those are some of the things I did want to address. At this time there is a boat and a pontoon boat out there. At this time. , Batzli: Did you buy the property last summer? Dana Johnson: I bought it about 2 weeks ago. I closed on it. So I officially own it now. Batzli: Do you object to them having the boats there or do you object to I them being in front of your lot? Dana Johnson: Well I guess since they're objecting, the whole Minnewashta ' Creek Recreational Beachlot was represented here last year stating that I can only have one dock on my property. Ken Lund also is buying the other half of the property which is going to be located near to them. He can't make it here tonight so I guess I'm representing us both because it's still, in my name totally. So I guess legally I can speak for the whole thing. I guess like I said earlier, just because they took and limited my boat Planning Commission Meeting 9 May 6, 1992 - Page 8 access, I guess I have to object to their boat on the property. I'm giving you Ken Lund's feelings also on this due to the fact that he doesn't want it on his side of the property either. Batzli: Okay. I think the answer was. Farmakes: That's the opposing lot on the opposite side? Dana Johnson: I'm sorry. Farmakes: You're talking about Ken Lund. Ken owns the one lot or? Dana Johnson: I own it all right now but I have split the lot. Okay. Ken Lund will be owning on their side of the association. Emmings: Ken Lund is immediately north of the beachlot and he's then the next lot to the north. Dana Johnson: Right. Batzli: Not to belabor this point. When I asked the question I think you ended up, it started out that you were objecting to the both boats but then you ended up by saying that you don't want it on your lot. Dana Johnson: Well my lot legally is the whole thing right now. Mi Batzli: Correct. Correct. But you don't want it in front of Mr. Lund's lot? Dana Johnson: That's correct. I'm speaking for Mr. Lund. Batzli: Do you really object to the fact that they have two boats if they kept them in front of their beachlot? Billie Windschilt: Remember, we're not Tom Krueger and we didn't know anything about. Terry Thompson: I have to apologize for Tom Krueger. I didn't know anything like that went on. I swear to God. When did this happen? Batzli: You guys can discuss this after. Excuse me. Terry Thompson: We're neighbors. I don't want to start fighting with my neighbors. Dana Johnson: No, I don't either. Conrad: I don't even know if it's an issue between you. It's not an issue between the two parties. There are regulations as to how many docks so it's not like the beachlot, your beachlot would have said you can't have two docks. There are ordinances that say that so don't feel like that was the situation. 11 1 Planning Commission Meeting May 6, 1992 - Page 9 i Dana Johnson: My question is, I'm speaking for Ken Lund tonight and he wanted me to express those feelings. That he does object to the boat. 1 Batzli: Okay. Thank you. Mary Jo Moore: I'm Mary Jo Moore. I live on Dartmouth Drive inbetween two" beachlots. One conforming, one non - conforming and I guess I object to any expansion of the non - conforming beachlot. I don't think a swimming dock and, a raft is fine for the swimming beach but I don't think it's conducive, with motorboats. Just for a safety factor if nothing else. And I don't think this Council can rule whether a boat can be moored in front of somebody else's property. And the Association's already said they won't II accept it on their beach so I think the boat issue should be just closed right now. And I do object to any expansion beyond the '81 numbers. Batzli: Thank you. Anyone else like to address the Planning Commission? II Emmings moved, Ahrens seconded to close the public hearing. All voted in favor and the motion carried. The public hearing was closed. Ahrens: Is the Association objecting having the boats in the beachlot area? 1 Ken Hannemann: I don't think so as long as it doesn't interfere with the swimming. However, the lot being 60 feet wide, we can put restrictions... Terry's pontoon and it could be kind of difficult to achieve. Unless we put it out further. On the lake. Ahrens: Where's the pontoon boat located? , Terry Thompson: Right on the property line. Ken Hannemann: Right on Mr. Johnson's property line and our's right now. II Ahrens: So there may be some problems with the Association if you can't ' find this up. Ken Hannemann: If they kept it in the middle we probably would have problems. If they could keep it where it is or even a little bit further Al back, that shouldn't be an issue. A lot of the children in the Associatio are smaller and swim in the shallow water. And to my knowledge no one else in the Association has formally complained to me while I've been the II co- president that Terry and Billie's boats were causing a problem. Or in years past. Emmings: But they've never been parked in front of the beachlot right? Billie Windschilt: Yes. Oh absolutely. Emmings: Oh, okay. But that's on the lot line. ' Terry Thompson: That's on the lot line and mine's been there for 12 years" on the lot line. I Planning Commission Meeting May 6, 1992 - Page 10 Ahrens: But if you move that pontoon boat in 10 feet, that would be the ' swimming area? Ken Hannemann: Yes... 111 Terry Thompson: Is there an ordinance...from being moved out? Ahrens: Past the raft? ' Conrad: Not one of our's but the DNR might have. You can't be a hazard. If you're a hazard to boat traffic. Ken Hannemann: If the raft is out beyond where the pontoon would be, is there a restriction on how far out it can go? Ahrens: There may be because the DNR has restrictions on that. Ken Hannemann: Because in year's past we did put the raft out...further down the shore from our's. Aanenson: It could become an obstacle if it's out too far and the DNR ' would have to make an interpretation. That'd be the instruction. Farmakes: I have a question on the Minutes. Page 44 of the City Council meeting. July 8, 1991. The top. You're the current president of Minnewashta Creek Association? Ken Hannemann: Myself and Joan Skallman are co- presidents. ' Farmakes: Well this is her comment here. She's talking about, if we have a conflict with the owner of the boat mainly because they sold the property in 1978. They're talking about a pontoon boat. Is that the pontoon boat that we're talking about here? You're the owner? Terry Thompson: Yes. Farmakes: Where do you presently live? Do you live in the development? ' Terry Thompson: Right across the street. First house in the development. Right across the street. I walk across the street and get on the boat. Farmakes: Okay, but you live in the development, correct? ' Terry Thompson: Yep. ' Farmakes: Okay. Because I construed this to mean that you no longer lived in the development. I Ken Hannemann: This is in error. That's what Kate talked about earlier that she was under the... Aanenson: We called the Association and asked if this boat belonged to the 1 Association and they kept telling us no. It wasn't until today that they 1 Planning Commission Meeting May 6, 1992 - Page 11 1 said, oh it belongs to someone in the Association but not the Association. It was a misunderstanding. Farmakes: Okay, so you're a card carrying member of the Minnewashta Creek Association right? I don't know. It would seem to me the solution would I be to move it out as far as you could. I know this is very difficult for riparian rights because the problem is that it's a confusing issue. There are overlapping jurisdictions. Not only, I called somebody at the State DNR, Department of Waters today trying to figure out what this is because I've heard so many different definitions of where the jurisdictions fall. The comment they made was, it's depending on the lake but in this particular case, there are overlapping jurisdictions here. The fact of what it says on your deed means nothing. The City or the State still has jurisdiction in the matter and it's overlapping. What they go with is the lead, the most restrictive of the Covenants. So I noticed that there's II less argument with this and yours than some of the others but I guess my heart kind of goes out to the people who purchase things that they believe were right in the past. A lot of this problem has to do with the people who are selling you the property. They basically were selling you rights that you didn't have the right to sell you. Buyer beware. Unfortunately the City also has an obligation to maintain some sense as people buy a 60 foot lot and they want to put 20 boats in it. It's not conducive to safety' or good relations with your neighbors. I would hope on this thing, it seems to me that this is a reasonable, if you can move that out, or that boat out farther, that this would solve this problem. What they presently II have on here compared to what they had in 1981 seems to be... Erhart: The way I understand this is that the boat, up until a year or two ago, really parked, was somebody's boat parked in front of somebody else's , lot. Up until a year ago you had really no relationship to this beachlot. Only the last year was it in front of the beach. So the precedent there is only a year or two. The pontoon boat however you're saying has been parked, as part of this beachlot for 12 years? Terry Thompson: 12 years. Her's has too. , Erhart: It was parked in front of private, somebody else's property. Billie Windschilt: No. I said it was parked right on the property line. Terry Thompson: The old woman that lived there, she never used the lake or even come out of her house. We moved it over a little bit on front of her house but she didn't ever complain or nothing. And the pontoon's been out there for 12 years. On a lift. On the property line. Erhart: Okay, and you're both members of the Association? Terry Thompson: Right. Erhart: Well I tell you the problem with this whole thing is, we're going II to have to all sit here and say, we're going to have to develop some philosophy about what we're going to do with these things. How many have we got coming in this summer? 1 Planning Commission Meeting May 6, 1992 - Page 12 ' Aanenson: 12. Erhart: And then the problem is, if you don't do that, we can be inconsistent from one to the next. 1 Batzli: We're developing a philosophy as we speak right now. ' Erhart: Okay, can we pass it on then? Let it develop some more. Batzli: Sure. Ladd, go ahead. Conrad: I just got to repeat some, and we're going to repeat a lot of stuff but the boats have been there for 12 years. Both boats. U Terry Thompson: Both boats. Aanenson: That's what they're saying. Terry Thompson: And they have been. Conrad: But we don't have an inventory? When we did it. Aanenson: Whoever did the inventory back in 1981 didn't appear to be any boats. Terry Thompson: I can get affidavits swearing that they've been there. Roy Leech, he launches and pulls my boat out every spring and fall. He's got a pontoon trailer. I mean I didn't come here to lie to you. It's been there for 12 years. Aanenson: And maybe it was because it was on the property line of the ' neighbor's property. Conrad: You're going to have to bear with us because we are going to be ' watching 12 different groups come and we're trying to be consistent and so far we are not quite sure how we're going to do that. We're scrambling a little bit here. Ken Hannemann: We're the first one? Conrad: You're the first one. We thought you were going to be the easy one. At least I did. Kate. There was a public notice sent. It was published in the paper. Notice sent to who? Aanenson: On this one? Conrad: Yeah. ' Aanenson: Everyone on Lake Minnewashta and then the Homeowners Association. Conrad: Everybody on the lake? Aanenson: Yes. 1 Planning Commission Meeting May 6, 1992 - Page 13 1 Conrad: Every resident? Emmings: I didn't get one. I live on the lake and I didn't get one. I knew it was coming up however, because I got my packet but I didn't get one. Batzli: But it was everyone on the lake plus the entire homeowners association should have gotten on. ' Ken Hannemann: I got a copy and I forwarded it. Batzli: You sent to every house within the? i Aanenson: No, the president. Batzli: Just the president? Okay. Conrad: And that's okay for homeowners associations. I think that makes I sense. But Lakeshore, I'm real concerned about the neighbors on either side. We know we have one here but I don't know who else. I've got to be real careful. The swimming raft, in my mind, as long as the neighbors aren't protesting that raft, I don't see a problem with it. So I guess philosophically and I'rn going to try to tell you some opinions here. I'm going to do a couple things. I'm going to try for myself sink everything into the current standard but also use 1981 as a guideline. If I can. Anil some things will be in concert with what I hear neighbors saying. If they're complaining about something, I'm going to be real sensitive to that so that the raft, I don't see a problem with because I haven't heard the neighbors complaining a great deal about that. Which talks about intensification of use. And I'm not hearing that that's a problem. But I'm assuming Kate that neighbors got the notice. So some people did but anyway, so the raft is okay. I guess the boats moored. If there were 2 boats there in 1981, and we have an affidavit sworn to the fact that there were. And because it's less than what our ordinance would allow. Even though that wouldn't be a beachlot today but it is less than what our ordinance would allow today, I would feel comfortable with the 2 boats. But the 2 boats have got to be in front of the beachlot and can't, have to consider the 10 foot setback. That's real important. The neighbors have to have that space. Especially, that's real critical so I think how this gets worded later on, it's going to be a beachlot. It's going to be your Association that has to straight this out and I'd rather have you straighten it out than us. ' • Billie Windschilt: We have a neighbor on the other side that's...and I don't think he would have a problem if we put the boats... Conrad: What we don't know, doesn't hurt us. If that's comfortable for him, that's your relationship. We'd rather have your relationship. The ordinance is there to protect your neighbor and if he feels comfortable or 11 if they feel comfortable that you're doing that, that's between the two of you. Those are my comments. Dana Johnson: I just have a question here. How could the other neighbors" comment when it was never really on the application in the first place? 1 Planning Commission Meeting May 6, 1992 - Page 14 When they applied. ' Batzli: That's why, I'd just like to say that what we're going to do here tonight is make a recommendation. We've had the public hearing. The ' neighbor, all the neighbors will, it will go in front of the City Council, and Dick? Richard Wing: I happen to represent that neighbor. He had called me... Emmings: This is now the lot south of the beachlot? ' Richard Wing: That's correct. Chick Anding did call me specifically and I'm Richard Wing: City Council. And I realize this is a hardy issue and you're going to have some difficult decisions and I'm hoping that the ' decisions will be made here because we don't want to deal with them. We don't have the time and we'll be there for days on end if you can't resolve these. At any rate, in regards to Mr. Anding. He did call me. He said he ' had heard a rumor that they had asked for docks and so on and so forth. Apparently having to do with some Minutes from an annual meeting. I did call Kate and specifically ask what the permit was. She stated it was as status quo. No boats. No docks. I just referred that information to him. At that point he saw no reason to pursue this. He is concerned and he does care. About that issue., And if there were requests for docks or boats, he would clearly be here tonight. That's my opinion and I can't speak for him. Conrad: The issue is on the applicant it said no boats because of their misunderstanding of what, who owns the boat. Richard Wing: The application, because it stated no boats. He was comfortable that it was status quo and it took no action on his part. ' Ahrens: Dick, did he say he objects to the pontoon? The pontoon is right next to his property. ' Richard Wing: No. No. The pontoon boat is on Mr. Johnson's property. Terry Thompson: It's not on Mr. Johnson's property. It's on the property line. Richard Wing: Well, alright. It's on the property line. However, the moored boat was on Mr. Johnson's property and that was an issue because that's what prompted the recent City ordinance update. And I frankly, as long as I'm here, am concerned because we put a lot of time and effort into the restructuring of the, it's not the beachlot ordinance but the lake useage ordinance. And a couple things came out of that that are in effect at this time. Number one is that you have to moor the boat in front of your house if you own property. As it was before, in theory you could own ' it anywhere you want to. City ordinance now requires that you moor the boat in front of your property specifically. There is no leeway. Also, and I don't think staff has informed you of this adequately because these ordinances are in effect and I'm very sensitive about this dock setback zone. I don't think that's gotten enough issue tonight. If it comes to the Council, I'm going to enforce the dock setback zone and it has to be II Planning Commission Meeting May 6, 1992 - Page 15 1 part of every permit that comes in. Whether it's my home or anybody else' home or a recreational beachlot. And that says, the dock setback. No boat, portion thereof, raft, moored boat, boatlift can be in the dock setback zone. That's to protect the neighbor from neighbor. It protects the creek owners from Mr. Johnson throwing out his boat or pontoon or dock II straight out his property line and cutting off their lake useage. Or on the other side. In theory Mr. Anding and Mr. Johnson could put docks straight out their property lines and cut this beach off altogether. That's not fair and reasonable, nor is it fair to them to incringe on their" property. So the dock setback had unanimous support of the City Council. Emmings: And that's the 10 feet that you're talking about? II Richard Wing: That's the 10 feet. So I believe that the permit, and staff should be making that clear. And I think I've made it clear and I think the Council's made it clear that we support the dock setback and the permits are going to require dock setbacks. Farmakes: What about the issue on the report from the Director. It talks' aobut the setback but it also says that there's a limit as to who can dock in front of the property. It says here that you're changing that to II eliminate that. Richard Wing: Okay, a non - riparian lot is different than a riparian lot. The riparian lot has to be owner or blood relative to have a boat. So I 1 can have a boat or a blood relative. Now on the Associations, that's irrelevant. Farmakes: Unless there's a differentiation between the term moorage and II dockage. Did the city make a differentiation between that? Aanenson: Yes. II Richard Wing: Clearly. A moored boat cannot in it's mooring be within the dock setback zone. II Farmakes: The DNR says anything that confines a boat is a mooring. Whether it's a dock or something you tie it up to a tree. I Richard Wing: Well, because of this problem and the fact that the boat was physically on Mr. Johnson's property, this is one that percipitated it. There was a couple on Lotus I believe also. Or Minnewashta Heights that II just clearly put boat lifts 10 -20 feet over'in the neighbor's property and finally someone had to draw the line. There had to be a game play that was fair for everybody. I keep within my property lines. Everyone is expected, to do the same. Just the fact that they have 60 homes on a 40 foot lot such as Minnewashta Heights doesn't justify they take over the side properties. So I'll just put that out and again, I believe that staff II ought to represent those ordinances. Aanenson: Can I make a clarification on that? And I know Dick has concerns about that. I did speak to Roger on this. First of all, it II wasn't addressed in this specific instance because they weren't asking. The application came in with no boats, okay. So we didn't address it. II Planning Commission Meeting May 6, 1992 - Page 16 Secondly, I asked Roger Knutson, City Attorney, how does grandfathering ' apply to this? Well, if they were in a certain area and they had their dock in place and it exceeded what our dock ordinance has placed, they would still have the same grandfather rights whether it met the dock setback zone or not. So that comes into play. So it wasn't addressed on this specific one because my understanding was, and it wasn't clear until this afternoon, that those boats belonged to someone in the Association. And the application came in with none. We called people last week and they still told us, no. They're not association boats. So we were very confused. ' Farmakes: So if the other lot owner agrees to them moving their boats over in front of and mooring? ' Aanenson: No. Farmakes: That does not come under, that would not be allowed under the ordinance? Emmings: Right. ' Billie Windschilt: What about if we just keep within our own area? We discussed that. I didn't know anything about the setbacks. ' Farmakes: I don't know that, the setback that I got from the DNR today was 4 feet so I don't know how that plays into navigational hazards. Or if they'll give you a variance on that. ' Batzli: Ladd, were you complete? Conrad: I'm done. Dana Johnson: I'd just like to make one more comment on this. ' Batzli: Excuse me sir. Please. Let's complete and you'll get another opportunity, believe me. Ledvina: Okay. I guess one thing, if we do act on this this evening, we ' would have to, or I feel the need for the approval for the action on this to include a condition which would require affidavits from the two boat owners that the 1981 survey was in error. Terry Thompson: 1986 was too. Ledvina: Okay. Well, if we can go to that point and because our baseline ' is the 1981 survey and I think we need to stick to that. As it relates to the boats that had been moored since 1981 or sooner, I think that would be acceptable and then also as stated here, the setback requirements. ' Batzli: Okay, thank you. Steve. ' Emmings: Well, I don't if this is as difficult as we're making it. Maybe it is but I guess just my feeling on this is, number one. It's obvious that boats that are there can't be parked in front of somebody else's Planning Commission Meeting May 6, 1992 - Page 17 1 property no matter what else you do. And they can't be within 10 feet of 11 the lot line either. And now it seems to me the boats are in the swimming III beach and I think that's a real serious problem but I think it's an association problem. I don't see anything in the, whether those boats would have been grandfathered in as far as the city ordinance is concerned," had they been parked in front of the beachlot since 1979, I don't know, but I don't think it matters because those aren't the facts. Then I look at the conditional use permit for the beachlot that the City of Chanhassen is a party to and I don't see anything in there that allows any boats in front of the beachlot. So I don't know what, they can't be grandfathered in with respect to the covenants that set up the association and the beachlot. I don't think. Erhart: Steve, is this the '79 document that you're looking at? , Emmings: Yeah. So I don't really, I guess the application we got from the homeowners association does not ask that we approve any boats. Terry Thompson: I didn't know we had to get an approvement for a boat in II the lake. I didn't know. Emmings: Now wait. I've got the floor. The homeowners association has I not asked us to approve any boats. I want to know from the homeowners association if they're asking for boats now, with this application. Because we've got to act on this application tonight. 1 Ken Hannemann: And as the co- president, I would say we should have changed that to reflect two boats. I filled it out wrong I guess you could say I because I just pretty much reiterated the inventory in 1981 figuring that we weren't going to be allowed two boats...or be able to moor boats because the inventory showed zero. Therefore, we would be... Emmings: Now are you speaking on behalf on the association and saying that you want us to approve two boats in front of your beachlot? Ken Hannemann: Yes. Emmings: Okay. Well the swimming raft, I guess I'd say in general to what" Ladd and Tim have brought up in terms of having some kind of consistent approach to these things would be real nice but I think we're going to find out they're all very individual and we're going to have to very much go on I a case by case basis. I don't think we're going to be able to develop a consistent philosophy that we're going to be able to apply to each beachlot. With that in mind, an item like the swimming raft, since it's a swimming beach, seems like a very reasonable thing to me to have out there I and I'd support it. In fact, I'd support it even if the neighbors complained about it. Just because it seems reasonable to me. I think having boats within that swimming beach with the raft and knowing how kids like to play around objects like a raft or a boat, if it's parked there, I think it's incredibly dangerous and would be a foolish thing for the homeowners association to do at best. So I'd be, on those grounds, I would not be in favor of their being any boats. First of all because the 1 conditional use permit in 1979, which was in place at or before these people started putting their boats out there, doesn't provide for any 11 Planning Commission Meeting May 6, 1992 - Page 18 ' boats. That would be my primary ground for that. And number two, I think it's dangerous and unreasonable. I think it's too bad but I also don't think they can have their boats in front of somebody else's property and they can say they're on the lot line but when I'm out on the lake, and I looked at those last summer, they weren't on the lot lines. They were in front of the neighboring property, at least in my eye. And that seemed real clear to me. And it may be that the woman who lived there before didn't complain but I think that's completely irrelevant. So I guess, bottom line here. I think that what they've requested is all very reasonable. I would not approve the change for 2 boats. ' Batzli: Let me ask this question. Given the fact that we have at least one neighbor who did not come tonight because it's not on the application. Seeing as how we really don't know where they would intend to moor the boats in relation to the swimming beach. The issue is we don't really know where they would put them. We didn't know in advance they were going to have them. Staff didn't have a chance to look at it or even contemplate it. Does it make sense basically to give this back to them and say, reapply with what you really want at this point? So we can look at it and actually consider whether we want to give them boats or not. Because it seems to me that at this point say yes or no to the boats. I don't know. It seems obvious to me they can't put them on the neighbor's but I don't know where they would go in front of their beachlot or whether it would even be feasible. And it seems to me that I think the beachlot association ' really should consider and maybe, I mean he said that yes. He wants this to be part of their application but I don't believe they came in here understanding that there's a 10 foot setback that we're going to put the boats into and do they really want the boats if they're going to impinge on their beach. Because I think I heard the president at least partially say at one point, gee. Maybe we wouldn't want it then if that's where they had to go. So what my recommendation would be, is to basically give this back to the association and say, this is where, if we give the boats or even consider the boats, they're going to have to go 10 feet in. And do you really want the boats and come back with a complete application with everything in there that you really want. Because I don't believe that it's fair to have told at least one neighbor that don't bother coming. There's nothing in here and then we're going to stick him with 2 boats potentially along his lot line. Even they're only within 10 feet. I think he should be given an opportunity to speak on that issue. Conrad: Do you want him to speak here or in front of the City Council? Batzli: Well, that's the issue. Do we want to look at it? Is there anything else for us to add? And if we decide that we want to act on it ' tonight, then I would propose at least one or two things. That we look at. At least have some sort of system in regards to this after going through this once. Farmakes: Are there other areas that they should be looking into with regards to safety of the issue of storing these boats within the lot line? Such as other jurisdiction? e Aanenson: Yeah, we'll check on that. How far they can be out. 1 Planning Commission Meeting May 6, 1992 - Page 19 1 Erhart: I might suggest that we do, someone entertain a motion to pass it with the boats. Anybody who wants to table it or vote against it can vote nay. You could vote against it, whether you want to table it or you want to vote it down, your mind wouldn't change whether or not they brought it back. And then if it's voted down, then we can vote then again to table iti or to recommend no boats. That way we have the opportunity to pass it along here tonight. Do you understand what I'm saying Steve? Batzli: So you're basically saying that what Dick told us that he wants the decisions made here so they don't have to have a lot of new people coming up in front of them is meaningless and we just should pass it on? 1 Erhart: It's possible here that a majority would say, they're not going to vote for the boats whether or not they come back. Change their application. I can tell you, it's not going to change my mind. It's possible that we could finish it here tonight. If we vote on it that way. So if someone make a motion to vote it with the boats in. If that fails, then we can deal with the tabling and it's possible that we could finish this tonight. You understand what I'm saying? Emmings: I agree with Tim. ' Batzli: Is that, do people want to see it come back or no? Do you want to see it come back? Joan does. Farmakes: I'm concerned about the safety issue. I'm wondering what ' they're going to do if it comes down between boats going in there or them using the beach. I realize that's probably an issue to handle internally by themselves but I'd like to know what the guidelines are regarding that anyway. Batzli: But see, I would like to see for example how big their raft is going to be. Where they're going to put it and how big the boats are and II where they fit in relation to the raft. I don't see any of that. Farmakes: They're talking 69 feet. 1 Batzli: I don't see any of that. I don't know if it's safe or not. So I I don't know that I can vote yes or no on the boats. I think that they were there in 1981 and if that's what we're going to use as our baseline, then maybe I'll say yes. They may be entitled to some boats. But maybe I don't want them to have a raft, even though it's not as intense of a use because II maybe I don't want kids swimming out there and encouraged to swim out there to the boats. Erhart: I have a question. Is it Council's intent that we ignore the '79 I contract? Emmings: Yeah. How he'd get around the '79 thing? 1 Erhart: With the reading that we're supposed to try to find what was there in 1981, yeah. Probably boats were there in 1981 but are we supposed to completely ignore the '79 contract? Planning Commission Meeting May 6, 1992 - Page 20 11 Batzli: I don't know. My understanding was we look at the '81 baseline and we use that. Emmings: But I think this case is a little different in that there's an agreement to which the City is a party from 1979 talking about how that property is going to be used. Batzli: Well, that to me is another reason to bring it back and basically say to our City Attorney, you know. Do we look at this document and ignore the '81 baseline under the Statute? Under our ordinance. Emmings: That certainly didn't invalidate this agreement. That ordinance. Terry Thompson: On the safety issue, we do not start our boats until we're out past. As a matter of fact, there's water skiers that go right by our swimming raft... There's people that come right by there. When we push our boats out, we're way out past in deep water before we start them. Batzli: Well see, we don't have control over either the boats that come by ' right now and what we're trying to do is we're trying to avoid putting you know. Terry Thompson: This boat's been there for 12 years. We haven't had a problem. We're real safety conscious. Batzli: But if we approve it, we will most likely require you to move it closer in to the center of your lot and that may be aggravating the situation. We don't have all the information in front of us to be quite honest. We were all surprised at the last minute that suddenly there's boats in this equation and none of us knew that. Conrad: I think we should table this because...unknown and I'd like the homeowners to make sure they're in agreement. All of them and we need some guidance from the Attorney in terms of what this, you know the '81 versus the '79 conditional use permit. I don't know how to treat that. 1 Batzli: I don't know either. Conrad: There are enough things there that make it worth while. It would go up muddy and I'd prefer to have it coming back very clean. Batzli: Would anyone like to second that motion? 1 Farmakes: Second. Batzli: Any discussion? All in favor of tabling this application and requesting that the Homeowners Association renew the application and republish and send it to the attorney. Emmings: Little discussion? Batzli: Yeah. 1 11 Planning Commission Meeting May 6, 1992 - Page 21 Emmings: I'd like to see, I think it's very important for the President of the homeowners association to find out what all of those families with all II those children want to do in terms of having 2 boats parked in what's going to be a 50 foot, or 40 foot area in front of the beach. Because you're here representing them tonight and I know that but I don't know if they knew that was a possibility. So it would be nice to know what they think about I that. Conrad: Staff should be working in terms of what the DNR allows in terms II of moorings. How far out. Safety issues. We need that. The homeowners or beachlot owners, you need to know that information so you should be working with our staff too. 1 Emmings: I don't think there's anybody up here who wants to see you lose something that you've had for 12 years,'and I mean that sincerely. Even though right now I'd vote against you having your boats, that's not an easy thing to do and I don't think anybody wants to do it. And if there is some way to accommodate it, and for us to accommodate that historical use, that's fine. But I don't see what it is right now personally. 1 Batzli: Okay. I did promise this gentleman'. Did you have something that's still pertinent at this point? ' Dana Johnson: You pretty much covered it all. My question was, the 1979 covenants and you've addressed that. Batzli: Yes, we will address that. Conrad moved, Farmakes seconded to table action on the Non - Conforming Use II Permit for a Recreational Beachlot for Minnewashta Creek Homeowners Association for further clarification. All voted in favor and the motion carried unanimously. 1 Batzli: Please work with staff on resubmitting your application if you will. As far as the plan of attacking these, I think Ladd had an excellent idea and Matt as well. I think that if we're going to take a look at modifying our 1981 baseline based on the evidence presented, I think we would like some sort of evidence. Either by way of an affidavit, photographs, whatever. Something in writing. Something that we can take al look at and I would also like us to focus on whether it is an intensification which intrudes on the neighbors. Ladd kind of brought it up you know. The raft is fairly innocuous. Suddenly you start putting in boats. Intensifying it. It's intruding more on the neighbors and I think at least those two steps we need to take a look at as we're going through these applications. Unfortunately I think we're going to develop other factors as we go through these. Ahrens: I think too if we're going to ask for affidavits, we should ask for affidavits from adjoining landowners rather than anybody out there who may be interested, if possible. 11 r