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1d. Zoning Ordinance to amend section 20-406 regarding wetland variances I C / d.CHANHASSEN ,,," , 1 \ ,, ‘*- .,. 690 COULTER DRIVE • P.O. BOX 147• CHANHASSEN, MINNESOTA 55317 (612) 937-1900 • FAX (612) 937-5739 Action by City Adm'nistratoe I1,n,iors^= f LW it I MEMORANDUM Reject' __ _M r_s?- �1-gi Dcr TO: Planning Commission Date 51,z^.'`c'_ to :F-.~`-Sion II FROM: Jo Ann Olsen, Senior Planner Ala Date a-a5-9 L DATE: February 1, 1991 ISUBJ: Zoning Ordinance Amendment to Amend Section 20-406 Regarding Variances to the Wetland Ordinance - To follow I the Procedure as stated in Division 3, Variances of the Zoning Ordinance Just recently, staff was processing a variance to the Wetland I Ordinance regulations. Under the Wetland Ordinance regulations a variance to the standard is only reviewed and decided upon by the City Council. Typically, the only variance request to the Wetland I Ordinance is to the 75 foot wetland setback standard. Such setback standards are typically reviewed by the Board of Adjustments, where a decision is made or else the decision is passed onto the City Council. The City Council has directed staff to amend the I ordinance to require any variances to the Wetland Regulations to also be first reviewed or a decision made by the Board of Adjustments rather than just the City Council reviewing the item. ITherefore, staff is recommending the Planning Commission adopt the following motion: I "The Planning Commission recommends approval of Zoning Ordinance Amendment by replacing Section 20-406 with the following language: I "A variance from this section shall be reviewed by the Board of Adjustments and Appeals. The Board shall be empowered to decide appeals and grant variances only when the decision of I the Board is by unanimous vote. The simple majority vote or split vote by the Board shall serve only as a recommendation to the City Council, who shall then make the final I determination on the appeal or variance request. The variance process shall follow the guidelines set in Section 20-29 and 20-56 of the City Code. " IPlanning Commission Update The Planning Commission wanted the variance procedure that has them I review variances as part of platting, site plan review, conditional use permit or interim use permit also apply to wetland variances. When there is a variance request to wetland regulations during a I I Zoning Ordinance Amendment - Wetlands February 1, 1991 Page 2 plat, site plan review, conditional use permit or interim use permit review, the Planning Commission would make a recommendation ' to the City Council rather than it being reviewed by the Board of Adjustments and Appeals. It is more appropriate for the Planning Commission to be involved in such cases since they are reviewing the variance as how it applies to the whole application. The attached ordinance amendment from the Attorney's office provides for the Board of Adjustments to review individual wetland variances and the Planning Commission review variances as part of site plans, platting, conditional use permits and interim use permits (Attachment #1) . ' Recommendation Staff recommends approval of the amendment to Section 20-406 of the City Code as shown in Attachment #1. ATTACHMENTS ' 1. Letter from Roger Knutson dated February 14, 1991. 2. Planning Commission Minutes dated February 6, 1991. 3. Sections 20-30 and 20-56 of City Code. I i 1 I CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A. Attorneys at Law I Thomas J.Campbell Roger N. Knutson (612)456-9539 Thomas M.Scott Fax(612)456-9542 Gary G. Fuchs James R.Walston Elliott R Knetsch Gregory D. Lewis February 14, 1991 Dennis J. Unger I Ms. Jo Ann Olsen Chanhassen City Hall 690 Coulter Drive, Box 147 Chanhassen, Minnesota 55317 RE: Variances Dear Jo Ann: I Enclosed please find the ordinance you requested which amends Section 20-406 of the City Code concerning variances. Very truly yours, CAMPBELL, KNUTSON, SCOTT & FUC S, P.A. BY: Roger N. Knutson RNK:srn Enclosure I I I I RECEIVED FEB 15 1991 CITY OF cHAN. HASSEN 1 Yankee Square Office III • Suite 202 • 3460 Washington Drive • Eagan, MN 55122 11 CITY OF CHANHASSEN CARVER AND HENNEPIN COUNTIES, MINNESOTA 1 ORDINANCE NO. ' AN ORDINANCE AMENDING CHAPTER 20 OF THE CITY CODE, THE ZONING ORDINANCE, CONCERNING VARIANCES The City Council of the City of Chanhassen ordains: ' Section 1. Section 20-406 of the Chanhassen City Code is amended to read as follows: ' Variances from the requirements of this article may be granted in accordance with the variance provisions of this chapter. In addition, a variance may be granted based upon mitigative measures proposed by the applicant to recreate, ' to an equal or greater degree, the environmental and hydrological function of the wetland area that is proposed to be altered. ' Section 2. This ordinance shall be effective immediately upon its passage- and publication. PASSED AND ADOPTED by the Chanhassen City Council this day of , 1991. 1 ATTEST: Don Ashworth, Clerk/Manager Donald J. Chmiel, Mayor (Published in the Chanhassen Villager on , 1991. ) I JI 02114191 • I Planning Commission Meeting February 6, 1991 - Page 35 all- zoned R-12 right now and we're bisecting it or it's being bisected by TH 212 . The area north of the future highway is designated as park and based upon what the Council did, it's low density residential-with an overlay of park. Their attorney is saying well you 've down zoned my property and all this and the City Attorney was quite adamant about it. We had in no way down zoned anything. You still have that underlying zoning but the City was within' their .rights to do what we did. And furthermore, if we want to tackle it more directly, we should come in at a city response' or request to rezone that portion of the property that's inconsistent with the Comprehensive Plan. We would have the ability to do that and it's something we may want to consider . But right now it's zoned R-12 and if they came in with an R-12 project, we would not have sufficient grounds to ' deny them. I know I 've tried this against McDonald's where they took us to court because we had a property that was guided for industrial use but it I was zoned commercially. We told them that we would not, that it would be denied because it was inconsistent with the Comprehensive Plan. After about 12 months of litigation, we lost. Conrad: Well , I agree with the proposal . I just want the City Council to 1 know before this gets to them, or as it gets to them, if they're giving up any minor flexibilities that Paul is saying right now we're not . I just want them to be sure that anything we're giving up, I think we should know. But otherwise I think this is smart planning . Emmings: Any more discussion? ' Ellson moved, Erhart seconded that the Planning Commission recommend approval of amendments to Section 20-41 , pertaining to consistency with the Comprehensive Plan. All voted in favor and the motion carried unanimously. ZONING ORDINANCE AMENDMENT TO AMEND SECTION 20-406 REGARDING VARIANCES TO II THE WETLAND ORDINANCE TO FOLLOW THE PROCEDURE AS STATED IN DIVISION 3, VARIANCES OF THE ZONING ORDINANCE. 30 Ann Olsen presented the staff report on this item. Emmings: Don't we sometimes look at these when it comes in as part of a II subdivision or- a site plan? Olsen: Right . , Emmings: And would we be dealing with them, on those or would that also? Olsen: Well that's where it gets into the new wording of the variance. Where yes, under part of the Site Plan, yes you do. Emmings: We 'd be looking at it? Well now is that covered by these amendments or doesn't it need to be? Olsen: I believe that's covered under Site Plan Review. . . Where the 11 variances are now, the Planning Commission just looks at the variance as part of the subdivision and the site plan. I Planning Commission Meeting February 6, 1991 - Page 36 Emmings: Yeah , it seems to me we're going to be looking at these rather than the Board of Adjustments in those situations aren't we? . Krauss: Yes. If it 's associated with a subdivision. ' Emmings: Or site plan? ' Krauss: Or a site plan it would be processed in due course with that subdivision or site plan by you and the City Council . Olsen: So we need to connect those where it says now, where the Planning Commission has that control versus a typical variance , do we need. Emmings: No, you don't need to show it to me. As long as I just wondered ' if , since we 're saying that here it says that a variance shall be reviewed by the Board of Adjustments or Appeals and there's two cases where it 's not . Krauss: We should check the wording so , there's over riding language in here and we 'll make sure that this jives with that. ' Emmings: Okay . Is there anything else you wanted to add Jo Ann to the staff report on this? Okay. This is a public hearing. Is there anybody here that wants to comment on this? ' Erhart moved, Ellson seconded to close the public hearing. All voted in favor and the motion carried. The public hearing was closed. Emmings: Any discussion from anybody? Conrad: Who's on the Board of Adjustments? Olsen: It 's Carol Watson, Willard and Tom Workman . Krauss: And I think the Mayor 's still the alternate. ' Conrad: So we have one City Council member? How do we assort the Board of Adjustments? Is there a formula for assorting it? Olsen: I don 't know if that's ever been put into the By-laws but there's always been one of the Council members on there and then the rest are just ' general public. Ahrens: What is the Board of Adjustments and Appeals? Emmings: People that grant variances. Ahrens: That 's all they do? ' Krauss: They 're actually a quasi-judicial group . ' Olsen: They can make the final decision. Emmings: There should be a Planning Commission member . I I Planning Commission Meeting February 6, 1991 - Page 37 1 Olsen: They usually meet before City Council and they look at setback I variances or lot size variances : If it's unanimous approval , that 's it . It doesn't have to go in front of the Council . Emmings: Oh, I didn't know that. ' Krauss: Yes. In fact in a lot of communities, and I think under State Enabling Legislation , we have appeal to the City Council and a lot of II cities do but you don't have to . In a lot of communities, your next line of appeal is court . Olsen: Also , a lot of communities don't have a Board of Adjustments. The II City Council does it . Ellson: I like this. Just a little housekeeping it kind of looks like here . Emmings: Is there any other discussion on this? I guess the only thing I I 'd say is , I think perhaps it should say in this as part of that first sentence , or right after that first sentence, something about the fact that the Planning Commission will review variances in connection with II subdivisions or site plans. Just so it's complete, but that's not a big deal . Anyway , if there 's no discussion. Conrad: Well I do have some. Or just one thing that's sort of gnawing at I me . I think the Board of Adjustments has some background in dealing with the variance if we're talking the setbacks. I think they get, well knowing who 's there , they know that . But when you talk about variances to wetlands' ordinance, I don't know that that 's really, they've been educated in that. The standards and why's and what have you. I feel comfortable the City Council gets brought up into those things. They have the Statutes in our ordinance . It 's like introducing something brand new to a group that really is used to, we care if it's a 10 foot setback and the sideyard setback is 9 and then so now we're introducing wetland ordinance to them . I guess I 'm uncomfortable. Consistency it makes sense to do it but I 'm just not real comfortable. Emmings: Where we 've been real rigid, they may not be. What kinds of things will they typically look at a variance for? Like a deck? Olsen: Right . Emmings: Give me some more examples . Olsen: . . .but if we get into wording. . .that the Planning Commission would. . .look at that as part of a site plan. . .lot smaller than 15,000 square feet or closer than a 75 foot setback. You would be the group that 'd be talking about that. Emmings: So can you think of anything else other than a deck or how about an accessory building? Krauss: That too. But keep in mind there's no alteration to the wetland II here. If there's any alteration, that all comes for you through normal channels. The focus of the Board of Adjustment was pretty narrow at this II Planning Commission Meeting IIFebruary 6, 1991 - Page 38 point . I mean I think we 've cleaned that up . IIOlsen: They 're very strict. They would really have to. . . II Emmings: I know some of the people on there would be but I think Ladd's thinking of maybe of a different 3 people next week. Whatever , next year . II Conrad: I think we 've got to go along with it. Olsen: I think that technically we have always taken. . .another variance . I . think it 's just kind of. . .to what we can usually do. . . .amending that whole Iwetland ordinance. Emmings: Do you have a motion? IAhrens: I move that the Planning Commission recommend approval of the Zoning Ordinance Amendment by replacing section 20-406 with the following language , as written here except for the first sentence which shall be I changed as follows: Variances from this section, not required to be - reviewed by the Planning Commission, shall be reviewed by the Board of Adjustments and Appeals. . . . IEmmings: Sure . Is there a second? Conrad: Second . Emmings: Any discussion? . Ahrens moved, Conrad seconded that the Planning Commission recommend approval of Zoning Ordinance Amendment by replacing Section 20-406 with the following language: I "A variance from this section , not required to be reviewed by the Planning Commission, shall be reviewed by the Board of Adjustments and I Appeals . The Board shall be empowered to decide appeals and grant variances only when the decision of the Board is by unanimous vote. The simple majority vote or split vote by the Board shall serve only as a recommendation to the City Council , who shall then make the final I determination on the appeal or variance request. The variance process shall follow the guidelines set in Section 20-29 and 20-56 of the City Code . " IAll voted in favor and the motion carried unanimously. I ZONING ORDINANCE AMENDMENT TO REVISE ARTICLE V. FLOOD PLAIN OVERLAY DISTRICT. I .3o Ann Olsen presented the staff report on this item. Chairman Emmings called the public hearing to order . I Erhart moved, Ellson seconded to close the public hearing. All voted in favor and the motion carried. The public hearing was closed. C . ZONING §20407 responsibility otherwise imposed by law for damage to persons or property; nor shall the issuance of any permit serve to impose any liability on the city or its officers or employees for injury or damage to persons or property. ' (Ord. No. 80,Art.V, § 24(5-24-12), 12-15-86) Sec. 20-404. Establishment of wetland areas. , Lands lying within a wetland area shall be subject to the requirements established herein, as well as restrictions and requirements established by other applicable city ordinan- ' ces and regulations. The Wetland Protection Regulation shall not be construed to allow anything otherwise prohibited in the zoning district where the wetland area is located. The • wetland map,entitled"Chanhassen Wetland Map"dated May 22, 1984 is hereby adopted as prima facie evidence of the wetland areas and an official copy is on file in the office of the city clerk.Land within the wetland areas shall be classified as class A wetland or class B wetland as delineated on the map. , (Ord.No. 80,Art.V, §24(5-24.3), 12-15-86) Sec. 20-405. Determination of wetland area. ' An applicant for development which may be in a wetland area shall bring this to the .city's attention. If required by the city, the applicant shall provide appropriate technical information, including but not limited to, topographical survey and soil data deemed neces- sary for the city to determine the exact wetland boundary.The city council may exempt land from the wetland regulations if it finds that the land is not in fact a wetland.The city council _ shall make necessary interpretations concerning the wetland area based upon the wetland map.the definition of wetlands and the intent and purpose of this article. (Ord.No. 80,Art. V, § 24(5-24-2), 12-15-86) ' Sec. 20-406. Variances. - (/\ The city council may grant a variance from the requirements of this article.In addition,a - variance may be granted based upon mitigative measures proposed by the applicant to recreate, to an equal or greater degree, the environmental and hydrological function of the wetland area that is proposed to be altered. (Ord.No.80,Art.V, § 24(5-24-14), 12-15-86) Sec. 20-407. Prohibited uses in class A wetlands. The following uses are prohibited in class A wetlands: (1) Disposal of waste material including,but not limited to. sewage, demolition debris, ' hazardous and toxic substances,and all waste that would normally be disposed of at a solid waste disposal site or into a sewage disposal system or sanitary sewer. (2) Solid waste disposal sites, sludge ash disposal sites, hazardous waste transfer or disposal sites. (3) Septic or soil absorption systems. Supp.No. 1 1189 , RTTPtc4MEnrr 4.3 I ( ZONING §20-29 To hear requests for variances req s anances from the provisions of the chapter. ' (Ord.No. 80,Art.III, § 1, 12-15-86) State law reference—Board of adjustment and appeals,M.S. §462.354,subd.2. &\) Sec. 20-29. Variances generally and appeals. ' "' (a) Form; fee Appeals and applications for variances shall be filed with the zoning administrator on prescribed forms.A fee,as established by the city council,shall be paid upon the filing of an application.The board of adjustments and appeals may waive the application fee in unusual circumstances. (b) Hearing. Upon the filing of an appeal or application for variance,the zoning adminis- trator shall set a time and place for a hearing before the board of adjustments and appeals on such appeal or application,which hearing shall be held within thirty(30)days after the filing ' of said appeal or application. At the hearing the board shall hear such persons as wish to be heard,either in person or by attorney or agent.Notice of such hearing shall be mailed not less than ten(10)days before the date of hearing to the person who filed the appeal or application ' for variance,and,in the case of an application for variance,to each owner of property situated wholly or partially within five hundred (500) feet of the property to which the variance application relates. The names and addresses of such owners shall be determined by the I ( zoning administrator from records provided by the applicant. (c) Decisions of the board The board shall be empowered to decide appeals and grant variances only when the decision of the board is by a unanimous vote.A simple majority vote or split vote by the board shall serve only as a recommendation to the city council,who shall then make the final determination on the appeal or variance request within thirty(30)days ' after receipt of the board's action.The board shall act upon all appeals and variance requests within fifteen(15)days after the date of the close of the required hearing. (d) Appeal from decisions of board. Any person aggrieved by any decision of the board, including the applicant or any person owning property or residing within five hundred(500) feet of the property to which a variance application relates, may appeal sgch decision to the ' city council by filing an appeal with the zoning administrator within ten(10)days after the date of the board's decision.The procedure governing appeals to the board shall also govern ' appeals to the city council. (e) Council action. By majority vote, the city council may reverse, affirm or modify, wholly or partly, the decision appealed from the board, and to that end the city council shall • have all the powers of the board.The council shall decide all appeals within thirty(30)days after the date of the required hearing thereon. (f) Action without decision. If no decision is transmitted by the board to the city council ' within sixty (60) days from the date an appeal or variance request is filed with the zoning administrator,the council may take action on the request,in accordance with the procedures governing the board,without further awaiting the board's decision. (Ord.No. 80,Art.III, § 1(3-1-4(1)--(5),(7)), 12-15-86) State law reference—Appeals and adjustments,M.S. §462.357,subd.6. ' 1159 I ZONING §20-58 • chapter,including the zoning map to the council.If no report of recommendation is transmit. ' ted by the planning commission within sixty(60)days following referral of the amendment to the commission, the council may take action on the amendment without awaiting such recommendation. • (Ord.No.80,Art.III, § 3(3-3-4), 12-15-86) • Sec. 20-45. Council action. ' Following planning commission consideration of an amendment to this chapter including the zoning map, or upon the expiration of its review period, the council may adopt the amendment or any part thereof.in such form as it deems advisable,reject the amendment,or refer it to the planning commission for further consideration. (Ord.No.80,Art.III, § 3(3-5-5), 12-15-86) 1 Secs. 20-46-20-55. Reserved. DIVISION 3.VARIANCES Sec. 20-56. Generally. v C' A variance from this chapter may be requested only by the owner (or his approved representative)of the property representative to which the variance would apply.A variance I may not be granted which would allow the use of property in a manner not permitted within the applicable zoning district.A variance may,however,be granted for the temporary use of a one-family dwelling as a two-family dwelling. In granting any variance,the board of adjust- ments and appeals may prescribe conditions, to ensure substantial compliance with this chapter and to protect adjacent property. (Ord.No.80,Art.III, § 1(3-1-3(1)), 12-15-86) ' Sec. 20-57. Violations of conditions imposed upon variance;termination for nonuse. The violation of any written condition shall constitute a violation of this chapter. A variance shall become void within one (1)year following issuance unless substantial action has been taken by the petitioner in reliance thereon. (Ord.No.80,Art.III, § 1(3-1-3(1)), 12-15-86) Sec. 2058. General conditions for granting. ' A variance may be granted by the board of adjustments and appeals only if it finds all the following: , (1) That the literal enforcement of this chapter would cause undue hardship and practi- cal difficulty. (2) That the hardship is caused by special conditions and circumstances which are peculiar to the land and structure involved and which are not characteristic of or applicable to other lands or structures in the same district. 1161 • • 1