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9. Wetland Alternation Permit for 80 and 100 Sandy Hook Rd q ---� C ITY O F P.C. DATE: March 21 , 1990 I t:e C.C. DATE: April 9 , 1990 CASE NO: 88-13 WAP ' Prepared by: Olsen/v STAFF REPORT I . I PROPOSAL: Wetland Alteration Permit for Filling of a Class A Wetland along Lotus Lake Iz Q I =11. LOCATION: Rear of Lots 1 and 2 , Block 1 , Colonial Grove at LotusLake, 2nd Addition - 80 and 100 Sandy Hook Road C APPLICANT: Stephen Frost Robert Pfankuch Q 80 Sandy Hook Road 100 Sandy Hook Road IChanhassen, MN 55317 Chanhassen, MN 5531 / PRESENT ZONING: RSF, Residential Single Family IACREAGE: DENSITY: N/A ~,1r I ADJACENT ZONING L V/ .� �� AND LAND USE: N- Lotus Lake c•-._ -- ' S- RSF; single family .,.__..-4./z, i`i`' __ QE- Recreational Beachlot ______-16a 11°.- - - I41( W- RSF; single family 0 WATER AND SEWER: Water and sewer is available to the IW property. PHYSICAL CHARAC. : The lots slope toward Lotus Lake with the I 75 area adjacent to Lotus Lake previously containing wetland vegetation. The area now contains rock and sod. I2000 LAND USE PLAN: Residential Low Density LM / (�` C • - ' • •'� ' : i :'/Alla/ /I Q"4 s A cm _RD .,;,y MAST .� `1�/�9111�� ;;:'�_ ►i Imo; _ ',-� ; 4,..i'1 IRC • '.• ` io•■■sy ., ♦ '1,.2 wag OLYIVIC CIRO J• ' • -- "AM ...� . •IIR' r i CRCLE , ii B; . , 44 ° Arlitillatiltnft‘kinal�0'' 11��' ''I`�4 CASTLE RTIOQ wilft irk 16., ... �a 1 ac2114,1,- 7. .-sk- . , , - �`1�� _; Fox HOLLOW .,,TPAcit... ... 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Mr_ �rU Now VW1st ■W4mac, a �1 �is�+ ! � 1. ii :P iii IMO 21:1:C1..111 . r / 1 III .. ■ue■/' !' ire �-•. to I. h. : 11111 111111 2 r ^ .„ r, r. I _,.- ,...: — .1111hr,/�. TM T Frost and Pfankuch WAP 'aw"' _ March 21, 1990 Page 2 II BACKGROUND A wetland area adjacent to Lotus Lake was filled in the early I summer of 1988 along three properties (Frost, Pfankuch and recreational beachlot - Attachment #1) . While the property was being filled, staff was contacted by a resident questioning II whether this was approved. Staff from the Planning and Engineering Department went out to the site to determine exactly what was taking place. The staff that visited the site stated to I the applicant that what they were doing required a grading permit and that any further activity on the site was not permitted until a grading permit was obtained. The contractor filling the site came to City Hall and filled out an application for a grading I permit (Attachment #2 ) . The Planning Department again visited the site to determine if a wetland existed. Staff saw that wetland vegetation had existed and that a wetland alteration per- mit I was required. Staff contacted the applicants and stated that what was occurring was not permitted without a wetland alteration permit (Attachment #3 ) . I Staff visited the site with Paul Burke of the Fish and Wildlife Service who provided a report on the site dated June 30 , 1988 (Attachment #4 ) . After several contacts with the applicants, an , application was filed for a wetland alteration permit by Mr. Frost and Mr. Pfankuch on January 12, 1989. The application for the Pfankuch and Frost wetland alteration permit was brought I before the Planning Commission on February 15, 1989 (Attachment #5) . The Planning Commission tabled action until it could be clarified what actually occurred between the applicants and staff I and to allow time for the Lotus Lake Betterment Association ( recreational beachlot) to be included in the wetland alteration permit application since it became apparent that the wetland on their property was also filled. I Staff was in contact with the Fish and Wildlife, Corps of Engineers and the Department of Natural Resources at the I beginning of this process. The DNR responded that the fill was in violation of Minnesota Rules 6115. 0190 and that any permit to fill below the ordinary high water mark would be denied. Pat Lynch of the DNR stated that any fill below the ordinary high I water mark would be required to be removed and the area restored. Since the DNR was involved, staff felt that we should work with the DNR and the Fish and Wildlife to provide a plan agreeable to I all regulatory parties as to the amount of fill area that needed to be removed and how much of the wetland should be restored. The City and the DNR are the two agencies which have jurisdiction II over the wetland. The Fish and Wildlife was used as a resource. The DNR has required the property owners to remove the fill up to the ordinary high water mark by May 1, 1990 (Attachment 6) . The DNR has staked out the OHWM where the applicants have to remove the fill. I I II Frost/Pfankuch WAP ' March 21 , 1990 Page 3 On March 12 , 1990 the City Council approved the Planning Commission' s recommendation to have the Lotus Lake Betterment Association remove fill beyond the ordinary high water mark to a ' depth of 45 feet. Note: The year between tabling action by the Planning Commission and the current application (February, 1989 through February, 1990) was a result of staff and the applicant waiting for the DNR to decide how much of the wetland had to be ' restored. ANALYSIS ' Messrs. Frost and Pfankuch have made application to the City for a wetland alteration permit (after the fact) to allow for the filling of a wetland adjacent to Lotus Lake. The applicants are proposing to remove the fill below the ordinary high water mark as required by the DNR. Staff has reviewed existing conditions prior to development of the area and more recent surveys to ' determine the existing edge of the wetland prior to the altera- tion in 1988 (Attachment #7) . Staff also used the "survey" pro- vided by the contractor filling the area in 1988 as part of the ' grading permit (Attachment #8 ) . After review of past conditions , it is apparent that the wetland ' boundary went well beyond the ordinary high water mark. Attachment #9 shows the approximate edge of the wetland over the three subject properties . The property owners stated that the purpose of the fill was to remove purple loosestrife. Purple ' loosestrife is a noxious weed for which there is no known way to remove permanently from wetlands. What is known is that altering a wetland by dredging and filling only increases and proliferates ' purple loosestrife. The photographs provided by one of the pro- perty owners shows purple loosestrife growing through the sod (Attachment #10) . The City has consistently maintained a policy of no net loss of wetlands . When wetland alteration permits are permitted the end result is an improved wetland. Typically, Class B wetlands are ' the type of wetland allowed to be altered and improved. Class A wetlands are typically not allowed to be altered and only if it is an improvement to the quality of the wetland. Filling a Class tA wetland is not an improvement to the quality of the wetland. The filling took place prior to contacting the City, DNR, etc. and at the very least the contractor doing the work should have ' known to contact the applicable regulatory agencies. As a result, an extensive amount of wetland has been removed and replaced with sod and gravel. Whatever benefits the wetland pro- vided in terms of water quality, natural habitat, etc. , no longer exists . If the applicants had following the correct procedure I Frost/Pfankuch WAP March 21, 1990 Page 4 and applied for a wetland alteration permit prior to any altera- tion, staff would have recommended against filling the wetland and would have recommended another means of removing the purpose loosestrife. Therefore, staff is recommending that the fill be removed to the previous edge of the wetland, beyond the DNR' s requirement of only to the ordinary high water mark. We not only desire to return a valuable wetland to its natural state, but also to avoid creating what we believe to be a poor precedent. If fill is allowed to remain it would send a signal that illegal filling is an acceptable way in which to circumvent the wetland protection ordinance. The applicants are proposing to remove the following areas of fill as required by the DNR: Depth x Width x Depth Frost ( Lot 2 - 80 Sandy Hook) 10 ' x 75 ' x 26 ' (Attach. #11 ) Pfankuch ( Lot 1 - 100 Sandy Hook) 5 ' x 78 ' x 10 ' (Attach. #12 ) The areas of fill shown by the contractor as part of the grading application were as follows: Frost (Lot 2 - 80 Sandy Hook) 45 ' x 72 ' x 45 ' (Attach. #13 ) Pfankuch ( Lot 1 - 100 Sandy Hook) 45 ' x 78 ' x 42 ' (Attach. #14 ) ' The increased depth beyond the ordinary high water mark is con- sistent with the area of unaltered wetland that staff found through old aerials and surveys. As with the wetland alteration permit for the Lotus Lake Betterment Association, staff is recom- mending that the fill be removed beyond the ordinary high water mark to the edge of the unaltered wetland. Therefore, staff is recommending that Frost remove a depth of 45 ' of fill and Pfankuch remove a depth of 45 ' and 42 ' of fill . Any docks on the property will have to be accessed by a boardwalk which will per- mit the wetland to return to its natural state. A pathway or other means of access to the dock which removes wetland should not be permitted. Staff will stake the area of fill which shall be removed. PLANNING COMMISSION ACTION The Planning Commission recommended approval of staff ' s recommen- dation with an additional condition which states that if the owners can prove that the wetland did not extend into their properties from the lake as far as being required to remove fill, this will be taken into accounty by staff and the amount of fill removed will be adjusted accordingly. Frost/Pfankuch WAP ' March 21 , 1990 Page 5 STAFF UPDATE During the Planning Commission meeting, the applicant' s attorney claimed that the applicants had receivd a grading permit which ' allowed the area to be filled. The applicant' s contractor filled out an application for a grading permit but a permit was never approved or issued by the City. A letter sent to the applicant by Barb Dacy stated the grading permit has been applied for but ' that it appears a wetland exists and a wetland alteration permit would be required ( see attachments) . As staff has stated, a wetland did exist on the property and the wetland was filled ' without a permit. Staff is comfortable with and supports the recommendation of the Planning Commission. ' RECOMMENDATION Staff recommends the City Council adopt the following motion: ' "The City Council approves Wetland Alteration Permit #88-3 with the following conditions : ' 1 . Lot 2 , Block 1 , Colonial Grove at Lotus Lake 2nd Addition, shall have 45 ' x 72 ' x 45 ' of fill removed measured from the property line adjacent to Lotus Lake as shown on the final ' plat. The fill will be removed by June 15, 1990, using the typical cross section provided by the DNR. 2 . Lot 1 , Block 2 , Colonial Grove at Lotus Lake 2nd Addition, ' shall have 45 ' x 78 ' x 42 ' of fill removed measured from the property line adjacent to Lotus Lake as shown on the final plat. The fill will be removed by June 15 , 1990 , using the ' typical cross section provided bvy the DNR. 3 . The applicant shall be permitted one boardwalk through the restored wetland to provide access to the dock. 4 . The area of removed fill shall be allowed to restore to a natural state. ' 5 . Any purple loosestrife that returns shall be immediately removed as recommended by the Fish and Wildlife Service manual , "Spread, Impact and Control of Purple Loosestrife in North America Wetlands" . 6 . Prior to any work being done on the site, the applicant shall submit for City staff approval a grading and erosion control plan. ' 7 . If the property owners can present proof to the satisifaction of the City Staff that the wetland did not extend into their properties from the lake as far as they are being required to remove fill , then that should be taken into account and the amount of fill to be removed should be adjusted accordingly. Frost/Pfankuch WAP March 21 , 1990 Page 6 , ATTACHMENTS I 1 . Area of Filled Wetland. 2 . Grading Permit Application for Pfankuch and Frost. 3 . Letter to Pfankuch and Frost dated August 25, 1988 . 4 . Letter from US Dept. of Interior dated July 11, 1988. Letter from US Dept. of Interior dated August 31, 1988. Memo from Paul Burke dated February 10, 1989. 5 . Planning Commission minutes dated February 15, 1989 . 6 . Letter from DNR dated February 2, 1989 . 7 . Plan indicating pre-existing wetland conditions. 8 . Area grading for Lots 1 and 2 proposed by contractor . 9 . Edge of Wetland prior to alteration. 10 . Photographs . 11 . Letter and site plan from Frost dated January 31, 1990. 12 . Letter and site plan from Pfankuch dated February 13 , 1990 . 13 . Frost grading permit application site plan. 14 . Pfankuch grading permit application site plan. 15 . DNR proposal of removal of fill . 16 . City' s proposal of removal of fill. 17 . DNR typical cross section. 18 . Letter to Dr . Charles Hirt from DNR dated December 6 , 1989 . 19 . Letter to Dr . Hirt, Mr. Pfankuch and Mr . Frost dated December 11 , 1989 . 20 . Planning Commission minutes dated February 21, 1990. 21 . Letter from Barb Dacy dated June 29 , 1988 . 22 . 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JJ__ �V uate AfO• V 1 01 ° Permit No. APPLICATION FOR EXCAVATING PERMIT Fee: Owners Name ` / / ` / -� s 4 1 I Tele hone • Address 00 I a •C .1 s Excavator Lap, t ra Sa14 ©© - 'al g. f '/ v i © i Tele.hone g'` Address / _ d y , Plitit 5:57fig I Lot / ,/ e2 Block E. d Subdivision Site Address 'Q =^ r A R • 01 Descript on of 7rk t o be don : 4o -a_ k---e_ ct . Se- .- �D,,� 111,110, _ - 1 ___rgjd Indicate the use or occupancy for which the proposed wo k is i intended: ,t / tc / A" ..., _ 41 ■ Estimated quantity of excavation 61 cubic yards Plot plan showing present elevations. Elevations after excavation is completed: I Elevations of neighboring property within 15 feet of excavation: I • Location of any buildings or structures on the property where the work is to be performed and the location of any buildings or structures on land of adjacent owners which are within 15 feet of the property or which may be affected by the proposed I operations : P grading PI P I 1.4e/ AwflAr ./ ..,./.// / 'P ICA T S S '. - ..Z ■ r' . - _ CIS OF il 1 1 , .., ._._\.; ._...- • CHANHASSEN 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937-1900 August 2 ` , 1988 Mr. and Mrs. Bob Pfankuch 100 Sandy Hook Road Chanhassen, MN 55317 I and Mr. Steve Frost I80 Sandy Hook Road Chanhassen, MN 55317 IDear Mr. and Mrs. Pfankuch and Mr. Frost: Enclosed for your review is a letter from Mr. Paul Burke I reviewing his field investigation of your property adjacent to Lotus Lake. Mr. Burke is our contact from the Fish and Wildlife Service for consulting on wetland issues. IMr. Burke felt that wetlands were present on the subject sites prior to being filled and sodded. We are sending Mr. Burke your information and pictures of what the wetland looked like prior to I its alteration. We have asked him to comment on the filling of the wetlands and if that was an acceptable way to try to remove purple loosestrife. ISince it has been confirmed that wetland characteristics existed prior to the alteration of your shoreline area, it will be necessary for you to receive a wetland alteration permit from the I city. The wetland alteration permit process is a public hearing and is reviewed by the .Planning Commission and City Council. The city will wait to receive comments back from Mr. Burke on the I . information you have submitted prior to initiating the wetland alteration permit. Once the information has been received from Mr. Burke, the city will contact you to advise you of when the next application deadline is and what information is necessary to Isubmit for the wetland alteration permit process. Should you have any questions, please feel free to call me. ISincerely, IJo Ann Olsen Assistant City Planner Icc: Barbara Dacy `l T ��,[Nf Os 111b.- Ili ,`rte \\ tiF r 1 . II mmon - ... - .4. ,--)Is United States Department of the Interior `AI RKA°Z■ MIIIIIMmomina .<40. FISH AND WILDLIFE SERVICE �• , a In ST. PAUL - ewe FIELD OFFICE (ES) r ■ TO- 50 Park Square Court IN REPLY REFER T SPFO 400 Sibley Street St. Paul, Minnesota 55101 July 11, 1988 I I Ms. JoAnn Olsen Assistant City Planner • City of Chanhassen I P.O. Box 147 Chanhassen, Minnesota 55317 IDear Ms. Olsenz In response to your June 30, 1988 request, Paul I this office conducted our on-site review of four wetland of sites within the City of Chanhassen. I am enclosing herewith a copy of his report for your I information. If you have any questions or require additional information, I please contact us at your convenience. Siin ncerely, I /' / r I-±--r---1----;;;Ca.- 'lit-e' . C.., ...----e„---\-, Robe . Welford rt _ Field Supervisor IAttachment / I I • I I i:t : 1Q?8„ 's. f .� J1r 4T.D _ - CITY OF CHANT ASSCN I likr. : i ' r Subject: Report of Field Investigation of four wetland I sites within the City of Chanhassen, Carver I< County, Minnesota Field Investigator: Paul Burke IDate: June 30, 1988 IFollowing my on-site review, I have determined that wetlands are present at each of the four subject sites, and each of ' I the first three sites have been or will be impacted by site development. f . f . Site No. 1 IThis is a lake shore wetland behind the Colonial Grove Tennis and Beach Club, 80 Cheyenne Terrace, and 100 Cheyenne Terrace. The affected area appears to have been recently 'E filled to an elevation of approximately 1 foot (vertical) above previous grade, sodded, and stabilized at the water' s edge by a cobble wall. By examining the condition of the Ishore line vegetation on each of the bounding property lots, I found evidence of hydrological conditions that would confirm my determination that the adjacent properties are palustrine emergent and palustrine scrub-shrub wetlands (Circular 39 Type characteristics of 2, 3 , and 6 ) . The evidence provided the positive identification of each of three parameters needed for wetland delineation. The soils were a peaty-silt (histosols) , and all histosols are a hydric soil type. The vegetation canopy was dominated by red-ozier dogwood (Cornus stolonifera) , and ground cover I consisted primarily of reed canary grass (Phalaris arundinacea) , broad-leaved cattail (Typha latifolia) , and purple loosestrife (Lythrum salicaria) . Each of the above I species are classified as FACW-, or wetter designation, hydrophytes. The water level at the time of the site visit was less than one vertical foot below the median elevation of the affected wetland. In consideration of recent drought Iconditions, it is reasonable to assume the hydrology of the site ranges from saturated to permanently flooded. I Barring any information to the contrary, we can assume that prior to the recent shoreline enhancement project at this site, most, if not all, of the recently sodded area was a I wetland with characteristics and values similar to those found on the adjacent properties. The majority of these wetland values could be recovered if the fill were removed, and the area allowed to revegetate. I . 11 ENT Or �y� 1� err TAKE f United States Department of the Interiorca � I FISH AND WILDLIFE SERVICE i I "�►/ ^`7 ST. PAUL FIELD OFFICE (ES) 50 Park Square Court 04 REPLY REFER TO: 400 Sibley Street St. Paul, Minnesota 55101 SPFO August 31, 1988 Ms. JoAnn Olsen ' Assistant City Planner City of Chanhassen P.G. Box 147 Chanhassen, Minnesota 55317 Dear Ms. Olsen: ' This responds to your August 24, 1988 letter regarding the unauthorized placement of fill in a wetland as a method for removing purple loosestrife. We have reviewed your letter, along with the attached photographs of the affected site. Apparently, it is the position of the property owners that the purpose of the wetland fill activity was to rid the affected area of purple loosestrife (Lythrum salicaria) . The following comments are provided for your consideration. ' Purple loosestrife is a non-native plant species, a hardy perennial introduced from Europe. Being an exotic species, it has thrived in the absence of competition from other plant and animal species that • are native to the European continent. Such an aggressive invader tends to crowd out other wetland species that are native to our North American continent, which substantively reduces the fish and wildlife habitat values associated with the affected site. However, the other known wetland values, such as floodwater retention, water quality enhancement, groundwater recharge, etc. , remain largely unaffected by purple loosestrife domination. It is for this reason that we consider the destruction of a wetland to remove purple loosestrife to be an inappropriate remedy. ' Attached is a small pamphlet from the Minnesota Department of Natural Resources that proscribes both mechanical and chemical controls for this undesirable species. We encourage the organization of neighboring property owners for the purpose of developing and SEP : 1988 411, 4P "/ ' 2 11 instituting a control program that can produce effective controls in three to five years with the limited use of herbicides and without the loss of other wetland values. ' Sincerely, _ /James L. Sm. h Acting Field Supervisor Attachment cc: Howard Krosch, MN DNR, St. Paul, MN 1 1 . . - 1 f 1 Date: February 10, 1989 ' To: File - Chanhassen From: P. Burke, SPFO Subject: The Lotus Lake Wetlands Restoration I conducted a site visit with Steve Hanson (Chanhassen/planning) at the Lotus Lake shore line wetland site near the Colonial Grove Beach Club. The Colonial Grove property, and the neighboring Frost and Pfankuch properties, have had part or all of their wetland fringe backfilled and converted to turf. The historic wetland boundary was a line roughly parallel to the lake shore but approximately 50 feet landward. The subject wetlands were destroyed between the western boundary of the Pfankuch property to the eastern side of the Colonial Grove property, or just east of the club's dock. Such lacustrine and palustrine wetland resources play an important role in helping to maintain the physical , chemical , and biological integrity of Lotus Lake. The loss of littoral wetlands can dramatically alter the condition of lacustrine systems. I have recommended that the affected area have portions of the wetlands ' restored in an effort to recover some of the resource values lost to project implementation. I have generated a plan that includes the approximate size, shape, and location of wetlands that should be restored. The plan displays 5 areas, in dark-shaded triangles, that should be excavated to a depth of 12 to 16 inches below existing grade. These areas will act to trap, filter and improve the quality of surface runoff moving toward the lake. Revegetation will occur naturally if the area is left undisturbed by the landowners/managers. Once established, these restored wetlands should be protected from further disturbance, including any attempts to alter the vegetation, soils, or hydrology. Given the composition of vegetation on adjacent wetlands, it is likely that the area will recover with a mix of hydrophytes that will be dominated by cattails and purple loosestrife. Even a monotypic canopy of purple loosestrife is of greater ecological value to Lotus Lake than is the existing turf. The size of each of the five areas will vary slightly, but the lakeward ' base of each triangular area should be 15 feet in length and the landward height of each area should be 30 feet in length. cc: Steve Hanson, City of Chanhassen (Planning) Jerry Smith, U.S. Army Corps of Engineers, St. Paul (Reg. Functions) FEB 151989 arc OF.CHANSSI 1 II • } Mr. Steven Frost Page Two ' Please contact this office within 30 days of receipt of this letter to discuss the appropriate method and timing of restoration. If we do not receive a response within that time, we must initiate appropriate legal action necessary to uphold the law and protect the public's interest. Please contact Pat Lynch of my staff to coordinate your restoration efforts. Sincerely, ' 044 ' Jo Linc Stine Re onal Hydrologist cc: JoAnn Olsen, City of Chanhassen Ken Harrell, IISCOE Bob Obermeyer, Barr Engineering Steve Walter, C.O. PL209:kap • — --- CHANHASSEN PLANNING COMMISSION I REGULAR MEETING FEBRUARY 15, 1989 II Chairman Conrad called the meeting to order at 7: 35 p.m. . MEMBERS PRESENT: Steve Emmings, Annette Ellson, Ladd Conrad, Brian I Batzli , Jim Wildermuth and David Headla MEMBERS ABSENT: Tim Erhart I STAFF PRESENT: Steve Hanson, Planning Director II Emmings moved, Batzli seconded to move the Organizational Items on the agenda to after the Approval of Minutes. All voted in favor and the II motion carried. PUBLIC HEARING: I J,WETLAND ALTERATION PERMIT FOR THE FILLING IN AND SODDING OF A WETLAND ON —PROPERTY ZONED RSF AND LOCATED AT 100 AND 80 SANDY HOOK ROAD, BOB PFANKUCH AND STEVE FROST, APPLICANTS . I Public Present: Name Address I Mr. and Mrs. Bob Pfankuck 100 Sandy Hook Road Mr. and Mrs . Steve Frost 80 Sandy Hook Road II Cindy Gilman President, Lotus Lake Homeowners Assn. Thomas Gilman 6613 Horseshoe Curve Lane Barbara Montgomery 7017 Dakota Avenue IISusan Conrad 6625 Horseshoe Curve Lane Steve Hanson presented the staff report. I Conrad: Just one comment. Our wetland ordinance is more restrictive than the DNR's and our wetland ordinance specifically talks about areas above II the ordinary high water mark. Basically what staff is recommending in this report is saying that the areas that are sanctioned by other governmental bodies will get some feedback. I 'm curious what we' re II talking about in terms of the property that's above the ordinary high . water mark which our ordinance governs. Hanson: The area above the ordinary high water mark is. . .Fish and I Wildlife talked about. Conrad: So in the red? I Hanson: Yes. Conrad: And then in the blue? . I II 1 II Planning Commission Meeting February 15, 1989 - Page 2 Hanson: The blue is actually the edge of the shoreline. In the alternative, we looked at establishing. . . In talking with Fish and ' Wildlife, they thought that was probably going a little too far . Conrad: Okay, we will open it up for public comments . What I would like to do is have the applicants for the permit speak to us first. Either of the applicants in relation to the staff report or anything else, if you would like. ' Mrs. Pfankuch: First of all , I 'm a little unclear about the recommendation. Is this . . .? ' Hanson: No. That 's just representative. In his memo, I believe he stated a size in the last paragraph that they should be 15 feet in length and come back inland 30 feet. Mrs. Pfankuch: And what is the blue line? Hanson: That ' s just delineating where the edge of the water is now. Mrs. Pfankuch: So they' re asking for a triangle between our property. One between our property and the Monroe' s property and one between our property and. . . Hanson: Right . ' Mrs. Pfankuch: Well , all of the information is in the file but what we were attempting to do is get rid of the loosestrife. We called a contractor and he came down and started to do the excavating and the Village came and looked at it and told us to proceed. We certainly want to cooperate with the DNR and whoever . We don' t want to cause a problem. I guess we' re not totally convinced that loosestrife is less of a problem than that sod . We didn ' t have cattails. We had loosestrife totally. 7 feet tall. You couldn' t see anything but loosestrife. As far as wildlife, now we' ve got geese living on the shore. In fact, they' re a nuisance. Our dock is slippery from the geese so as far as wildlife, they certainly like it better now. That isn' t to say that we we don' t want to cooperate, we do but I guess we' re a little unclear about exactly what we' ll accomplish by tearing up however much we're talking about here. ' Conrad: I think, and I don't know if I can be a spokesperson for that because I haven' t seen the plan and I 'm not an expert in the area but we do have a wetland ordinance and we've been pretty restrictive on a lot of ' your neighbors. Having built boardwalks where they would like to put docks. They had different opinions of what they'd like to do but we enforce the ordinance because the runoff, especially through your area is significant. With the wetland behind your house and Herb Bloomberg' s wetland being destroyed, which is probably one of the best wetlands in town, that whole area is real susceptible to, the water quality is really going to take a major hit every time we destroy a little bit of wetland . ' But I don' t know that that's an issue. It just happens that that particular problem is in your area. But also, there is a lot of water that's going into the lake and we, as a community, have been trying to 1 Planning Commission Meeting February 15 , 1989 - Page 3 prevent that kind of runoff . Whether it be wetlands that are under our control or wetlands that are under DNR control or somebody elses. It' s been a city policy to be real stringent on what we do. Mrs. Pfankuch: And we don't disagree with your having a policy. , Certainly we don' t want to cause a problem. The loosestrife, our understanding when we started the project, was that the loosestrife was a major problem. It certainly was a noxious thing on our shore. We had these big clumps of yuk and the tires would float in and stick in it and it was a real mess . It' s hard for me to be convinced that loosestrife is better. You were talking about the wetlands, where? Behind our property? You mean up where they've dug out the cattails and build the houses? Conrad: Yes . And the only reason that happened is because they got the permit to do that many, many years ago. They had a subdivision that superceded our ordinance. That' s probably one of the best functioning wetlands in the city. It' s beautiful but it' s being buried right now. I It's not your problem and it doesn ' t really, it may end up to be a little bit of your problem but that has nothing to do on this particular one. Mrs. Pfankuch: We have the sewers also, and I 'm sure you 're aware of that. We have two sewers on our property. One between ours and Frost' s property where the water runs down and then out a culvert. Now the loosestrife had totally filled that culvert. That was not draining into the lake. It was backing up and doing whatever because the loosestrife had clogged the opening of that outlet. That stuff, I don't know what you know about it but that stuff is like, like from outerspace. It just takes I over. But we' re certainly not in disagreement with talking to the DNR and see what it is that they' re proposing . We don' t want to be disagreeable here but we are concerned about the lake and certainly about ecology but that loosestrife is awful . ' Conrad: Thanks for your comments . Cindy Gilman : I live on Horseshoe Curve. I am currently the President of I Lotus Lake Association. I guess a couple of the things that I was concerned about is that you said that the loosestrife is a problem and that it needs to be handled . There are chemical treatments to handle the I loosestrife so that the wetlands can become healthy again and help be restored instead of clearcutting and filling in and then there would be no chance of any type of a natural filter to help the lake along there. I I also question, I guess the way it was done. The contractor that did it, I assume most contractors know that there are laws that they have to follow. I had someone come in to look at part of my lakeshore to help redo it II because it was falling apart and most contractors are aware that they need to clear things through the DNR. That there are things that are properly done and things that are not properly done on a lakeshore. Anyway, so I question the contractor. The contractor that filled it in. I guess it bothers me that it was gone ahead and done and then after the fact, they are looking to get the permit now instead of before. It seems that there was an awareness there. There was an awareness of the purple loosestrife and you knew that was a problem and why you didn' t seek help or talk to • 1 II Planning Commission Meeting February 15, 1989 - Page 4 counsel or talk to people to find out what you could do about the loosestrife and what was legal and what was not. I guess that ' s it . Thank you. Thomas Gilman : I 'm also from Horseshoe Curve and I guess my problem with ' this is that this has been done previously where people have come in. They've altered their land . I don' t think these people just fell off a cabbage truck and I think that they know that you need a permit for this type of thing . I think that they decided to step ahead of the law. Have ' the work done figuring it would be easier to come and get a permit afterwards. I think they should be required to return it to it' s natural condition and then once that's done, then come in and make this ' presentation because this is an afterfact. I don' t think that the lake was taken into consideration. I think that the loosestrife is being used as kind of a scapegoat. ' Conrad : Two quick comments . What are the contractor ' s responsibilities Steve when they start excavating around a lake? What do they have to do? Do they need a building permit? ' Wildermuth: Do we require an excavating permit of dirt contractors? Hanson: Yes . Wildermuth: So he didn ' t come in and apply for one? ' Hanson: I found an excavating permit in the file. I don' t know the history behind when it was done . It could have been done after they had started but I 'm not sure if that' s true or not. ' Conrad : Would you make sure that City Council knows whether it was true or not by the time this gets to them. ' Wildermuth: It sounds like the contractor ought to be. . . Conrad: I think so. The applicant made some comment about staff giving ' the permission to go ahead and maybe that was the permit but I 'm curious about staff saying go ahead. Mrs. Pfankuch: Do you have a copy of the permit? A copy was sent to you. ' Hanson: I think it's the last page in your P acket. ' Wildermuth: The question is, did that predate the work or postdate it? The actual work. ' Mrs. Pfankuch: It did not postdate. . . Conrad: Steve, can I assume that when it says paid, 23918 that that means ' we gave, the applicant gave money which basically says we gave permission? Is that what it takes? I Planning Commission Meeting February 15 , 1989 - Page 5 Hanson: Well , that ' s where I 'm a little confused because normally on a permit there's someone who has signed off on it. I 've only got his front II sheet and I don' t know if there' s something signed on the back sheet or not. Conrad : I think by the time this goes to City Council , you should know a I little bit more and maybe Mr. Ashworth can fill us in a little bit on that. Any other comments? 1 Barbara Montgomery: My name is Barbara Montgomery and I live on Dakota Avenue about a block above where this development is. I guess I would just like to say, I 've lived there a very long time. My husband and I moved in in 1960 and I feel very protective of the area. Very protective of the lake. I loved it dearly and I 've watched and watched and watched as all of the growth has taken place. Somehow I just have the I feeling that perhaps some of the people who are moving in are not enough aware of the importance of keeping the lake clean and what's going to happen. Who wants to live around a dead lake full of dead fish? It does happen . It ' s happening to lots of the lakes . I 'd just like to make a I plea maybe for more public understanding. Maybe for more respect. Maybe for tougher policing of the ordinance. I guess that' s all I have to say but I really feel very strongly about the area and I think maybe that all of you do or you wouldn ' t be out here. Headla moved, Batzli seconded to close the public hearing. All voted in favor and the motion carried . The public hearing was closed . Headla: Mrs. Pfankuch, you indicated that the, I don't know what your exact words were. You got the go ahead from the Village. What exactly were you referring to? You got the go ahead from the Village. Mrs. Pfankuch: It 's in the permit . Have you seen the permit? May I show II you the permit? Headla : I 'm not sure if I 'm looking at the same thing you are. ' Mrs. Pfankuch: Our contractor, they stopped the work and they came down and looked at it and they issued this permit. My understanding is that the permit. Headla: Okay, it's the same thing. So you interpretted that as the go ahead? Mrs. Pfankuch: Yes. They didn' t say stop. Headla: You indicated here the reason you were doing it is to improve lot to lake. I see no mention on loosestrife at all but yet that tends to be the dominant reason now. , Mrs. Pfankuch: It' s always been the reason. Headla: I didn' t see it on the application. r • I I Planning Commission Meeting ' Fe'bruary 15, 1989 - Page 6 I ' Mrs. Pfankuch : I didn' t do the application so I don' t know but we had an early letter, in fact I think it predates that application, discussing the loosestrife. I don' t know about the chronology. I 've got some other information here. ' Headla : That' s fine. I guess I look at this the same way I started out the first of the year. I think we should not go for a lot of conditions ' on a permit. I think we' re loading down the staff. I see no reason why this even came before us until those 3 conditions that the staff recommended to approve, I see no reason at all why those conditions shouldn't be met before the Planning Commission even sees that. At the best, I think we ought to table it until they do get approval . I don' t know what the DNR is going to approve. Our conditions are a little more restrictive and I 'd like to see that before I 'd even consider approving ' this. That ' s all I have. Wildermuth : I 'm trying to find what our ordinance is . It should be under the boats and waterways section right? Hanson : It ' s under the wetlands section. ' Wildermuth: I see it. How and in what manner are we more restrictive than the DNR in terms of. . .structure? ' Hanson: I guess I 'm not necessarily sure that we' re more restrictive. I think we have a more detailed review and we require them to do a wetland alteration permit and when you do that , that ' s when you have the ' flexibility to allow what kind of alteration you do. Normally I think in this situation , if they had come in, I doubt you would have looked at an alteration other than allowing them to have a boardwalk out to the dock. I think that would be your normal approach to this situation, if it was undisturbed. Wildermuth: If that ' s the case, if that were the approach that we would ' have taken initially, where a wetland alteration permit would not really have been an issue, or according to the ordinance structure would have recommended a boardwalk, I think that their shoreline should be restored to it' s original state and if a boardwalk is desired by the property 1 owners, then I think that would be appropriate. I 'm surprised that Paul Burke in his original letter where he used some fairly strong language saying that the wetland alteration permit should definitely not be I granted, would come back and make what appears to be a relatively token requirement of these 15 by 30 triangles. Right across from that property was the Dolce property or adjacent to that and we. . . 1 Conrad: We didn't let them do anything. Wildermuth : The Planning Commission did not allow anything to be done I there. The City Council did not allow anything to be done there. I think if we go along with Paul ' s latest recommendation, we send a message to lakeshore owners that they can perform this work. They can alter the 11 wetland and come in for a permit after the fact and it ' s alright. I I Planning Commission Meeting II February 15, 1989 - Page 7 II further think that it ought to be very difficult for this contractor to II get an excavating permit in the City of Chanhassen in the future. That' s all I have. Batzli : I guess I 'd like to feel the way Jim does to some extent. I II look at that permit that was issued, which we don't really have all the facts on it but if I was a landowner and my contractor went and brought me back a permit like that, I 'd go ahead and do it. For us to say now, that II well you shouldn' t have done it and we don' t know under what circumstances we issued a permit, I think is a little bit critical on our part so I guess I'm not in a position to say they should or shouldn' t have been I able to do it and I 'm not going to cast stones at this point because I think to some extent they may have depended on that permit and I 'm not going to, I think there' s been kind of some allegations that they acted in bad faith and I 'm not willing to take that step right now. I Wildermuth: But there' s no indication the permit was granted. You pay the fee when you file the permit. From this we can ' t tell anything . I Batzli : I know and I can' t tell anything and that's why I 'm trying not to cast stones one way or another . But what I guess I 'd like to see happen is I would prefer at this point, without knowing additional facts, we' re I making a judgment when we' re in a position where we don ' t know all the facts. I assume that we' ve got these triangles here because there' s culverts running between the property lines? Or no? Where are the II culverts located? Bob Pfankuch: Not in all cases . II Mrs. Pfankuch : There' s one culvert between our property and the Frosts. Batzli : Okay. I would assume that this report was generated on where the II main runoff occurs between the properties and I 'd like to think that Burke is the expert and I 'd be, at this point, without knowing other facts, say go ahead and do it his way. I Conrad: Did the same contractor do the work on Colonial Grove? Hanson: I assume so. I don't know that for a fact. I Wildermuth: I don' t think so. Al Smith was the contractor on the Colonial Grove job. 1 Hanson: On the entire subdivision, is that what you' re talking about? Conrad: No. That's sort of before your time. I shouldn't have addressed 1 it to you. Wildermuth: This one looks like Harlan Johnson. Something Johnson. I Conrad: Didn' t we have some problems with Colonial Grove dumping, well , that's another story. I II • 1 IPlanning Commission Meeting February 15, 1989 - Page 8 I Ellson: I don' t have a whole lot new from what these gentlemen said . I 'm I pretty much in agreement. I 'm surprised that this compromise is what' s being offered by Mr . Burke , to tell you the truth. I would want it to be, go back to where it ' s supposed to be. I think it does again send a bad signal to people. If we put in laws to protect these things, the wildlife I and you want the nests to grow there and things like that and this can happen as easily as this did , it really disturbs me. Barbara's letter is dated on the 29th of June and there was a reply and yet the application I for this alteration permit isn' t done until January. I don' t know about that. I don't know why it wasn' t filed. If Barbara went on this and there was conversation, I think they're almost forced to the point of I making this come to a head and they were trying to avoid it as much as possible rather than facing it head on by letting them wait this long . I would see going back and putting the 50 feet back to where it is. I don' t even like the compromise of these little triangles. I don' t think that ' s I fair to the lake or fair to all the people that we have told you can not do this in the past . -Except you guys because you already did it and I realize that. I don' t think that 's fair to anybody else and to what Iwe're trying to preserve with these lakes. Emmings: I would like to know from the Pfankuchs and the Frosts whether or not they knew prior to doing any of this work that there may be DNR and I City or Fish and Wildlife regulations that would affect what you want to do with your property? We haven ' t heard you say whether you knew. . . I Bob Pfankuch: Can I comment again? Can I say something in addition to that? You've discussed a whole lot of things that some of the answers are available to you that were not presented on open discussion prior to. I I think this needs to be a give and take session. It' s not like we present our case and you guys talk about a lot of things and sometimes in ignorance because they haven ' t been discussed . It ' s how much do you present them with in this case? Number one, the contractor, Harlan I Johnson. Harlan was recommended to me because he does work on Lake Minnetonka. On the shoreline of Lake Minnetonka and works in the communities in Lake Minnetonka taking care of weeds, racking the lakeshore I so I assume that he knows something about taking care of lakes . I am not a lawyer. I am not an expert in the DNR or wetlands or on the city ordinances. I am a property owner . I have a responsibility. I thought I exercised that by hiring a contractor that does work on Lake Minnetonka which is supposedly the great lake of Minnesota, or at least for the Twin Cities. I hired Harlan Johnson. He came down and estimated the work. He talked to my neighbor Steve. We agreed on a price. Said, do you know I what you' re doing? You work on Lake Minnetonka, you must? Yes, no problem. I hate to say that' s ignorance and I'm still responsible and I agree with that. I still am and he's only my agent but it's not like you I have to go to the legislature to do .a little work on your lot is what I 'm thinking. He's the expert. I hired the expert, although still responsible. Harlan proceeds with the work. Somebody comes down and stops them. He goes down to the City Hall. Comes back that same day and Isaid it' s okay. I was working without a permit or whatever. The permit' s been granted and I 've been allowed to proceed and complete the work. And we can argue about how much was started and how much was left but it 's a Ivery clear point in fact, according to Harlan Johnson and according to the I Planning Commission Meeting February 15, 1989 - Page 9 documents , that the City allowed the work to proceed . Now I had talked to ' Barb Dacy shortly after I moved into this property. Granted, I 'm not a 20 year old landowner who has seen this grow from an urban , wonderful green reserve lake into an urban recreational lake. That's another argument. You may be a protectionists and you may think that we need to grow. I hate to bring that in but it is a fact of life. Now there are several other facts having to do with this. The sewer which runs , and it' s a sewer by the way, which runs down between my property and the Frosts, carries all of the garbage out of the city street directly into the lake. Tin cans, pop bottles, you name it. Several unmentionables flow into the lake until they' re impeded by the weeds and they build up and eventually shoves this whole nasty garbage out onto the lake. The fact that there' s 50 feet of almost impassable weeds makes it impossible to police and clean this wonderful Lotus Lake lakeshore. Of the trash that' s left by the ice 1 fishermen, meaning the bottoms of fish houses frozen into the ice and can' t be removed , which I personally removed this year after I had access to them. And the tin cans and the pop bottles and the tires and all the garbage because I 'm on the bad side of the lake which is where the wind blows so I get all the garbage. If I don ' t have access to that, I can hardly be expected to clean it although I was in up to my hips in the muck, this wonderful wetland, estolic soil or whatever it ' s called by the II DNR. Carrying all of this garbage sitting on the lakeshore. I mean it' s really a beautiful site. You ought to come down and see it. In fact, what I recommend is that you table this whole discussion until next August II and I 'd invite you all down on a Saturday to look at the lakeshore, that which has been improved by Frost and Pfankuch and that which has not been improved and you can decide what is the best thing for Lotus Lake. I 've I got to believe that you would be in our favor. I do an awful lot of work on that lakeshore. As far as wetlands are concerned , right now in this drought condition which may exist for another 50 years, there is now 50 feet of wetland out beyond the end of my 35 foot dock which in 3 weeks time takes loosestrife from seed to bloom and more seed. You just can't imagine what that ' s like. It' s totally destroyed . There was an article published in the Chanhassen Villager which talked about loosestrife in great detail , published last August and I brought copies along and highlighted the issues. It totally destroys the area for wildlife. The issue about wildlife is bunk. If you have loosestrife, you don' t have wildlife. I have personally picked up one of those clumps. I swear to god it weighed 150 pounds. This big nasty, mucky, floating mess on the shoreline and you just about can't destroy it. I put so little sod in, the City Planner said about a foot, if you look at the plot, I think that I the elevation is 6 inches. It's a half a foot over what the ordinary high water level is at the finish cobble wall , as it 's called. The rock wall that I put in. I believe that if the lake comes back to it's natural I level so it'd be at the top of the wall which will prevent the loosestrife from growing. The loosestrife grows right at the edge of the water and then it proceeds from there in both directions, is a totally unmatchable plan. It has been declared a noxious weed. The property owners are responsible for it' s removal and the only removal is a totally nonselective chemical called Rodeo which has to be sprayed on the plants. That means it kills all of the growing things. All. According to the II DNR, Hollandhorst , whoever he is, I believe it was from the DNR, once you do that, the next year, the only thing that grows on this valuable wetland 1 ' Planning Commission Meeting February 15, 1989 - Page 10 1 is loosestrife. That ' s the only thing that comes back. Would you like to ' pour Rodeo into Lotus Lake? Because the weed grows in the water, not in the dirt . That ' s the suggestion to take care of loosestrife. It is a noxious weed and it is the responsibility of property owners to remove it . In fact, the State has offered funds to help the property owners remove ' it. We didn't ask for that. We didn' t throw in 6 feet of fill like was done in cattail swamp on TH 101. I put in 6 inches of dirt only to level it. That was the only purpose of the fill was to level it so it could be ' sodded so it could be managed . Yet , the pictures , the colored pictures that were presented, shows that the loosestrife is continuing to grow up through the sod . I mean I didn' t bury it to the point where I killed it. I thought I did or I thought I would but at least I can mow it and keep it down. This stuff grows to 7 feet. If anybody' s been out to the Old Log Theater and looked around the grounds out there, you can see that that property has literally been taken over and destroyed by purple loosestrife. That is a very real hazard. It' s a hazard to Lotus Lake. It doesn ' t do anything- to the wildlife, the property owners, the lake users and it prevents me from cleaning up the garbage that rolls down the ' storm sewer from the street . Dead animals. I mean you name it, it ' s there. If you think that it ' s great for Lotus Lake, God help all of us . End of discussion. Any other questions? ' Conrad: Did that answer your question? Emmings: No. My question was whether or not you were aware before you ' hired this contractor to do work there that the work you were proposing to do might be subject to DNR regulations , City regulations or regulation by any other governmental entity? ' Bob Pfankuch : Steve, I started out by saying that I 'm not an attorney. I 'm not familiar with the DNR. I 'm not familiar with Chanhassen' s regulations regarding wetlands. I hired a contractor who does work on the ' lake. Does work on Lake Minnetonka and on Lotus Lake a fair amount. He probably never will again after this and with or without cause, that ' s for you to decide. The point is, I hired a lakeshore contractor who does a ' lot of work for governments around Lake Minnetonka . The natural assumption is that this person knows what he's doing. If you need a permit, if you need a wetlands alteration permit, a building permit, I mean when you hire a contractor you expect that person to be able to do ' those things. That' s a normal expectation and I carry the responsibility. I accept that but, isn' t that normal to expect that? Emmings: I guess it just doesn' t answer my question. Bob Pfankuch: The question is no, I was not aware that anything was ' required on Lotus Lake but I was aware that if it were required, it would be recognized by a contractor who does work on a lake in Minnesota in the Twin Cities area, Lake Minnetonka. ' Emmings : Is that true for the Frosts as well . That you were not aware that this would be regulated by any government at the time? 1 Planning Commission Meeting . I February 15, 1989 - Page 11 Steve Frost : The contractor came down and he got a permit and I assumed I that everything was okay. He got the permit. That was our understanding. Emmings: So again, then you' re telling us too that prior to the time the work was begun, and I 'm not talking about the time of the permit. Prior to I the time the work was begun, you were not aware that there were any governmental entity that might be regulating what it was you were going to do to your shoreline there? • Mrs. Pfankuch: We came and talked to Barbara before. I don' t know, a year before and we said we've got this loosestrife all over the shore. What can we do? And she said, well we're not sure what to do about it. That's what she said. She said, we' re not sure what to do with it. If you can get rid of it , get rid of it. That' s what she told us exactly. We didn't do anything until later when we decided to call Harlan because I we didn' t know what to do. She certainly didn' t say to us, you dasten touch the loosestrife because it has all these valuable properties and I resent the implications that we' re trying to do something underhanded. We're concerned about ecology also. Bob Pfankuch: I ' ll do nothing to the lakeshore, and you come down in August and look at it. You ' re going to not be happy. It's like a cesspool . Mrs. Pfankuch: It was just full of junk. Emmings: Mr. Frost didn' t answer my question. Steve Frost : I left it with the contractor to do what he knew he needed ' to do to get permits and anything that he had to do, that's your job. I 'm hiring you to do that. Emmings: And did you say that to him before he started his work? That if there were any necessary permits, he' ll get them or did you just assume he'd take care of it? Was it discussed at all with him? Steve Frost: . . .he would do that. That was part of his job. When I hired him, he's supposed to do that. ' Emmings: Did you get an estimate from him? Steve Frost: Yes . Emmings: Was it written? Steve Frost : I think it was yes. ' Emmings: Were there any items on there for permits or anything like that? Steve Frost : All he gave us was a total of the job I think. I Planning Commission Meeting February 15, 1989 - Page 12 Emmings: The application for the excavating permit, I don' t know, do you get an excavating permit when you fill something in as opposed to removing? Hanson: Yes , you would . In both cases . Emmings: The excavating permit is real vague. It' s hard to know what they' re going to do but I think there was a screw-up in our , it looks to 1 me like there was a screw-up in whoever might have issued this excavating permit because it clearly included a wetland . There should have been a wetland alteration permit which can only come from the City Council . Something got screwed up here. Who knows what but maybe you can find out ' more about it between now and the City Council , like Ladd suggested. The other thing , I wondered why we've got another property involved here. This Colonial Grove property and their property is affected by this plan of Fish and Wildlife to do some restoration here too but they' re not in front of us for a permit. Hanson: I became aware of that officially when Paul and I went down and looked at the property to see that that area had been altered too. I assume that it was done at the same time but I don ' t know that it was or not. ' Bob Pfankuch : It was . ' Emmings : It was all done at the same time by the same contractor? Bob Pfankuch : Yes . And it was mentioned in one of the complaints from ' the City in an earlier letter and then subsequently dropped for no stated reason other than the fact that probably 150 people belong to that Association . ' Emmings: Just comment wise, first of all , I have no doubt that the Pfankuchs and the Frosts did something that they thought was an improvement to their property and they don' t have any desire to hurt the ' lake. I 'm not even remotely suspicious of their motivation but the problem we have with doing nothing here is that it makes it, like Jim said, it becomes the smart thing to do to be dumb. To be unaware of regulations that are there to protect the lake. If I go out and do the I work, I get my hand slapped and maybe I have to sit and listen to people talk nasty about me but I wind up basically with what I wanted. Whereas if I go and apply to the City for a permit to do the same work, I 'm going I to be denied . So that really puts a premium on being a cowboy and that sure is not what we want to see. On the other hand, I don't think it will serve any purpose at all to punish these folks by making them return that I 50 feet to what it was if the people who are supposed to understand this thing from a technical point of view, like Burke, think that something can be done to get some value to the wetland back there such as this plan. Whether this is a reasonable plan or not, I have no way of knowing but I I would trust that he does so I guess I 'd be inclined to go along with the staff recommendation as a way to get the matter resolved. And I guess I 'd say to the Frosts and the Pfankuchs too, that we really see a lot more of this than we want to. We' re constantly seeing people coming in here • Planning Commission Meeting February 15, 1989 - Page 13 asking for wetland alteration permits after they've altered the wetlands II and it's real irritating to us . You' re presumed to know what city ordinances are and Mr . Pfankuch is absolutely right when he say it ' s his responsibility. It is. So I guess I 'd go along with the staff II recommendation but the only change that I 'd make is on number 3. If this is approved, that the applicants provide a schedule and I 'd just insert the words, acceptable to the City Staff, for completing restoration. Just so the schedule is a reasonable one. I guess I think that whatever DNR, the hoops that DNR and Fish and Wildlife make them jump through I guess would be punishment, if that's what it is, enough as far as I 'm concerned. That's all I have. Wildermuth : Just for a point of clarification. Did we actually issue a wetland, or I mean did we actually issue the excavating permit to this contractor? , Hanson: That ' s where -I 'm unclear whether it was or not. The only documentation I ' ve come across is what was in the packet . ' Wildermuth : Mr . Pfankuch said that the contractor came back and said that everything ' s alright. He applied , made the application. , Mrs. Pfankuch : They came down with the contractor and looked at the property. The City did. They were down there walking around with Harlan Johnson. Now we assumed that if they came down and they gave him this 11 permit, we had no reason to believe that. . . Wildermuth: It sounds like we' ve got an internal problem. ' Headla: We don' t know what the story is . Wildermuth : I 'm surprised that this excavating contractor with his , experience and working in wetlands and Minnesota, wouldn't know that he had to come in for a permit up front . But even after he did come in for the permit, if he did get a permit, an approved permit, apparently the City didn' t raise any objection. Emmings: He may be savy enough to know that it does pay to be a cowboy. ' Headla: There are very successful men in our company who's motto was, you' re better off going ahead and do what you want to do and get it done, beg forgiveness and get your hand slapped than get prior approval. Boy, he got a lot of stuff done. I see the same thing here. Emmings: I 've given that as advice to clients because it does work. I don' t know what you do as a City to stop it but here we had the perfect opportunity to stop it. We discovered it was going on and stopped it and then let it continue. That' s our fault. That's the City' s fault, it seems to me. Mrs. Pfankuch: We heard a lot of talk about wetlands after the fact also. We didn' t even know this was a wetland. We tried to mow it. We'd go down I there, it wasn't a swamp. It was just clumps of loosestrife growing. Now • I Planning Commission Meeting February 15, 1989 - Page 14 we realize it' s an exotic wetland but . . . ' Conrad: I hate to be an educater and I don' t like doing that in this situation but I think the things that you see being a litter in the lake are minor compared to what a wetland does. Again, I 'm not going to bore ' you with details here but a wetland is really taking the chemicals out of the stuff running into the lake. The tires and some of the stuff that you see, that' s fine and it' s disgusting and we agree. ' Bob Pfankuch: How about the Rodeo sprayed into the lake? Conrad : Rodeo would not be acceptable in my mind but purple loosestrife ' is better than destroying all kinds of filtration. Grass is not a filtration system. It doesn' t do the job. Wetlands, the thing with purple loosestrife is it chokes out the cattails and now the cattails don ' t have a chance to grow. So if you showed me how you are restoring it so the cattails could grow, I could understand it but you haven' t done it . The grass is not a filtration. ' Mrs. Pfankuch: I don't know if that can be. Conrad : I don' t know that it can be done either but what you' re telling me is not a solution to the problem. Bob Pfankuch : You need to come down and look at it. ' Conrad: I see it fairly frequently and I 'd be happy to. Again, I 'm not trying to be an educater , well I am. I am. ' Susan Conrad: I just want to make a comment about the education. I don' t know how long you ' ve lived on Lotus Lake but every year , at least once a year, a newsletter goes to every homeowner on the lake educating about the value of wetlands. Also, in the newspaper , the Lotus Lake Association has published articles about wetland value and about the control purple loosestrife and the value of loosestrife so we have not only, as an ' Association, sent out letters but we have held meetings and talked and educated and we have done that for at least 5 years. So not being aware of wetlands and not having them identified, unless you just moved onto the lake. Wetland identification has been available to all of us and sent to ' all of us on Lotus Lake and all of the city but the Lotus Lake Homeowners Association has gotten that information to their homeowners. And as far , I have just one more point, as far as the DNR recommending taking the ' wetland back to it's original state. My experience, which most of you know has been years with the DNR, has been that their jurisdiction ends at the high water mark so they will not even venture to recommend anything beyond that. I would ask the Planning Commission to invite the Corps of Engineers in to tell you what the value is beyond that because they are the only agency I 've run across that can give you a total picture and doesn ' t get hung up in jurisdictions. They do have a jurisdiction ending but they are a recommending body rather than permitting in many cases. Fish and Wildlife does that even better so they can tell you the whole picture and I 'm sure that's why the DNR is saying to renovate a portion of it. They can only talk to the portion that they're responsible for. 1 Planning Commission Meeting February 15, 1989 - Page 15 Conrad : I want to make a few comments without being redundant for other comments. One, it looks like there was an internal problem and I really would like, I really do need staff to tell us what happened. The comments from the applicants are valid. If we don' t catch it, if our staff doesn' t II look at the documents , these are charted wetlands. It ' s not that they' re not charted. They are so it looks like we screwed up and I need staff to review that . And staff to review it to tell us how they' re going to prevent that. I just doesn' t make sense to me. Secondly, I 'm not sure whether the applicants knew what they were doing or not and I 'm real concerned with the contractor and I guess we should, I 'd also like to have staff tell us what they would recommend that we do to the contractor who 11 was doing this. Anybody who is in the area knows that Chanhassen is a tough ordinance, period. And we do that for a purpose because we have a lot of lakes and we have a lot of runoff and a lot of building . I Contractors should know so I guess Steve, I 'd like to have staff review to us what we should do w-ith a contractor' s that more than likely knows what he's doing . Third , I agree. I don' t think we need to restore the wetland II totally. We can probably do with what Mr. Burke is recommending here and get some value out of it and I would hope that we could agree. I think my biggest concern is we really have been strict with your neighbors and your neighbors care. They care a whole lot. I think we don't want to set an I example, for whatever reasons , we just don' t want to set an example that it can be done. We want to set an example that people still care about this and I think you do. I guess I ' ll take Mr . Burke' s recommendation as II being valid and acceptable. On the other hand, I 'm not convinced Steve that we've really looked at it from our ordinance standpoint. Again, it 's an easy way of looking at this thing and saying, well , this other agency II who controls everything above the high water mark says this but I want you to be real confident that our ordinance, that we haven' t set an example for another situation. If this is fine, this takes care of the problem, I 'm okay with that. If what Mr. Burke says is going to filter the runoff II that's coming down between the houses and get the maximum value, that' s okay with me but I want staff to tall us and if you need help from the Corps of Engineers or whoever , I think we' ll ask them that. The question II in my mind is whether we issue the permit. I 'm really hung up and the really philosophic thing is that a wetland alteration permit which has been already, the wetland' s been filled in. We issue a permit to restore it. I don' t know. I don' t know how to deal with that one. Those are my II comments. I 'd take a motion from somebody. Emmings: I'm going to move that the Planning Commission recommend I approval of the Wetland Alteration Permit #88-13 subject to the conditions that are set forth in the staff report with the addition that I mentioned in number 3 where the applicants provide a schedule acceptable to the City Staff for completing restoration. Batzli: I ' ll second it. What do we do with Colonial Grove? Conrad: That' s another comment. I think they should be in here. Emmings: Well, we've got people here who've made an application. I think II that's not part of this. I time somehow we've got to tell them they've • Planning Commission Meeting February 15, 1989 - Page 16 got to come in and apply for a wetland alteration permit too. Thomas Gilman: And they can get their hand slapped too. Emmings: Well , yes . I guess it' s not my job to beat people up when they screw up. Especially when the City seems to have screwed up at the same time. Conrad : I think it is a separate issue but I think we do want to. Emmings moved, Batzli g , tzl seconded that the Planning Commission recommend ' approval of Wetland Alteration Permit #88-13 subject to the following conditions: 1. Prior to City Council consideration , the applicants agree to ' mitigation plans and requirements of Minnesota Department of Natural Resources and U. S. Fish and Wildlife Service. ' 2. Applicants receive permits from Minnesota DNR. 3. Applicants provide a schedule acceptable to the City Staff for completing restoration. Emmings, Wildermuth and Batzli voted in favor of the motion. Ellson, Headla, and Conrad voted in opposition to the motion and the motion failed with a tie vote of 3 to 3. ' Ellson: I move the Planning Commission recommend denial of the Wetland Alteration Permit #88-13. Batzli : I ' ll second it for discussion purposes. What good is that going ' to do? Wildermuth : That ' s just the converse of what we just voted on. ' Ellson: I want it to go forward to the City Council with something but I want them to hash out the details. Like you said, it will be on record that they got the okay to do it. I don't want that to be there. ' Conrad : But the main reason I voted against Steve' s motion is because he talked about, we' re really reacting to what the DNR said and I don't know that we' re reacting to what our ordinance says. Wildermuth: Our ordinance, I wasn' t too proud of our ordinance when I just read it. Emmings: My comment there Ladd would be. Our ordinance tells us what to do when somebody comes in and applies for the permit prior to doing the work. We got a problem with our ordinance maybe when people come in and say, I 've already done the work and now I 'm here to get the permit. Maybe there should be a provision in there. I'm not even clear why they applied 1 • Planning Commission Meeting . 1 February 15, 1989 - Page 17 for a permit. 1 Conrad : Because the staff has been asking them to. Emmings: But what if they just said, no, thank you? 1 Conrad : Then we'd have to legally take care of that. Emmings: That got them in front of us. Their application got them in front of us and then I guess , I don' t know. I don' t think our ordinance tells us, gives us much guidance in this case. 1 Conrad : It doesn' t. Headla : Does the ordinance give you any guidance if they don' t follow it? Or the best we could help for is that , I think Jim pointed out that you judge it from how would you treat other people if they came in with the permit? IF it 's a boardwalk, the worse scenario for these people would be II then that they'd have to go back to that and I don' t believe in penalizing them like that. But to me that would be one way that does it. Emmings: I suppose the other thing you can do here too, if you want to send a real clear message, the City Council I guess could ask, what they have done there may well be a criminal offense under the ordinance and they could ask the City Attorney to review it for prosecution. That would II certainly get people' s attention. But again, that' s not our function here. Conrad : We should be doing what is best , what the ordinance intends and that doesn' t set a precedent for future situations. That' s what I want to accomplish. 1 Emmings: I agree and it seems to me, if they come in and they' ve got a wetland there and they say we want to modify it, then we look at our ordinance and we say no, because we've done that before right next to them. We say, no you can' t do that. You' re going to just have to live with your loosestrife and put out a boardwalk and that's that. Wildermuth: But the contractor came in and got a permit approved . 1 Ellson: But it wasn' t signed. Wildermuth: But if you read this letter from Barbara real carefully, towards the back of your packet. Read this letter from Barbara real carefully. Your contractor , Mr . Johnson, promptly complied with our requests to submit plans and the needed information for issuance of a grading permit. It implies that the grading permit was granted because she goes on to say, however, it has come to our attention that the area in 111 which you conducted the grading may have contained wetland vegetation. So apparently, when whoever it was from the City went down there with the contractor to look at this thing, somebody from the City agreed to the permit. The implication is that the permit was granted and Mr. Pfankuch said that he had a permit . So you can' t fault the property owner . 1 I Planning Commission Meeting February 15, 1989 - Page 18 Emmings : We've got a wetland , we want to alter it . We say no. I think ' they' re coming in at a point where, what' s there? They' ve got an altered wetland . They' ve removed the wetland or destroyed it and we' ve got to say, what are we going to do now? Given that as the baseline, it all depends on what you want to pick as a baseline. They' re coming in and saying , here's what we've got now and we've got a plan here, again, I have no way of judging it ' s efficacy as restoring wherever the properties are, the wetland you want to keep, but at least there' s somebody here who says ' that this will do the job to get it back to at least some sort of reasonable . . . Wildermuth: There' s no question in my mind how I'd vote if somebody were ' coming in for a permit and no work had been done. No question at all . But I think there' s an event here that took place that it ' s not a black and white issue. ' Emmings: And I think we' ve got dirty hands. ' Batzli : Well I 'm glad the two people that voted for the motion are in agreement now. Emmings : You voted for it too . Batzli. : Yes , but I already agreed with you two. ' Wildermuth : Yes , but I didn' t agree with you to begin with. Conrad: Dave, your disagreement stems from what? How is somebody going to swing your vote? Headla : I don ' t believe that it should be denied . I really believe it should be tabled until we find out what in the world did we really tell these people. I think staff can tell us . I want to see what the DNR has to say. I have no idea what they' re going to say or the other appropriate parties. Then I think the people ought to be able to look at that and ' then whatever is recommended, then come in with a schedule. Then we can act on it. We've got something documented. Until that, I don' t think we ought to touch it. IConrad : This is under discussion of a motion for denial right? Okay. That's not bad Dave. If we don't know. We can vote on it, we can kill it or she can withdraw it if she so chooses but I think you're absolutely I right. We don't know what staff did. Steve hasn' t done a good job of researching the staff on this one and I think even whether, he can do it for City Council or he can do it for us. We might as well hear what it I is. We've got the ordinance and we can help that ordinance. We can help improve it if we understand how it doesn't get enforced. It's probably good that he bring back a scenario of how this happened. But I also think I 'd like, other comments that you said. I 'd like staff, things that I come in at the last second just bothers me. Staff hasn' t reviewed this and reviewed it to see how our ordinance pertains, which is my problem. My biggest problem. It' s coming in today and staff hasn' t told me how our ordinance gets impacted by the recommendation so I guess there' s some • Planning Commission Meeting February 15, 1989 - Page 19 validity for tabling it other than the fact that we have to bring it back I in. That' s a real pain. I hate to do that to anybody but. . . Bob Pfankuch : I asked for you to table it for 6 months . I Conrad: Well , 6 months of water going in, if it' s bad water, is probably not worth the risk but I think. . . Bob Pfankuch: . . .water that goes into that lake? Conrad : A whole bunch of bad water goes into the lake and we probably spend more of our lives up here looking at the bad water than we care to think about . Bob Pfankuch : May I ask that the City sewer from the street be removed? ' Not be allowed to drain into it . Wildermuth: I guess if it ' s any comfort, in a new subdivision that ' wouldn' t happen because there would have to be some kind of a ponding area but I don ' t think you want a ponding area in your backyard before it goes into the lake do you? ' Batzli : I think the City might want to look into a catch basin or a screen or some sort of trap if that's in fact what' s draining into the lake at that point from a storm sewer . Conrad: Where is all the Colonial Grove, being that that wetland is being used up by a contractor , where is that water going Steve? Is it coming ' between? Hanson: I have no idea . ' Conrad : Can you find that out because that just fascinates me. Most of that's coming in from Eden Prairie. Most of that water is coming from under TH 101 going into the wetland . I 'm just real curious if it ' s going I to the subdivision to the north. Wildermuth: It' s going into all the basements around it. Conrad: But anyway, Annette, you've got a motion. Ellson: I withdraw the motion. Conrad: Do you want to or we can vote on it? Ellson: No, I'd rather withdraw it and Dave, why don' t you do yours. Conrad: Do you want to withdraw your second Brian? ' Batzli : Sure. Headla : I would like to make a motion that we table this. I 'd like to ' get better definition of what direction the Village really gave these I II Planning Commission Meeting February 15, 1989 - Page 20 people. If we really gave them the wrong direction, I think we' ve got to look at it a lot different and maybe the City has to suffer the ' consequence. I ' d like to understand , see what the DNR is going to recommend and then have our applicans look at it and submit some type of schedule and I think at that time the Colonial Grove people should be part ' of this. Wi.ldermuth : Second . ' Headla moved , Wildermuth seconded to table action on Wetland Alteration Permit #88-13 so staff can research what happened at the City level . To ' find out what DNR is going to recommend and then that the applicants submit a schedule, which the Colonial Grove people should be included with. All voted in favor of the motion to table and the motion carried . Conrad: Steve, when do you think this will come back? Any idea? A couple of weeks? ' Hanson: I doubt it. I don' t believe I ' ll have a response from DNR in that period of time first of all . Secondly, I 'm not sure what type of ' problems I 'm run into trying to research it because I think I 'm going to have to do some of that by phone calls with previous staff because I don' t believe there ' s anything in the file. REQUEST FOR SITE PLAN APPROVAL FOR PARKING AND SITE IMPROVEMENTS, ON PROPERTY ZONED CBD, CENTRAL BUSINESS DISTRICT AND LOCATED JUST EAST OF 480 ' WEST 78TH STREET, CHANHASSEN PROFESSIONAL BUIDLING - PHASE I, ARVID ELNESS ARCHITECTS , INC. Steve Hanson presented the staff report. ' Conrad: Brad, what do you think? ' Brad Johnson: We've given them some modifications that are minor , from our point of view. You've got to remember, this is being designed by the City for us . That ' s why he does the presentation. ' Conrad: You can be critical now. Brad Johnson: I think it will work fine. He' s gotten our comments. It ' looks like most of them have been put in there. Like I said, it's pretty close to what we were requiring . In fact, the traffic guys have to look at it. . . You should note that we have taken 15 feet off the back of the I south side of the apartment building and put it into the parking lot. That has been done as part of your previous approval of the site plan for the apartment building . That' s why this original sidewalk had wound around here. It was getting too close to the rooms. You know, for a public walk right next to somebody' s bedroom is not a good idea so it was pulled over to the right. We' re really excited about this whole project because it just has a real nice look to it. The way it all comes • 11 1 A ,.._ STATE OF DEPARTMENT OF NATURAL RESOURCES I PHONE NO. 296-7523 METRO REGION DIVISION OF WATERS 1200 WARNER RD. , ST. PAUL, MN. 55106 FILE NO I February 2 , 1989 II Mr. Stephen Hanson, Planning Dir ector II City of Chanhassen 690 Coulter Drive, P.O. Box 147 II Chanhassen, Minnesota 55317 Dear Mr. Hanson: I RE: PLANNING CASE 88-13 WAP, WETLAND ALTERATION, LOTUS LAKE ( 10-6) Thank you for the opportunity to review and comment I 88-13 WAP regarding filling and sodding of a ono application (10-6P) . Minnesota Rules 6115. 0190 prohibit g portion a Lotus r fill II below the ordinary high water (OHW) levation excavation tlanyorstate protected water for development purposes. Lotus Lake, a state protected basin, has an established OHW II elevation of 896. 3 feet (NGVD, 1929) . The plans submitted with the permit application indicate the proposed activities will include filling/sodding below this protection elevation. Filling of this II nature is inconsistent with Minnesota Rules and should not be permitted. Again, filling and sodding below the OHW elevation is not allowed, II and permit application 88-13 WAP should be denied. 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"7 I..-••.•. -41-.• ---,dep.,.lir___ --vir-„,..__ ,,:-.-, -c.. ...--____-,*__- - - __ ....V- ..._ ...,... ..I!' ■-- '''''''- -am-,....._ _.-car_--. I I I p I I I I I • t 7. < l �_: N , ✓ I I T' K__` vs 1 _ �r 4 j C t I. ii ail 4, `s{ w X -- i " Si-S4 1 � SA ; 4 V •\",1 ' s.��. K I- Wit } le. 1.}`fc't I - .- . 04P1111116.' i`t ,. V �.x : Y . te, I { I tw ie ..aya \ d I _ -... .A.�-•••- -t • I I I I fi0 I I I , , , January 31, 1990 Stephen Frost 80 Sandy Hook Rd Chanhassen, PAN 55317 Jo Ann Olsen, Senior Planner City of Chanhassen 690 Coultier Drive Chanhassen, MN 55317 Dear Vs. Olsen, On January 9, 1989 I submitted to the City of Chanhassen an application for a wetland alteration permit. Included with the application were: ' 1. a 825.00 fee 2. 26 copies of the site plan 3. a list of all property owners within 500 feet of my property. (This was obtained from Carver County Abstract & Title Company, Chaska, at a cost to me of 5100.50) The Chanhassen Planning Commission met on Wednesday, February 15, 1989, where m- application for the wetland alteration permit was considered by the commission. After much discussion the planning Commission voted to table my application, to ' be considered again at a future date upon a determination by the Minnesota T)eoart- ment of Natural Resources of exactly what extent of fill needed to be removed from my shoreline to satisfy their requirements. The DNR has now made their ' final determination, so I request at this time that the Planning Commission again consider my original application for a wetland alteration permit which was tabled at their February 15, 1989 meeting. In addition to the information submitted with my application for a wetland alteration permit dated January 9, 1989, I submit the following additional infor- mation: ' 1. a site survey showing the area of fill to be removed, as required by the DNR. ' 2. the Lotus Lake Restoration chart, as prepared by the DNR. Once the City of Chanhassen issues me a wetland alteration permit, I will be able ' to proceed to restore my shoreline to meet the guidelines established by the City of Chanhassen and the DNR wetland ordinances. Sincerely, 111 Stephen Frost JAN 311993 WU OF CHANHASSEN 1 .d''�a �' '�� Nik. °* o1o,vd Off/ )J ors / / O 6 °, o' `' lti ,br ftb - a 00' 40 I ti/V 'I13 l v/ •4, . •� p • � % 9O. v � �� SI, -' • lti 22 •4 •• ; /.\ ` •` b,;i.c,-6 f£ ?� %(Ts io ) `,n' -..-/1/„.,, �/ . l`0 rQ.�_sr6/A 4QO _ _ "*"6-‘o/s Y {ryD1 y 7•f1 x \ %c . p r • O �. �� !' l . . / ,,a) ` � ►�' / �., _ -d- u 3 / //�%''4.i 1"" f \-1 ,4' ( \ . 4.. 01,.'s , \ 3 \ 4 1" v /• / • \;\:: 1\ �\ ,� �hv 1.. 0' 'A ►ti �i a6 2 g 4 � /C�,� Lp I ,I. q C►61 4/ � IVg� h+. Pi" O/ O/ iLIt,\ Z • . • s 2s � � 92 . 1 , SO ' S mss- rn , `o, l /'1,,Sp,- ' L S N , P ou Jive '\ . io" \ ;�\J � � /` \ . n, \ ‘J c -;; ..._„_ ,, Nci r4 r MN — MO MO I= MN — I MN MN MN NM I — — NM IMEn = INE EN Ns ma sis wm um I No N = NIN mik � am = um ti if- Val--60 5 5 it-G - 99 TYPICAL CROSS - SECTION (EXAG- E RATEc -- NOT TO SCALE) ORDINARY NLGH-wATFR ELEVATION % 3' NATURAL CTROUNO ELI VATZON moulmwer FILL MATERIAL To BE REMOVED LOTUS LAKE RESTORATION f A . February 13 , 1990 City of Chanhassen 690 Coulter Drive Chanhassen , MN 55317 Attn: Ms . Jo Anne Olsen Senior Planner Re: Application for Wetland Permit , Request for Survey ' Dear Ms . Olsen : We hae not been able to meet your timetable for a survey of our property . Our understanding with Pat Lynch of the DNR is that the work is to be done in the spring . We will make ever, effort to comply with the DNR in a timely fashion . With respect to the survey . the access to a dock and the the 01-W line in relation to the storm sewer/fill in the ten 'root easement were all to be finalized this Sp- ing . M . De:ember 1 , 1969 discussion and agreement with Fat Lynch to " restore ' the area included a final review early this spr1n,? . I am concerned about whether a straight shoreline between the 4^n markers across approximately 175 plus feet of Lotus Lake sh.,reline is in the best interests of anyone . Our intention was to crcide a more natural curving shore by melding the line into the filled area in the easement . ' I ha; e enclosed a list of documents from my file . Please advise us which-- if any--of these documents will be required for the survey or application . I hope you will be able to use the list of property owners which we supplied for the first application last February. Yours truly, Mr. and Mrs . Robert D. Pfankuch k 100 Sandy Hook Road la_, Chanhassen , MN 55317-9580 errc : ,. ���, . __v cc: Steve Frost, Dr . Charles Hirt and Pat Lynch FEB 1 g 1999 CITY OF CHANHASSEN I I . ■ ' Wetland Alteration Permit Application Description of properties in\olved: Lot 1 , Block 1, Colonial Grose at Lotus Lake, 2nd Addition *Lot 2 ., „ *Outlot A. " *Properties not applied for, but directly related to this application. File documents: ' 1. June 12, 1987 MN Dept. of Agriculture Press Release "Puri.le Loosestrife is a Noxious Weed" ' 2. Oct l;er 28, 1987 Mnnntsota Dept . of Natural Resources "Control and Eradication of Purple Loosestrife" 3. n eml,t•r , 298- Cit of Chanhassen Letter ' "Lear Propert; Caner ' General mailing-Information on purple loosestrife ' control and eradication, enclosed MN DNR information on same. 4 . Jun_ 1C, 1988 ' Cit of Chanhassen Application for Excavating Permit 5. June 29. 1988 ' City of Chanhassen Letter Notice to the effect: ". . .the city stopped work until the appropiate permit was obtained. Your contractor. . . ' promptly complied with our request to submit plans and the needed information for issuance of a grading permit. " ' 6. June 30, 1988 MN DNR Report of Field Investigator ' 7. June 30, 1988 Pfankuch/Frost letter to City of Chanhassen Response to City letter of June 29, 1988 II - 1 - 8. August 4, 1988 Chanhassen Villager ' Purple Loosestrife: Beautiful Deadly Weed Threatens Lakes, Wildlife Habitat "Lotus Lake in Chanhassen is just surrounded by it," ' according to Jay Rendall, MN DNR loosestrife coordinator. Article says further, that loosestrife has no natural enemies, kills wetlands and pushes out wildlife. RODEO "is real useful. . .major dr•awb-ack. . .non-selective. . . it kills everything. . .next year the area comes back solid loosestrife." Tom Hollenhorst, Hennepin Counts Parks loosestrife coor•dinatoi . 9. Au_usi 24. 1988 C i t-: of Chanhassen Letter J. C,] --r• to Paul Burke, Fish and Wildlife Sel \, ice h uuest comment on lot ol.uer•s filling and sodding to I em( -f pi ei ent pui ple loosestrife infestation. ' 10. Au_mu t 2T. . 198E (i t of Chanhassen Letter J . Olsen, rnformiii_ Messrs. Pfankuch/Frost of letter to F. Bui 1.-•, le his i et ieti of the issues. 11 . .0 ust 21 1988 L .S. Dept . of the Interior, Fish and Wildlife Serxice St . Paul , MN P. Burke Letter to City of Chanhassen Re: Wetlands, purple loosestrife, etc. Fill in not proper. . . 12. November 8, 1988 City of Chanhassen Letter J. Olsen to Pfankuch/Frost ..must proceed with application for a wetlands alteration permit." 13. December 16, 1988 Carver County Abstract and Title Co. ,Inc. List of persons. . .owners. . .within 500 feet. . . . 14. December 19, 1988 In- oice for Abstract S100.50 - 2 - 1 II • . 13. January 19, 1989 Notice of Public Hearing To be held on February 1 , 1989 Wetland Altei ation Permit 16. Sometime Prior to Feb. 1, 1989 ' Notice of Change of aaole to Feb. 15, 1989 17. February 2, 1989 MN DNR, Pat Lynch Letter to Stephen Hanson, Planning Director ' City of Chanhassen Re: Reviek of application of Case 88013 WAP 18. Febi uar ; 13, 198: M\ LNn . Rent LoI:kesmne Letter Notice of \ iolation of Minnesota Statutes ' 8 : tnar:thorized Fill , Lotus Lake 19. Februar\ 15, 1989 Chanhassen Planning Commission Agenda IFebruary 1" 1989 City of Chanhassen ' Staff Report Case 88-13 WAP 21 . March 1:,, 1987 ' MN D'NR, Pat Lynch Letter Lynch i.ritrs as foliAs-ut to phone call of March 14, 1989. He feels it is best to table the issue until ' later this Spring. 22. December 6, 1989 MN DNR Pat Lynch Letter Lynch confirms another telephone conversation. It is ' agreed the fill is to be removed. No DNR permits will be required; may use natural rock riprap in accordance with brochure which was enclosed. 23. December 11, 1989 City of Chanhassen J. Olsen Letter ' Request for survey by January 8 or January 22, 1990. (Letter incorrectly states that the DNR says Pfankuch has agreed to complete restoration by May 1, 1990. ) ' - 3 - II 1 24. Januar. 25, 1990 City of Chanhassen, J. Olsen Letter Request information within 10 dais re permit. 25. February 13, 1990 Pfankuch letter to J. Olsen enclosing this list. 4 _ 1 I • '1 ........ .. .00‘...di • .:. . ivloilt. 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AND I A650G/A7- 5 , LAND .5 v,eir 8 p KE 4.0 fi ge, o•40 10 a11 tee To .DP • ,-20 o14w. 1 rl 0 S>• 9s y ,„•E.-7- 4,A r ,,fr 8 r 4-3. . yio • , as,„,, 17 ' (2•.4‘v 4'q b it\C -, .44,�E 1h )�D�e4/rvAGE �) 263? 9 Sig rrFa -�t I %" o. 7avo vnurr 1 , �.� sr 2 6S� .y N6 o I EASEMENT :..v. 2 T ■ 9 \/ b -p s �� \ CIP it .� - f � s \ \ 4/•o �Z✓?5 73.25 9`? �y 4` IV A /7275'` '• do \ t1729,'`' '� /bb•5� d•19.49,� .\G \�NO .-1 M ?S�c N�•/72 � > `' R /9/.5/ › �../ t) .0 .ti a _., zi.w.c • - ' A NI L , 34 ,P- . �^ ' ,..--z.74-, to b i-% ..147 18. . l 041 nisi :� , dry. '' ' �'� N 109 1'.ss 7� 22 2. r r __ ACA 5 NIE CIF3EC. / ,7'//6, R23 . b ' N75• Qt �` / 3 �$� \�� ,,,,. �o ll V ' 3 /NE 4`5K-.I2 T.//6,Q 23��—2 �� 1 1 as. /oJ � ° p''O\ -spZ3 r �7 � I. �- i N��.o7'E � N�8 ���s6�� ,4-3 �r _ is _ t y, , i 1 oo /25.08.Q9 - - N B/ l8 t '' q s ��Q 3 'Q; ; 120 $2M, Oj l' 1"z, ∎v 3 ,7 , t„ v 14 07 C O O I I . I - i COLONIAL GROVE AT 1 1DARELLE AND ,q SS O /AT,�S , LAND .5v 16 / celmeggfee Est ",„,,,, 20 i DP4/ -4t7 -- ,4‘‘,0-• 41 Irr 4,,,, ,y • 140 4, , 4 4% 17-7 1,,;(4. ' I 1- . . * /4'.4c., f/ ,, NAG i 1 63. 9 S/9 ''�'� 4/ �/ ? �Y 2 r 0 ,,,, itt \ ,-�; . uncrrr / �� R2,2 • 6S �∎ ' ,r ■ 49 • MEN i . .?� / ■%....... • X 45, i Z \ < \9�� 2. I e O h .a � � e p,o �, 1 TWT ■ '1+4 ' ,,IXik' ..-. - . i ,,,,,s, \ , , \/, q . ,e.,,c? I ...• � s` \ \ 4/t N\ 75 73.25 9`` �. 4. N if 'es'`. �; ' its I. ,�. 5 "•,� 2 lin v ' N l09 — '`ss 2� 2 I :?r�J �7/�`✓ 92.18 ' ' ' _\ ----. ._'o .� -1' i-.h- S■ 4. • V '.)=. n /�°oo l y 1 % �\ /, �P. S �G �, �3 s.N 75.07 $� t \v 3 a� PI- s YE OF Ste. / ,T.//6, R23. '- O Q E Cr -l2,T.l/6,R' 23.��—� 8— ■ , 128.i9'E 6Nt•O'R�.s' • � '�o / ' 4 r� N75 °� . NE * s I i o��E ! 4 / g /25.08 --so- •-`r,A I Iv \ Ng' Z � 1g N8�•i8`E �a I 1. 1. 3 v, (N 1 ' /20.82',-/ri 070 7•o V ti 1 �� R { 'Ti> it-6 -9g TYPICAL CROSS - SECTION (EXAG- ERATED-- NOT TO SCALE) ORDINARY HIC.TH-WATER ELEVATION g96. 3' , ' 1 j I I � / • I . NATURAL CrRouND ELE VATtoN . FELL M ATE RrAL TO 6L REMOVED LOTUS LAKE RESTORATION • Arp — MN — ME r • — ! ME ME ME WE • ME M — WE — WM STATE OF I ,..7M7 SESOTA DEPARTMENT OF NATURAL RESOURCES 1990 „ METRO REGION WATERS - 1200 WARNER ROAD, ST. PAUL, MN 55106 PHONE N0. 296-7523 FILE NO. March 5, 1990 , Ms. JoAnn Olsen City of Chanhassen ' 690 Coulter Drive Chanhassen, MN 55317 ' Dear Ms. Olsen : RE: STEPHEN FROST/BOB PFANKUCH, WETLAND ALTERATION, LOTUS LAKE (10-6P) , CITY OF CHANHASSEN, CARVER COUNTY ' The DNR Division of Waters understands the proposed alterations involve the removal of fill illegally placed below the ordinary high ' water elevation of 896.3' (NGVD, 1929) for Lotus Lake. Since the Department is requiring restoration of this area, we support issuing the permit for the wetland alterations proposed by Stephen Frost and Bob Pfankuch . Filling this area was a violation of Minnesota Statutes, Chapter 105.42. Thank you for the opportunity to comment. If you have any questions, please call me at 296-7523. Sincerely, ' Ceil Strauss Area Hydrologist C254:kap 1 cc: V89-6055 file 1 1 MAR 0 6 1:J J CITY. OF CHANHASSEN 4( 1 AN EQUAL OPPORTUNITY EMPLOYER CHANHASSEN PLANNING COMMISSION REGULAR MEETING FEBRUARY 21, 1990 Chairman Conrad called the meeting to order at 7: 35 p.m. . ' MEMBERS PRESENT: Tim Erhart, Steve Em ings, Annette Ellson and Ladd Conr MEMBERS ABSENT: Brian Batzli , Jim Wildermuth and Joan Ahrens STAFF PRESENT: Paul Krauss, Director of Planning and Jo Ann Olsen, Senioll Planner PUBLIC HEARING: WETLAND ALTERATION PERMIT TO FILL IN A PORTION OF A CLASS A WETLAND LOCAT ON PROPERTY ZONED RSF AND LOCATED AT 7007 CHEYENNE TRAIL, CHARLES HIRT, LOTUS LAKE BETTERMENT ASSOCIATION. Public Present: Name ' Al & Carol Anderson Jo Ann Olsen presented the staff report. Chairman Conrad called the public hearing to order. Al Anderson: Is this a hearing that you're proposing, I want to understa this better. The City or the Council or this committee is proposing that the only changes to be made out there is the enlargement of the restoration of this area to marshland. That's the proposal? Conrad: The proposal is to restore it back to what it originally was, I yeah. And then to allow a boardwalk through that that gives access to the dock. Any other comments? Erhart moved , Emmings seconded to close the public hearing. All voted in favor and the motion carried. The public hearing was closed. 1 Erhart: Do you have any idea in terms of, in the first place, the 3 lot owners, did they work together in filling this thing in? Is that the way 1 it was? Olsen: I know that the 2 lot owners did and it appeared that the outlot, the homeowner's association also when it was happening did it along with that. I'm not exactly sure if they did it all together. It became apparent that that had also been filled. Erhart: So there's 2 homes. On the beachlot, what was it? If that was a' marsh, how did they use it as a beachlot area? Olsen: How they had access to the dock? #141 I 1 ' planning Commission Meeting February 21, 1990 - Page 2 ' Erhart: The dock was out through the cattails so how did they get out through it? Was there a boardwalk? ' Olsen: There must have been some sort of dock. Again, what exactly happened before that. . . Erhart: Were the other 2 docks there before they built also? How did they get out to those docks? Olsen: It was after the fact when I went out there. I know in one of ' those aerials it does show the one dock. I guess I should have brought. . . down but it looks like on the aerial you can see that it looks like it was this lot that had a dock out. It didn't look like there were 2 other docks ' here. That was an aerial from early 80' s. Erhart: Is the applicant here? ' Olsen: I don' t see them. I don' t see the other two either. Erhart: Are you a neighbor? ' Al Anderson: We live on the other side of the. . . ' Carol Anderson: Our lot is directly opposite, across the creek. Erhart : Were the docks there before they filled? ' Al Anderson: Not that we' re aware of. Carol Anderson: Not that we' re aware of. Erhart: So it' s conceiveable that the docks were installed after they did the fill . ' Conrad : This particular one, the homeowners of this particular lot that we're looking at has always had a dock but it was not a very improved piece of land and I think they were literally tagging onto the other owners, homeowners who were trying to "improve" their property and they went along with the construction that, the homeowners association went along with the construction but in the past, in my recollection is they always had a ' little back there but it was not a very major dock whatsoever. Erhart: The dock actually could have gone up to the ordinary high water mark and probably was rebuilt after. . . Conrad: That would ..be a good guess, yes. ' Olsen: The photos show, again you can see that those two did have. This is the recreational beachlot, the furthest one over. Behind the. . .and then this is the lot right next to it and it did go up through so yeah, they did have like planks out to it. Planning Commission Meeting February 21, 1990 - Page 3 Erhart: Yeah. Do you have any idea in terms of volume how much dirt they moved in there? Olsen: No I don' t. Erhart: Do you know who the contractor was who moved the dirt? Olsen: It's on the application. All these questions, I don't know the answers to. ' Elison: What are you getting at? Erhart: I'm just trying to get a feel for this. Did they haul it in with' trucks? Olsen: Oh yeah. I mean there was a substantial amount of fill . I Erhart: Do you have any idea how many truckloads? Olsen: We could figure that out. Harland Johnson from Chaska was the contractor. Erhart: Do you think he' s been around? ' Olsen: I would think that they would have known. Erhart: Yeah. Hauling dirt onto a lakeshore just isn' t, that' s just. . . Conrad: And to jump onto Tim's comments, the last time we talked about II this we were talking about what does Chanhassen do to contractors who theoretically know what the ordinances are but ignore them. In this case, and I know it' s your turn to talk Tim but what do we do? Do we just say this contractor's welcome back to Chanhassen? Do we have a way of penalizing the contractor? Krauss: We don' t have any licensing of contractors that would allow us to penalize them. All we can do is watch them more closely in the future. Olsen: Unless they get permits, we don' t even know they're there. , Conrad: Yeah, but we really don't have a way to restrict contractors? Erhart: Well you could. You could take, we do now have a penalty clause in our wetlands filling. Krauss: Well who you go after is the property onwer. ' Erhart: We could include the contractor in our ordinance too. I tell you, if one of them got fined, believe me all the rest of them would know. That's just an idea. Conrad: Normally the contractor seeks the permit. ' Planning Commission Meeting February 21, 1990 - Page 4 ' Olsen: Right. Krauss : Well typically communities license trade' s people. Plumbers, electricians. Contractors? I haven't heard of communities that extended that to grading contractors but it's not improbable that you could do so. ' Erhart: I was just thinking that you could write, correct me but we changed the ordinance recently to actually penalize someone who fills wetlands right? Olsen: That' s just the application fee is doubled and you can also go further. ' Erhart: If you could somehow slap hands of contractors too. It' s just an idea. What we' re saying here, what the DNR recommended was they don' t have to take out all the volume of material that was put in. Olsen: They just go the ordinary high water mark. t Erhart : Yeah. And what we' re recommending is to take it all out. Other than is there any, other than pure academics that they shouldn' t have done it, therefore they should take it all out , is there any substitute reason ' why they should be allowed to leave some in? Is that improving or having no affect by leaving it? In other words, what's the difference between , other than philosophical , what's the difference between the DNR' s ' recommendation and our recommendation? Olsen: Well our recommendation restores more wetland. And it's less manicured lawn, fertilizer . ' Krauss : The DNR is regulated, well what they're allowed to deal with is regulated by state law and they can only deal with it to the OHW. That ' doesn' t mean they necessarily would oppose our going further. Erhart: And so they wouldn' t even go beyond recommending that simply because . Krauss : They can' t. ' Olsen: They can't. Erhart: Okay. I've got one last question then. Allowing the boardwalk, that's basically consistent with what we'd do to anybody in the same ' circumstances? Olsen: Correct. ' Erhart: On number 4, do we have anything now that requires people to remove purple loosestrife? ' Olsen: It' s a noxious weed and again State law really, it's your responsibility to remove them. Planning Commission Meeting February 21, 1990 - Page 5 I Erhart: The weed inspector is suppose to, who I think was Tom Hamilton. I Olsen: He used to be. I think it's Scott Harr now isn' t it? The problem is that there' s real no cure you know to remove it but this stuff will be ' coming back young and that's when you get it. Erhart: The reason I ask, do we really want to include this item 4 in herll if it's already another law? I think it just acts, not that I 'm pleased with what these people did by any means but I think it puts us, the City a little bit in the position of almost kind of kicking dirt at them and I think if that's already a law, that they have to remove it which cannot bell enforced, I almost wonder if we shouldn't just stick to the first 3 points and leave it at that so I ' ll pass it onto you Steve with those comments. Emmings: I don't really have much on this. I guess I don't, it seems thaII the applicants have already agreed that they're going to do what the DNR has said they have to do so we' re really talking about an additional 9 fee' here and I guess I was a little bit torn between doing something that was just purely punitive for the sake of punishment and the fact that, which I don' t want to do and on the other hand being faced with this situation ove and over again. We see this so often and if we don't take a stand I think whereby we will essentially always impose this type of penalty or our wetlands ordinance is going to be a joke because it's going to put a premium on ignoring the regulations and it can allow anybody who just goes, ahead on their own to get whatever they want so I guess I don't think we have any choice but to have them remove it. Whether it' s 36 or 45 feet, I don't know what the right amount is but I go along with the staff recommendation here. The only question I have is, I'm wondering what woulli happen, what happens to the fill that's removed? Do we have to be concerned about what they're going to do with that? Olsen: Yeah. It has to be removed. It can' t be dumped on the other II wetland . Emmings: I 'm just scared that something like that will happen. I Olsen: Yeah, I was going to put that in. That we should probably make. ' Emmings: Does it have to be removed from the site or can they dump it on the higher portions of this ground if they want to where it will all wash back down? I Olsen: The fact that it's got purple .loosestrife in it means that again you can see that it's growing. There are certain State regulations of wayil that you have to remove that fill and where you can take it. Emmings: Right. There are what regulations? State regulations? Olsen: There's recommendations of certain things that you can't just dump II it right next to where you're taking it out because it will just, like you say wash back in and the purple loosestrife will go back in. We don' t allow filling. To remove fill and then place that within another area of II wetlands. II II ' Planning Commission Meeting • February 21, 1990 - Page 6 ' Emmings: I just see that as a shortcoming in the recommendations. I think we should have a recommendation that removed fill or fill that is removed . Or they' ll submit a plan as to where the fill will be deposited to the City before removing any and it will be approved by the City. Or to be approved by the City staff . Something like that. Erhart: Yeah, including erosion control . Emmings : They're doing things like that. Kind of a grading. Would you call it a grading plan? Olsen: Yeah, technically they' ll have to get another grading plan. Emmings : So a grading plan. Erosion control and where the spoils will be deposited. That' s all I have. Conrad: Good Steve. Annette? Ellson: I agree with the staff to extend it to the entire area versus just the ordinary high water mark. I like the idea of adding what Steve did for a number 5. It would just be our luck that we would have them just put it ' higher up on the same soil so if we go to all the trouble to tell them which manual , how to remove loosestrife is, the least we can do is refer them to the State recommendation or permit process or how to make sure they ' dispose of fill with purple loosestrife in it properly as well . But I agree with staff' s recommendation. Conrad : There is not a date in our motion as to when it has to be removed by. Olsen: Well the DNR' s date was May 1st. We might as well just have the same date. Erhart : We can' t do that because they cannot move equipment until the ' limits are off the roads. Ellson: The what? t Erhart: Until the road restrictions, if they're going to haul equipment in which they're going to have to do here. ' Conrad: Yeah, May 1st seems a little bit. Erhart: Usually that goes off May 15th. We have to give them 30 days. June 15th would give them 30 days. ' Conrad: What date? ' Erhart: June 15th would give them generally 30 days. Sometimes those limits come off earlier depending on the weather. May 15th usually. Planning Commission Meeting February 21, 1990 - Page 7 Conrad: By the way, I think that's a real good staff report. I really liked how it was worded. My only other comment would be when we restore this Jo Ann, it simply means removing so as we remove, does that mean we' ll' have 35 feet of water taking the place, depending on water level and what III have you, and then we' ll have, or whatever the number is and 9 feet above the water level which will be barren at this time. So what does it look like? What we have done, we haven't restored. We have removed. Olsen: Right. There's that cross section with the DNR that we' ll still give it that. It won' t just be, it will have some grade to it and then it' will have the stone wall or whatever. I can't remember what they referred to it as. You can, what we've done before with others is to work with them, with the DNR and the Fish and Wildlife to come up with some plantings. If you want them to go that far , we can do that. Conrad: I just don't want it to look ugly or I don't want to restrict it to being nothing . Olsen: It will come back pretty quick. I mean they do return to their natural state. Conrad : So the cattails will come back? Olsen: I 've been told, yeah. That's what they always . ' Conrad: They probably will in that area. Erhart: In here they will . Conrad: Yeah. Okay. I think we should have a date in there by which thill is restored and I like the comments on the plan that is submitted and somell erosion control procedures . I think that makes a lot of sense. That' s my only comment. Is there a motion? Emmings: I 'll move the Planning Commission recommend approval of Wetland Alteration Permit *89-1 with the following conditions. Number 1 would be as it is in the staff report with the addition in the first sentence that the work will be done by June 15, 1990. Conditions 2, 3 and 4 will stay a they are and there will be a fifth condition added saying that the applicant, that prior to doing any work, the applicant shall submit gradinli and erosion control plans and a plan as to the disposal of deposit of the soil that's removed. He'll submit a plan to be approved by City staff. Erhart: I'll second it. • Emmings moved , Erhart seconded that the Planning Commission recommend approval of Wetland Alteration Permit #89-1 with the following conditions: II 1. The applicant shall remove 25' x 45' x 30' of fill measuring from the ' property line adjacent to Lotus Lake as shown on the final plat. The fill will be removed by June 15, 1990 using the typical cross section provided by the DNR. + Planning Commission Meeting February 21, 1990 - Page 8 2. The applicant shall be permitted one boardwalk through the restored wetland to provide access to the dock. 3. The area of removed fill shall be allowed to restore to a natural state. 4. Any purple loosestrife that returns shall be immediately removed as ' recommended by the Fish and Wildlife Service manual , "Spread, Impact and Control of Purple Loosestrife in North America Wetlands" . ' 5. Prior to any work being done on the site, the applicant shall submit for City staff approval a grading and erosion control plan. All voted in favor and the motion carried. 1 . JOINT MEETING WITH CITY COUNCIL TO INFORMALLY DISCUSS THE LAND USE PLAN ' CHAPTER OF THE COMPREHENSIVE PLAN. Conrad : Did you have the City Council waiting outside? ' Krauss: Unfortunately not. Ellson: They were expecting us to go a little late? ' Krauss: I don't know. I was contacted by Bill Boyt and Tom Workman and told they could not make it but I think this might fall into the realm of what if we gave a meeting and nobody came. ' Conrad : You would think they would be here by now. Krauss: Yeah, I think that's the case. Without their presence, obviously that takes a big chunk out of what we were going to tackle tonight. There are some other things, we might as well use the time effectively. There's some other things we can touch base on. The lack of presence of the Council 's a little discouraging. I think that their input at this juncture is real vital and possibly if Moses won' t come to the mountain we can go to them. Everybody's been having some exceedingly long meetings lately and may possibly that 's the result of it. We had hoped to give you, in addition to the material that we gave you, we had hoped to give you the goals and policy section. We had drafted it up and put it into our word ' processor. Unfortunately it ate it. Our word processor is old and it's being replaced and hopefully we can replace it quicker now. Emmings: That gives us another goal for the City. Krauss: We've got them, we just don' t know how to use them yet. . .the plan ' but we had to go to some extreme methods to do it and ship it out to another firm to rescue the magnetic tape. We have it back now and we're working on it. Since the last time we met on the comprehensive plan we've done a number of things. Mark and I have been working extensively and Jo Ann has been working with us too, to actually give you the plan elements L \ CITY OF . G CHANHASSEN 1 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937-1900 June 29, 1988 1 Mr. and Mrs. Bob Pfankuch 100 Sandy Hook Road Chanhassen, MN 55317 and 1 Mr. Steve Frost 80 Sandy Hook Road Chanhassen, MN 55317 Dear Mr. and Mrs . Pfankuch and Mr. Frost: 1 Attached is a copy of the excavation permit for the grading work that was done adjacent to Lotus Lake in the early part of June on your property. As you are aware, the city stopped work on the grading until the appropriate permit was obtained. Your contrac- tor, Mr . Johnson, promptly complied with our request to submit plans and the needed information for issuance of a grading per- mit. However, it has come to our attention that the area in which you conducted the grading may have contained wetland vege- tation. The city has a wetland ordinance which protects wetlands of all sizes. In order for the city to determine whether or not a wetland alteration permit needs to be processed, we need to determine the extent of the wetland on your property. In order for us to determine this information, please contact me and sub- mit any pictures which you would have of the shoreline so that we can resolve this issue. I look forward to hearing from you. 1 Ve tr rs , tiv B rbara Dacy / City Planner BD:v 1 1 i I , . , . CHANHASSEN PLANNING COMMISSION ' REGULAR MEETING MARCH 21, 1990 Vice Chairman Erhart called the meeting to order at 7: 35 p.m. . MEMBERS PRESENT: Steve Emmings, Annette Ellson, Tim Erhart , Jim Wildermuth ' and Joan Ahrens MEMBERS ABSENT: Ladd Conrad and Brian Batzli STAFF PRESENT: Paul Krauss, Planning Director; Jo Ann Olsen, Senior Planner and Sharmin Al-Jaff , Planning Intern ' PUBLIC HEARING: WETLAND ALTERATION PERMIT FOR THE FILLING IN AND SODDING OF AN EXISTING WETLAND LOCATED AT 80 AND 100 SANDY HOOK ROAD, STEPHEN FROST AND BOB PFANKUCH. Public Present : Name Address ' Bob & Sandy Pfankuch Steve Frost 80 Sandy Hook Road 100 Sandy Hook Road Steve Christenson Attorney for Mr . Pfankuch Jo Ann Olsen presented the staff report . Vice Chairman Erhart called the public hearing to order . Steve Christenson: Good evening . My name is Steve Christenson. I 'm with ' the Dorsey and Whitney law firm in Minneapolis . Steve Frost and Bob and Sandy Pfankuch have asked me to come tonight and represent them with your permission. As your staff told you, this filling was all done in 1988. At that time the homeowners had retained a contractor who was familiar or ' supposedly familiar with how these sorts of things worked around this lake. At that time the City stopped construction because the contractor did not have a permit to do that so the City was aware that construction was going ' on. They stopped construction and gave the contractor an opportunity to go get a permit which he promptly did. So based on that, the City was aware or should have been aware that there were wetlands there and went ahead and ' granted a permit to construct it. Here's a copy of the application for the excavation permit and I think this is in the materials that you have. Under Minnesota law, a local government that grants a permit and allows people to take an action like these homeowners, is estopped . What's called ' legally estopped from later changing it's position on that if the homeowners act in reliance on that permit. Spend considerable amounts of money which these homeowners have done. So basically our position is that ' the City knew about what was going on at the time in 1988. Had an opportunity to stop it, which they did and then went ahead and granted the permit to continue allowing what happened . Under these circumstances , it seems to us that the City shouldn't be allowed to change it's position. I think the homeowners may or may not want to contribute to that. If you I Planning Commission Meeting II March 21, 1990 - Page 2 II have any questions , I 'd be happy to answer them. Erhart: Yeah, if you'd stay there Steve. I guess I 'd like, could you 1 respond to that Jo Ann or Paul? Olsen: Well the application was filled out and was not granted . Did not II go through the whole process for granted. They did core out and fill out the application but that does not necessarily mean it was immediately granted. I Erhart: Was it ever granted? Olsen: It never went through. It was never finalized. I Erhart: Is that different? Steve Christenson : I don ' t believe that ' s correct . We have a letter fr.orII the City indicating that that application was promptly granted and that the contractor complied with everything required by the City. I Olsen: What that letter said is that they have come in. That you had made the application. Where is it? Also you know, that still doesn' t mean tha the City cannot go out and find that there still is a wetland. Emmings: Let me interrupt . Has Roger looked at this? Has Roger looked at the point that he ' s raising in terms of it being estopppal based on the II grading permit? Olsen: No . Emi.ngs: I think we ought to table this until he does. I don' t think II r� there's any point in going forward with the public hearing. I think the City Attorney ought to take a look at it. Erhart: Yeah. I mean clearly, I guess if Steve is correct in that he feels, and which I haven' t accepted that you're correct but if you are t obviously then it 's a different situation. If the issue is a contested issue on one versus that , it may not be an apporpriate forum. Paul , what ' s your opinion on this? Krauss: Well , we'd be happy to get an opinion from Roger . I guess these sorts of things have come up before and I 'm not an attorney and I don' t wish to argue points of law but I 've been told by two separate City Attorneys that I 've got a lot of respect for that city staff, if we made a mistake which we don' t think we did, but if we did, we can do that. I mean the worlds not a perfect place. You can then try to rectify that error an' that's a legitimate way of handling things. If you'd like, we'd be happy to get an opinion from Roger specifically on this activity. We could do that for you at the next meeting. IErhart: Well yeah. I think the point Steve is making is this is not the group that decides who's right or wrong in an argument. I mean we' re essentially, I came into this understanding that it was a clear cut. You II II Planning Commission Meeting Match 21, 1990 - Page 3 ' didn' t have a permit and I still believe that . Emrings: The other thing we could do is act on it tonight and get that opinion between now and the time the City Council sees it . Steve Christenson: If the Commission does rake an decision tonight, I think that you should consider as a ratter_ of fairness that the homeowners ' did try to do everything that they thought they were required to do and indeed the City stopped them frorm+ filling and then allowed them to go ahead. ' Olsen : I ' ve got a copy of that letter and I 'm sorry. It had been i.n the other report but I don' t see it in this report but I ' ll read it to you if you'd l .ke. It does not say that the application was granted . It says. ' ErrLings: Are you sure you' re looking at the same letter he is? ' Olsen : Yes . I 'm positive it is . Krauss: June 29th? Yes . Olsen: Attached is a copy of the excavation permit for the grading work that was done adjacent to Lotus Lake in the early part of June on your property. It ' s addressed to both parties . As you are aware, the City ' stopped work on the grading until the appropriate permit was obtained . The contractor , Mr . Johnson , promptly complied with our request to submit plans and the needed information for the issuance of the grading permit. However , t it has come to our attention that the area in which you conducted the grading may have contained wetland vegetation. The City has a wetland ordinance which protects wetlands of all sizes . In order for the City to determine whether or not a wetland alteration permit needs to be processed , ' we need to determine the extent of the wetland on your property. In order for us to determine this information, please contact re and submit any pictures which you would have of the shoreline so that we can resolve this ' issue. Emrings: Was the date of letter was what? ' Olsen: June 29 , 1988. Erhart: Any other comment? ' Steve Christenson: I would like to make the commission aware that the filling was done before June 29, 1988. ' Olsen: Right . They came in after the fact. Erhart: Yeah, I understand. Wildermuth : But the real point was the excavation permit granted? Erhart: Yeah, it wasn' t I don't think. Planning Commission Meeting March 21, 1990 - Page 4 . Krauss : No , it was not granted . Ahrens: It doesn' t sound like it . Erhart : My feeling is Steve, I think we can do our job here tonight and get is passed on one way or the other and let Roger take, let him take that up afterwards so why don' t we proceed then. Did you have anymore Steve? Steve Christenson: I would like to make one further point about what the commission did a year ago. They postponed making a decision until the DNR' had made the determination. The DNR has now come in and concluded that they think the shoreline should be moved back and the homeowners are fully willing to comply with that and improve the shorelines so that the erosion' is stopped to protect the environment and the erosion of water and soil into the lake in that way. Further than that, the DNR does support granting the permit and I think you should consider that too given the DNR's expertise. Erhart : Okay, thank you. Is there anybody else that would like to speak I on this matter.? anybody Steve Christenson: Can I make one more point? Erhart: Yeah. You bet. The staff recommends that 45 feet of wetlands be' or fill be removed . Bob Pfankuch: She mentioned 78 . Olsen: I 'm sorry that was the width. Steve Christenson : 78 was the width. 45 feet is the depth. We wouldn ' t 1 agree that it' s actually 45 feet deep. I was there looking at it tonight and there' s a substantial increase in the grade which seems to me, at leas it looks less than 45 feet away from the shoreline. Although we didn' t, I, didn' t measure it with a tape so. Erhart: Any other comment from the public on this? Emings moved , Wildermuth seconded to close the public hearing. All voted!' in favor and the motion carried. The public hearing was closed . Eraings: I have a couple of questions . If you look on page 4 of the stafli report Jo Ann, and just as an example. There's a little table there where it says, under what it says the DNR is asking to remove. For Frost it says depth x width x depth. Depth is used twice and I imagine one for going up and down and once for going into the property? What the hell does that ' mean? Olsen : I knew you were going to ask that. ' Bob Pfankuch: Steve, I can answer that. In depth they don' t mean up and down. They mean back from the wall on the lot line. II ' Planning Commission Meeting March 21, 1990 - Page 5 1 Emmings: The word depth is used twice and I 'm trying to figure out . Bob Pfankuch: That ' s for each lot line. ' Olsen : What I was doing , because of the graduating line. . . it would be 45, 72. That right be just 45. 45. 72 across and 45. The other one it has ' 45 and 42 . The 45, 78 and 42 because it ' s at an angle. So each side of the lot line, that' s the depth back. Emmings : Alright . ' Olsen : We have those numbers . Sorry to interrupt but we also have those numbers on the grading permit application that the contractor 's provided showing us what they. . . Emmings: You at least understand what they mean and they seer to ' '.indeLstand what they mean so that ' s good enough for re. + Under the recommendations , we ' ve got one down there for Lot 2 , Block 1 which is Pfankuch? ' Olsen : That ' s Frost . Emmings: Where ' s the other one? ' Olsen : It ' s supposed to be in there. I had two different . I had 1 and 2. NurLbet_ 2 is missing . So 2 would read, Lot 1, Block 1. ' Emmings : Okay, and it would be the same general format as that number 1? Olsen: Yeah. The numbers would be 45 x 78 x 42. ' Emmings: Okay, and then 3 , 4 , 5 and 6 would apply to both? ' Olsen: Right. Emmings : Well as far as , the only cornent I have is, we acted on Outlot A in a specific way and I don't see why those reasons don't control this ' decision so I 'd go for the staff recommendation. Erhart: Anything else Steve? ' ENmings: No. ' Erhart: Okay, Annette. Ellson: I would choose to go along with the staff recommendation too. I think I had all may comments from the first time it care through it but I ' agree with Steve. We sort of have a precedence with asking the last applicant to go beyond that and I believe something was discussed at that time about DNR jurisdiction or something like that. ' Olsen: They go up the ordinary high water mark. Planning Commission Meeting ' March 21, 1990 - Page 6 Ellson: Right , so they would usually never recommend anything beyond that anyway so taking them as an expert still would only go to the one point so I don' t think that that holds a whole lot more weight so I 'd go along with the staff ' s recommendation. No other comments . Ahrens : I go along with the staff ' s recommendation on this also. I have I no further comment . Wilderrauth : I guess I 'ra not really satisfied that there is a need to go ' back the 45 feet. DNR is recommending considerably less and I guess Jo Ann I 'd like to hear a good argument why we' re exceeding that by several orders of magnitude. I Olsen: Because the edge of the wetland was beyond that . Wilderrauth: But they must have known that when they made their. recommendation. Olsen: The DNR can ' t go beyond . They can' t make them remove beyond the I ordinary high water mark. That' s as far as their jurisdiction goes . Bob Pfanknch : The DNR last October had a core sampling tube out on the property. They were pulling core samples back, roughly 10 or 15 feet from the rock wall which in itself is like 10 feet into the water I guess according to the DNR which has to be moved back. Several occasions there was no wet soil or wetland soil . In fact on the last occasion, he broke the tube because the ground was too hard and it wasn't frozen. I talked to Pat Lynch of the DNR the day before yesterday. Unfortunately his notes don' t indicate exactly where he pulled the core samples but I 'm sure that could get him to testify or get a letter from him to the best of his recollection where he pulled the samples. Some of them clearly were not wetland and I 'm talking like, you know 5 feet back from the ordinary high I water mark. So 45 feet back is just, has no relation to reality number one. Number two , the first issue that Steve discussed , you' re talking about well if we did this to the Colonial Grove Association outlot, then the same thing should apply. It doesn' t apply because of the issue of the' permit. The association did not receive a permit. The contractor apparently did not include that in his requestion for the grading permit. Only Frost's property and Pfankuch's property were included so whatever yo did to the outlot has no bearing in terns of that issue regarding the Fros and Pfankuch property. Erhart : Okay. Yeah, I think we' re assuming here tonight that the permit I doesn't exist. I think that's the position we're taking there so Jim, go ahead and proceed. Wilderrauth: Well I think a permit is required . I certainly agree with the staff recommendation in that regard but I guess I 'm not satisfied that we have to exceed the DNR recommendation by several orders of magnitude. ' Erhart: Is that it? ' Planning Commission Meeting March 21, 1990 - Page 7 i ' Wildermuth : That ' s it . Erhart : Remind me again so I 'm clear , the resolution to Ontlot A was what? Was that in the meeting here? ' Olsen : Yes . ' Erhart: I won' t ask you if I was here because I 'm afraid of the answer . Olsen: Right. They had to remove a depth of 45 feet . Erhart: And they agreed to that? Olsen: They never cane to the meeting . ' Ellson : They didn ' t contest it . ' Olsen: And that went through the Council . Erhart : Okay. Is there any possibility to mitigate this in terms of moving , establish another area on the lot? Olsen : I don ' t know where you would do it. No. Typically, I mean this is a Class A wetland. Adjacent to the lake. I don' t know where you could ' replace that type of wetland on their property or on that site. Erhart: You could move it to the Eckankar property. I mean that' s one of the recommendations we ' re having tonight on another one. The real issue is ' here, one way to look at this is that if it was just a 1 acre wetland and they filled it without a permit, how would we react to that? Olsen: We are right now I believe. Erhart : Yeah , except that in some cases now we have this new alternative ' that we can move it to the other side of town. Not that I want to give anybody any ideas but . Krauss : The one you' re quoting though Tim is due to an unavoidable public ' action and we are in a position to control the acquisition of the new wetland and it' s establishment elsewhere. It' s unavoidable and it was in the public interest for that street construction that that be considered. Erhart : Yeah, I understand that but it' s just that, and obviously we would prefer to have this discussion before the action was taken so we could deal ' with this logically. Wildermuth: Tim, I just had a little question. If the lake lot removes the fill 45 feet back from where they currently filled, is that what you've ' proposed there or is that what they' re charged to do? Olsen: Well there is a cross section that the DNR has provided and what ' that would do is allow the ordinary high water mark to come back to where it was. Then the remaining portion would come up at an angle and would Planning Commission Meeting r , March 21, 1990 - Page 8 II have to be allowed to revegetate in a natural state . Wildermuth: It'd be an awfully gradual angle then. How does 45 feet bleu, with the, or let' s see it would be 45 feet . How would that blend with the lot adjacent to the Pfankuch lot? The next one. Olsen : It starts at 45 and then as you go to the west or the southwest , i11 goes down to 42 and the next lot over is left natural . Is that what you' re asking? I Wildermuth: Yes. I 'm asking where the wetland ends on the adjacent property to the Pfankuch property. Olsen: property lines don' t really reflect or aren' t to scale but it is, II wetland vegetation. . . fror what we could tell . Erhart : If we were to change the recommendation to provide some flexibility and use the term restored to original condition and allow you some discussions with the applicant later on to actually determine where this line really was, would that rake it easier or harder for you to resolve this going forward? Olsen : There will always be discussions on where it was. II Ermings: I guess my suggestion on that would be this . Instead of, why don' t we put in a condition that says that if they can, assuring that this is passed in it's present form, that if they can show any evidence that thIll wetland , did not extend that far into their property, that the City should take that into account and these figures should be adjusted accordingly. ' Erhart : Okay. Well , that would be my recommendation so if you would recommendation like to rake, I don' t know if any of the other cormdssioners would have any comments, if you'd like to rake that Notion Steve. I Erm1ings: Yeah, I will . I ' ll rove that the Planning Commission recommend approval of Wetland Alteration Permit #88-3 with the following conditions .. Number 1 will read as is in the staff report. Number 2 will be reinserted to include the other. property. There will be 3, 4, 5 and 6. We' ll have a new number 7 that will say that if the property owners can present proof t the satisfaction of the City staff that the wetland did not extend into their properties from the lake as far as they' re being required to remove fill, then that should be taken into account and the amount of fill to be removed should be adjusted accordingly. I Elison : I' ll second it. Wildermuth: I have one little problem there. If you look at 4 and 5. _ 4 I says the area of removed fill shall be allowed to restore to a natural state and then 5 says any purple loosestrife that returns should be immediately removed as recommended by Fish and Wildlife. How are you goinil to destroy the purple loosestrife without destroying everything else? Erhart: Pull it out. I II IIPlanning Commission Meeting March 21, 1990 - Page 9 i ' Ellson: According to that manual you can do it . Erhart: Pull it out by hand. ' Ahrens : You can ' t do that . ' Bob Pfankuch: It ' s never been demonstrated that it can be done. Erhart: I know I ' ve tried it myself . Ellson: Do people have this manual? Erhart: I think 5 is just reiterating. Actually I think there is an ' ordinance for a lot that does require the removal of purple loosestrife already. ' Olsen: Nuisance . Yeah , it ' s a nuisance. Erhart: So 5 is just repeating what is already a law so does that satisfy you Jiro? already ' Wildermuth : No but . ' Bob Pfankuch : Also in conversation with Pat Lynch , I know there ' s been some articles in the papers about illegal sanding of the beaches so I asked him about that . You can sand the beach to a depth of 6 inches twice without a permit from the DNR. If we move the wall back and I sand the beach, what I 'm going to have is a water filled ditch if you ask me to restoz.e a wetland and eventually that will fill up with soil , vegetation up against the rock so you' re just going to make me remove something that' s ' going to naturally fill in all by itself because the sand on the water side of the rock is going to be higher than the so called restored wetland . It just doesn ' t make any sense. Besides being obviously punitive, you' re asking me to restore something that never. existed . you ' re ' Emmings: That' s an interesting point. Are you saying there never was a g P _ 9 wetland down there? Bob Pfankuch : I'm saying there never was a wetland as described by the planning staff. Emmings: Do you have photographs of your property from that time before it was filled? ' Bob Pfankuch: I have some photographs but they're not of a nature that I think could be used to show that. Some of the photographs that I supplied that were xeroxed copied with the construction equipment on it at the time that it was stopped will show the extent of the loosestrife which is on the water side of the front loader . Then on the other side you can see that there' s a clearly delineated section of land that was sodded going down to ' the dock and it would be the left side facing the lake, whatever direction that is, is where the hill was that actually was carved down to flatten out Planning Commission Meeting I March 21, 1990 - Page 10 I the land. That was solid virgin earth . Shirley' s here tonight . Her property is adjacent to mine. Opposite the Frost' s. The ordinary high water stake is about 2 feet back from the water ' s edge currently. Her. lot' is in natural condition. It certainly does not have 45 feet of wetland . I mean if it' s more than 10 feet I 'd be surprised behind the ordinary high II water mark. Thank you. Erhart: Any comments Paul? Krauss: Well you know as to the sand beach, the DNR may have regulations again about that. I 'm sure they do but you cannot throw a sand beach down in a Class A wetland and no DNR official would tell you that you could . Erhart: What is it? You can put a sand beach down in this city below the II ordinary high water mark? That you can do? Emmings: But you need to get a permit to do that . You can sand above the ordinary high water mark is my understanding without talking to the DNR but you can't sand below the ordinary high water mark without talking to them.' He said something different tonight but I just don' t. . . Bob Pfankuch : It' s not the way Pat Lynch explained it to me. He said you can sand 50% of the lakeshore not to exceed 50 feet to a depth of 6 inches each time. You can do it twice without a permit. You have to get a permi for the 3rd and 4th and 5th and 6th time. Emmings : Below the ordinary high water. mark? I Bob Pfankuch: If I fill up the water area on the other side of the wall I with sand , what I 'm going to have is a triangular ditch. Erhart: But is it below the ordinary high water mark or above? Bob Pfankuch : It 's on the water side of the ordinary high water mark wherII you can sand. . . Emmings: But not if there' s a wetland there you can' t. I Bob Pfankuch: It's filled with water. What do you call that? Wildermuth: If he has to remove all the fill , then it will be covered wit II water right. Emmings: So what? II Erhart : But your feeling is it's above the ordinary high water mark? Well , anyway I guess what happened. Essentially if the applicant feels thll date is wrong that we dealt with, he has the option to do what? Krauss: We'd be happy to receive any better data than we have. We made II our best guess recommendation after the fact which is difficult to do. II II IIPlanning Commission Meeting March 21, 1990 - Page 11 Erhart: And so to get it reviewed again and we' re going to pass something here. To get it reviewed with better data, does he go back to Planning Commission? Does he take it to Council or can you give him sore. . . Krauss: It would be helpful if it were clarified before it went to the City Council . Otherwise we could try and do it at staff level . ' Bob Pfankuch: I 'd say the burden of proof is on the City. Erhart : Okay, is there any other discussion? ENmings roved , Ellson seconded that the Plannin g Commission recommend approval of Wetland Alteration Permit #88-3 with the following conditions : ' 1. Lot 2, Block 1, Colonial Grove at Lotus Lake 2nd Addition, shall have 45 ' x 72 ' x 45 ' of fill removed measured from the property line adjacent to Lotus Lake as shown on the final plat. The fill will be removed by June 15, 1990 using the typical cross section provided by the DNR. 2. Lot 1 , Block 2, Colonial Grove at Lotus Lake 2nd Addition, shall have 45' x 78 ' x 42 ' of fill removed measured from the property line adjacent to Lotus Lake as shown on the final plat. The fill will be ' removed by June 15, 1990 using the typical cross section provided by the DNR. ' 3. The applicant shall be permitted one boardwalk through the restored wetland to provide access to the dock. 4. The area of removed fill shall be allowed to restore to a natural ' state. 5. Any purple loosestrife that returns shall be immediately removed as ' recommended by the Fish and Wildlife Service manual , "Spread, Impact and Control of Purple Loosestrife in North America Wetlands" . 6. Prior to any work being done on the site, the applicant shall submit for City staff approval a grading and erosion control plan. 7. If the property owners can present proof to the satisfaction of the ' City staff that the wetland did not extend into their properties from the lake as far as they' re being required to remove fill, then that should be taken into account and the amount of fill to be removed should be adjusted accordingly. All voted in favor and the motion carried . E!<rings: I think Jim is voting no but I 'm not sure. Maybe he didn' t vote. Wildermuth : I voted yes but you know. . . 11 Planning Commission Meeting , I March 21 , 1990 - Page 12 II Emming : The other thing is the City Attorney ought to look at . . . Wildermuth: The other thing is, we ought to have some kind of a provision!' in here that the city staff and DNR and the property owners get together to establish how far back the excavation has to be. 45 feet is an awful long way. ' Erhart: Well I thought we did that. Effectively by adding the new point , I think we did leave it open for discussion. I Ahrens : If they can come up with some proof. Emmings: But the other thing is Jim, the DNR's interest ends at the I ordinary high water. mark. They have no interest above that . We have stricter standards than they do and we' re entitled to have those. Bob Pfankiich : Just one more thing . City sewer extends beyond the ordinarII_ high water mark. The DNR, Pat Lynch doesn' t go with a straight line between the two markers so I suggested a curving more natural shoreline certainly at least to the extent of the city sewer . He said if you have t pull it back to the ordinary high water mark, the City will have to remove the soil . And incidentally, that 20 foot easement was put in by the City and the wetlands were covered by the City so I 'm really not responsible fo' that. That ' s an existing condition. That ' s 10 feet on each side of the sewer. 10 feet on Frost' s property. . . Erhart : Okay, this will go to City Council , unless you have some further II discussion with staff, on April 9th. I PUBLIC HEARING: WETLAND ALTERATION PERMIT FOR FILLING AND ALTERATION OF CLASS A AND B I WETLANDS LOCATED ON LAKE DRIVE EAST, SOUTH OF HWY. 5 AND EAST OF DAKOTA AVENUE, CITY OF CHANHASSEN. Jo Ann Olsen presented the staff report . Vice Chairman Erhart called the I public hearing to order . Ellson moved , Emmings seconded to close the public hearing . All voted in II favor and the motion carried. The public hearing was closed. Wildermuth: It seems inconsistent that here we're going to fill a wetland" and on the issue just preceeding this we're going to make people restore a wetland . This is all in the Lake Riley watershed right Jo Ann? So it' s legitimate to do this trade-off as far as the DNR is concerned? I Olsen : What we' re doing is we' re not redirecting, there' s only a small portion of the area A wetland so the water that purpose is serving has not!' been altered . The water runoff would still be maintained in the area B wetland by putting in the storm sewer. It' s just not running above ground , it' s running below ground. II II II DORSEY & WHITNEY A p........1.-,.....(.eyre...s Peomplarm.Cobh.nwr. ill*PAID Avs►ZCtt *800 PIRA? BANE PLACE EAST s44 PIk r 7tA IUtAt. Imta oruan•O WQw rots,law TODD!0012 0414as-woo MINNEAPOLIS, X1NNL►SOTA 35403 stMttROTttr,71sx•seoTa 11401 I (612) 340 8600 way r rse•OM i:tJp COtnIIC'f7GL7 A\'aNpt,K.M. 01S}Sa3T 1VTTtD[AL M`.f11 111 11.111,1f1 �gD>ato x,D.e. Wee rm.= =Y-0606 (a'nil03a•psep DDY/41A,11tDDDS4TA 55341 'vex(me)040-tom (lwtj 475-con ft flitAnttettroctt num. •I *OD RIMY ITLI3TATI Ct.XThk LOMAS SCUT 13.4A7,ZNOnap IACDOS,1110,211.11A S4103 N•yDD. :7m.+tor sDOxcssr STEVEN 12L)CHRSTRzisON (400 c!t-3000 75000?AMR.PDANCTe 3404005 MI>aAV>IOl10.M 71(tt l.btx(: 61-I2•eti•59.It/ MAT;WM.110ATAX4 4yset I («wr ra•wao AII ►AS1 ...--L CLIf7lR w7 6377 MDR sTattT D0710 DODO Otis-3-tlQt r 1001100'La,10aTADA WO* April 4, 1990 I i ii Mr. Roger J. Knutson Campbell, Knutson, Scott & Fuchs ISuite 202 Yankee Square Office Building Three 3460 Washington Drive Eagan, Minnesota 55122 I Re: Chanhassen Wetlands Alteration Permit, 80 & 100 Sandy Hook Road IDear Mr. Knutson: I Our firm is representing Robert and Sandy Pfankuch of 100 Sandy Hook Ito;d and Stephen Frost of 80 Sandy I look Road, Chanhassen, Minnesota. As we discussed by telephone on April 2, 1990, the Chanhassen City Council will meet on I Monday, April 9, 1990 to consider a wetlands alteration permit that would require the Pfankuchs and Frosts to remove fill added to their lots in 1988. This letter explains why the City is estopped from imposing this requirement. II. Facts In late 1987, the Pfankuchs and Frosts purchased their lots on Lotus Lake in Chanhassen. Because the land approaching the Iake was lumpy, unlevel, and .c--` - contained various kinds of vegetation, it was difficult to mow and to control the Ipurple loose strife that had begun to grow on the lots. Thus, the Pfankuchs and Frosts hired Harlan Johnson, a reputable contractor in the Lake Minnetonka area, to grade and add a small amount of fill to their two lots. 1 01 SH d 8 110�S `T dJda WOed 8S:II I I 0662—tr@-2dt?0'd 6£LS2.£6 62LSL26 _ 01 SHOld '8 11005 `T133dWt10 Wad 00:ZI 066T-170-eldd Mr. Roger J. Knutson DORSEY 8c WHITNEY ` April 4, 1990 = Page 2 In early June 1988, the contractor began grading and filling the lots. Unfortunately, the contractor neglected to obtain the Excavating Permit from the City of Chanhassen ("the City") before doing so. The City stopped work on the grading, and City employees visited the lots to post red flags prohibiting work on the lots. On June 10, 1988, Harlan Johnson applied for an Excavating Permit for the Pfankuchs and the Frosts. The application is attached as Exhibit A. The City appears to have granted the Excavating Permit. By letter dated June 29, 1988, former City Planner stated that a copy of the permit was attached and that "the appropriate permit was obtained." I am attaching this letter as Exhibit B. In any event, City employees returned to the lots and removed the flags prohibiting work on the project. City employees informed Harlan Johnson that he could continue with the grading and filling. Johnson completed the work before June 29, 1988. Johnson apparently added approxin-iwteiy 6 to 12 inches of fill to portions of the lots. On June 29, 1988, the City informed the Pfankuchs and the Frosts that wetlands may have been present on their lots where the grading and filling occurred. City staff, Pat Lynch of the Minnesota Department of Natural Resources ("DNR") (296-7523), and staff of the United States Army Corps of Engineers ("Corps") have examined the site. After taking core samples and examining adjacent vegetation with their botanical expertise, the DNR and the Corps have recommended that the Pfankuchs and Frosts remove any fill placed below the ordinary high water mark. This removal would result in moving the shoreline inland. approximately 5 to 10 feet on the Pfankuch property and approximately 10 to 26 feet on the Frost property. The DNR and the Corps are not recommending any further removal of fill. The City staff, however, recommends that the Pfankuchs and Frosts remove any fill added to their lots for an additional 45 feet from the shoreline. This recommendation apparently assumes that the entire area to which any fill was added on both lots was a Class A wetland as defined in the Chanhassen City Code§ 20.1. For your convenience, I am enclosing a copy of the Staff Report. 1 I LVt CY a ran r vneY ill . Mr. Roger J. Knutson AC>F25EY �h'H1TNE�' . April 4, 1990 Page 3 IL Discussion A. Estoppel Standards Assuming, but not conceding, that the property in question contained wetland, the City is estopped from requiring removal of the fill under the circumstances of this case. Under Minnesota law, a municipality may he estopped I from enforcing a land use ordinance when a property owner: (1) relies in ood faith• (2) on an act or omission of the municipal government; and (3) and makes a I substantial change in position or incurred obligations and expenses such that it would be inequitable to destroy the rights the property owner has acquired. ilaxi.T. v. Credit River Township, 299 Minn. 170, 177-78, 217 N.W.2d 502, 507 (!974) (en I bane); State v. Liepke, 403 N.W.2d 252, 254-55 (Minn. App. 1987). Because these elements are met here, the City is estopped from enforcing its wetlands or proposed against the Pfankuchs and the Frosts. S ordinance as I IB. Case Law The Minnesota Court of Appeals recently addressed estoppel in Liepke, 403 IN.W.2d 252. That case involved expansion of a garage into a heavy equipment storage building. 11, at 253. The property owner presented these plans to the Eden Prairie city building inspector and discussed them with him. Iii. A city employee Iinspected the construction site and ordered the property owner to move his forms six feet away before approving continued construction. 1. City employees visited the site during construction and observed or should have observed the heavy Iequipment in plain view. Id After construction was nearly complete, the city stopped construction based on a city zoning ordinance prohibiting storage of heavy equipment on the property. Id. at 253.55. IThe Minnesota Court of Appeals concluded that the city would be estopped from prohibiting use of the building to store heavy equipment if the property owner I could demonstrate the facts described above. Id. at 256. Because the trial court had not admitted any evidence on the estoppel issue, the court remanded for findings of fact. id; IIn large part, the Liepke court applied the rule of$ullivlan v. Credit River Township 299 Minn. 170, 217 N.W.2d 502 (Minn. 1974) (en bane). In Sullivan.a I ' 1 b0'd 622S226 a SHOnA 2 'Jong ''I rUU.H I^1 61rW-1 MM. T MLGT_F,M_v_Fu jetrog,0 • Mr. Roger J. Knutson DORSEX V17t1 1TN CY April 4, 1990 I Page 5 IFinally, it can hardly be questioned that the Pfankuchs and Frosts have incurred substantial expenses in leveling and filling their lots such that it would be I inequitable to destroy the rights they have acquired. Under the belief that all City requirements were being met, the Pfankuchs and Frosts have spent in excess of 510,000 to carry out the project. Equity does not support requiring the Pfankuchs and I Frosts to incur further expense to undo the work. deg Sullivan, 299 Minn. at 177-78, 217 N.W.2d at 507. You should be aware that the City Council has recently required the removal of fill from a recreational beach lot adjacent to the Frost property. Although this fill was apparently placed at approximately the same time as the fill on the Pfankuch il and Frost property, the estoppel analysis is inapplicable to that property because no Excavating Permit or other City action/inaction was taken with regard to the recreational beach lot. Thus, the City is not bound by its removal decision with respect to that property. IIII. Conclusion The case law discussed above demonstrates that the City should be estopped ' from requiring removal of the fill in question. Accordingly, please treat this letter as a request for withdrawal of the City's proposal to require removal of the fill in excess of the DNR proposal. IAfter you have had an opportunity to review this letter, I would appreciate ' �t if you would contact me. Thank you for your attention to this matter. I IVery truly yours, igigeii il ‘ jIL, . Steven M. Christenson SMC:st Icc: Jo Anne Olsen Robert Pfankuch iStephen Frost I i -:4 I s SO'd 6F'1A/S'6 01 SH3Od '8 1100S `1I38dd30 WOZIJ IO:ZT 066T- '0-2fdt I - - -- ...,.. ..,.. ....:� ',vl 5irY a nn f Ones