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11. Zoning of wetland ordinance regulating access through Class A & B /1 :: \\1 , ,( CITY O F PC DATE: 9/19/90 cHANHAssEN CC DATE: 10/08/90 II Y CASE #: 90-12 ZOA �„ By: Olsen/v II 11 STAFF REPORT il . , PROPOSAL: Zoning Ordinance Amendment to Amend Section 20-409, IIGeneral Development Regulations - Wetland Ordinance IZ LOCATION: '., Q _V APPLICANT: /o /il90 J Q 1 II PRESENT ZONING: 1 ACREAGE: IIDENSITY: ADJACENT ZONING AND LAND USE: N ' 4s- - E W - I Q ' WATER AND SEWER: II-W PHYSICAL CHARACTER. : 2000 LAND USE PLAN: I I 11 ZOA for Wetland Access September 19, 1990 Page 1 BACKGROUND The City, as a policy, has required access through a wetland to be provided by a boardwalk versus filling or dredging. While this has been consistently enforced, the Zoning Ordinance regulating wetlands does not state that access through a wetland will be provided by a boardwalk. A recent wetland alteration permit requested the right to maintain a strip of fill area within a Class A wetland to serve as access to a dock on Lotus Lake (Lotus Lake 11 Betterment Association) . After receiving comments from the DNR, Fish and Wildlife Service and Corps of Engineers, the City has reinforced their position on access through wetlands by boardwalk only and recommended denial of the wetland alteration permit. The Planning Commission and City Council directed staff to amend the Zoning Ordinance to specifically address access through a wetland. PROPOSAL The issue is access through a wetland and how it should be allowed. Staff first differentiated access between pedestrian and vehicular. For all types of pedestrian access, a boardwalk shall be the only permitted means of access. When the access requested is for vehicular access, such as a street, then a boardwalk would not be 11 suitable and fill would have to be considered. Vehicular access could also include a boat launch, but staff will be recommending that boat launches be permitted through a wetland only if there is not a public boat access on the lake, providing another means of launching a boat. Therefore, if a boat launch is requested through a wetland on a lake with a public boat launch, the City could allow only a pedestrian access via a boardwalk versus filling a portion of the wetland. A final consideration was the height and width of the boardwalk. The boardwalk should be between 6 and 8 inches in height above ground elevation and the ordinary high water mark where it is over open water. The width of the boardwalk shall be a maximum of 6 feet. The 6" to 8" height will allow wetland vegetation to be maintained around and under the boardwalk. PLANNING COMMISSION ACTION On September 19, 1990, the Planning Commission unanimously recommended approval of the Zoning Ordinance Amendment to Section 20-409, with two changes to the wording fo the amendment for clarification as follows: (6) The dock or walkway is elevated 6 to 8 inches above the ordinary high water mark and 6 to 8 inches above the ground level,when above the ordinary high water mark, and shall be a maximum of 6 feet in width. (7) Vehicular access on fill material through a wetland shall only be considered when the access must be for vehicles. Private boat launches on fill material will not be permitted through a Class A or B wetland if a public boat access exists on the subject lake. I 1 § 20-407 CHANHASSEN CITY CODE (4) Sedimentation basins for construction projects. • 1 (5) Open storage. (6) Animal feedlots. (7) The planting of any species of the genus Lythrum. (8) Operation of motorized craft of all sizes and classifications. (Ord. No. 80, Art. V, § 24(5-24-5), 12-15-86) Sec. 20408. Prohibited uses in class B wetlands. The following uses are prohibited in class B wetlands: (1) Disposal of waste material including, but not limited to. sewage, demolition debris. hazardous and toxic substances.and all waste that would normally be disposed of at a solid waste disposal site or into a sewage disposal system or sanitary sewer. (2) Solid waste disposal sites, sludge ash disposal sites, hazardous waste transfer or disposal sites. (3) Animal feedlots. (4) The planting of any species of the genus Lvthrum. (Ord. No. 80, Art. V, § 24(5-24-6), 12-15-86) Sec. 20-409. General development regulations. I . Within wetland areas and for lands abutting or adjacent to a horizontal distance of two hundred (200)feet, the following minimum provisions are applicable: (1) The minimum lot area is fifteen thousand (15,000)square feet. (2) The minimum structure setback is seventy-five(75)feet from the ordinary high water I mark. (3) Septic and soil absorption system setbacks are one hundred fifty (150) feet from ordinary high water mark. (4) The lowest ground floor elevation is three(3)feet above ordinary high water g ter mark. (5) No development shall be allowed which may result in unusual road maintenance costs or utility line breakages due to soil limitation, including high frost.action. • (Ord. No. 80,Art. V, § 24(5-24-13), 12-15-86; Ord. No. 80-C, § 1, 10-5-87) Secs. 20-410-20-420. Reserved. Supp. No. I 1190 1 Planning Commission Meeting August 1 , 1990 - Page 18 Wildermuth: Did they get variances? Emmings: No . They 're operating illegally . But anyway , if anything 's going to happen on it , it ought to be done as a zoning ordinance amendment to me and I 'm certainly interested in enough in it so I wouldn't mind working on it . 11 Krauss : Well we can make that sentiment clear at the Board . That there is some desire to consider it as an ordinance and we ' ll make them aware of that . Conrad: Make sure the word is some desire . Emmings : Because if they make it a variance they can put it anyplace they want to . Where are the controls then? I don 't like this . Conrad: The controls would be imposed based on the stipulations of that variance . 11 Ellson: It would be done case by case . Conrad : It would be done case by case . See I 'm of the position that I really have a tough time with it period . I 'm not sure that I find it acceptable but I haven 't looked at all the unique circumstances . A whole lot of beachlots have survived for a whole long time with a whole lot of kids and haven 't created any controversy and it hasn 't brought any issues 11 up in the neighborhood . Wildermuth : What has it done to the lake? Emmings: Yeah . Conrad: I just don 't see that as a problem . Ellson: It 's something that could be looked into I guess . 1 Conrad: Can look into it and I think we should put it on the work agenda for us as obviously Paul a low priority . No , I don't mean that . Emmings : Even though it 's deleted , sorry . ( Tim Erhart arrived for the meeting at this point . ) PUBLIC HEARING: WETLAND ALTERATION PERMIT TO CONSTRUCT A WALKWAY PATH THROUGH A CLASS A WETLAND TO ACCESS A DOCK LOCATED AT 7016 SANDY HOOK CIRCLE , CHRIS ENGEL FOR LOTUS LAKE BETTERMENT ASSOCIATION. Public Present: Name Address Pat Lynch 1200 Warner Road , DNR Representative I - Planning Commission Meeting 11 August 1 , 1990 - Page 20 11 some discussion with a Dr . Charles Hirt and Chris Engel regarding leaving a small access strip to the docking facility so that they could access their dock . I had written a letter saying that the DNR didn 't have a problem with that and that I would allow that to remain provided the rest of the material was removed from the site and I stressed again that that was contingent upon any other local , state and federal or local approvals . That 's about where we 're at now. I just as soon open it up to questions from you folks . I guess the impetus behind allowing them to leave a path was that our permit rules would actually allow that lot to have a 12 foot wide concrete ramp poured down there without a permit from us if that 's what they would choose to pursue . My contention was that yeah, they filled in violation . Yeah , they had cooperated without any problems and were willing to remove the stuff and that I thought it was reasonable and practical to leave a strip in to access the dock given the fact that it 's a multiple use area . The activities are consolidated on one small area . In my professional judgment , the impacts to the wetland area will be nominal once it 's restored by leaving that strip in . 80% of that lot will still go back to a natural state over time with the re-establishment of the vegetation in there . Like I say , the impacts to that particular area I 1 didn 't feel were that severe given the fact that there 's a rather intense infestation of purple loosestrife there . Like I say , as far as the DNR rules are concerned and I 'm not saying that they're the best but they could have had a 12 foot wide ramp and 12 feet of sand across there without a 11 permit from us anyway so I think what they 're doing is again , in the DNR 's perspective is reasonable and practical . ' Emmings : Can I ask you a question? Pat Lynch: Certainly . Emmings: When you say they could have had a 12 foot wide ramp , concrete ramp or whatever , and it wouldn 't have gone against any of the DNR 's regulations , are we talking about that ramp being in a place that 's landward of the ordinary high water mark? Pat Lynch: Waterward of . 11 Emmings: Waterward of? Pat Lynch: 10 or 12 feet waterward . I don 't have that . 10 feet waterward of the ordinary high water elevation . It could be concrete , crushed gravel , an earthen ramp , planks . Emmings: Now just so I get my thinking straight on this, the path that we 're talking about whether or not they 're going to leave it or remove it , is that all landward of the ordinary high water mark? Pat Lynch: No . Emmings: It 's all waterward from the ordinary high water mark? 1 Olsen : No . There 's a portion that goes just above the ordinary high water mark . I I Planning Commission Meeting August 1 , 1990 - Page 22 ' existing rock trail and the question was , the question that came up was , is that just , is that as good? Is that alright in terms of it 's impact on that wetland? That 's what we 're struggling with and we don't have any expertise up here to know and that 's the question I 'm asking . Pat Lynch: I won 't argue that . If you compare the two , a boardwalk will have less impact . I don 't think anybody could argue with that as far as { the impacts . I mean if you 're not placing any foreign material , and I 've read through the Minutes that Jo Ann had faxed to me . Someone , I think Mr . Engel said that he hadn 't placed fill but he had placed rock . Well , that is fill . Fill , whether it 's sand , rock , what have you is fill . Sod . So yeah , a boardwalk has less impact . I wouldn 't argue that but the 1 significance on a site like that , I don 't know if it 's what I would consider a measureable impact . Emmings : Okay , so in this particular case you think it 's probably pretty negligible? Pat Lynch: I would say so , yeah . I mean there are ways to lessen the impact of leaving the strip down there by , if I remember right I think it 's gravel or unvegetated clay path down to the existing dock . If that were revegetated to grass and it just had a grass hill walking down to the lake , that would offset some of the impacts of having a gravel strip out there Iand what that would tend to do would be to filter any kind of runoff that comes from the upper reaches by the tennis courts , etc . so there are ways to somewhat offset the shortfalls that a gravel path has over a boardwalk . And again I stress , that although our rules would allow it and deem it a reasonable access option , they 've got to get your approval too and if you don 't like it . Emmings: No , we understand . I think we finally understand that . Pat Lynch: Okay . There 's nothing wrong with being more restrictive . I 'm ' not knocking that . Conrad: Did we get two conflicting opinions Jo Ann from the DNR? Was that one of our concerns or not? Olsen: No , I think what was happening was that the applicants were stating , possibly misquoting Pat in saying that fill would even be preferred over a boardwalk and that the City didn't have the right to go that far and then it just got out of hand . So no, we really didn 't get conflicting quotes from the DNR . Pat Lynch: There are some benefits to be had by gravel and again I 'm not trying to sell the idea of a gravel path. I 'm just stating that when that gravel , I 've seen the water level today and it 's up quite a bit from the last few times I 've been out but when the water 's up over that gravel , there are some benefits to it as far as runoff coming down that hill . Gravel would tend to filter some of the more course grain material and -granted , if you had vegetation in there it would be a better job but there 's also a lot of benthic organisms and what not that inhabit the nooks and crannies of a gravel area and you 'll find wading birds pecking through i 11 Planning Commission Meeting 11 August 1 , 1990. - Page 26 Emmings: I 'd like to ask Paul . If a landowner , we 've heard Mr . Lynch say that if a landowner , on any individual lot in Chanhassen wanted to construct a concrete and let 's take a worse case , a concrete ramp to put boats in and out on his property . If he started that at the ordinary high water mark and just went waterward with it would he , he 'd obviously be building a structure . Would he have to come to the City for a permit for that? Krauss : Not unless he 's crossing a wetland to do it . Emmings: Well I think he should have to . I think we should find out if our ordinance covers it . It would seem to me that the building of any structure in the water ought to require a city permit if we can have I stricter standards than the DNR has . If our ordinance doesn 't provide that now , it ought to . Krauss : That would put you in the position of having to review every dock . Emmings : No , it does not . We have an ordinance that tells what you can have for a dock and so does the DNR so docks are not an issue . Conrad : You 're talking about a permanent structure? ' Emmings: Permanent structure , yeah . Conrad : I think we could regulate a permanent structure . I thought we already did . Olsen: Again , we use the DNR . We 've adopted word for word the DNR regulations . Emmings: I don 't care if we adopt their regulations but all we 've got to do is say if you 're going to build a structure in the water , in any water in Chanhassen , you 've got to come to the City for a permit . I don 't think frankly that it 's that many . I don 't know of any on my lake . On Minnewashta . There might be some but I don 't know. I think that 's a hole that ought to be plugged . Conrad: We 've got to get back into this thing. Is there confusions and maybe some wording problems with the ordinance and I think we spend 2 hours every other Wednesday night talking about this . We better revisit it quickly . Actually we don 't need to revisit it in time for this year but I think in time for next year we really should have , we should really monitor 11 and see what we 're doing with our wetland protection ordinances because there seem to be exceptions and confusions . - Emmings : Well , maybe you throw lakeshore in there too as well as wetland . 1 Conrad: It becomes a big process . It's not easy to get your hands around because you obviously affect people . There 's a lot of different 11 circumstances that have to be incorporated into the ordinance and tough to do . Tim , any other comments on tonight 's , Pat Lynch's conversation? I 11 Planning Commission Meeting August 1 , 1990 - Page 28 designations of lakes based on DNR standards I believe which the City has ' classified certain things in . A lot of the things that you find , and I 'm playing with really old memory here is the DNR has a whole bunch of control that I don 't know that we can get into . Yet those , I 'm not sure that we have the power in some cases to do some of the regulating that we may want I to and that 's frustrated a lot of people who were on the committees that we formed , I don 't know 7 years ago or whenever . How many years ago it was . A lot of different circumstances and you listed a couple . A 2 foot strip I versus a 40 foot strip and it 's really arbitrary . There 's so many arbitrary things that , that 's why we bring the ONR in and some of the experts in to take a look at certain lots on a site specific basis . I think what Pat 's telling us in the particular case that brought him in here is probably that wetland over there and probably the issue is not a big one as compared to some other major ones that we 're probably letting it go or haven 't addressed in terms of water quality . Yet on the other hand we just , you know you 've just got to have a standard and kind of live up to that standard as arbitrary as that is . So I guess I 'm not answering it very specifically but if we want to get back into this Tim , it 's almost a separate committee where do we want to bring back the lake study committee or the environmental protection committee and have them take a look at 5 years later . What 's happened? What was the intent? What were the problems? Take a look at the variances . Not the variances but wetland 1 alteration permits that were processed . Take a good look at it and see if there are interested people in the city and therefore try to update the ordinance and incorporate some . Erhart : Are you suggesting we should? I Conrad: It may not be a bad idea . It 's like anything . You put any laws in or you put any regulations or you have any kind of plan , it 's always kind of fun to go back , especially because there 's nothing magic about what that ordinance . That ordinance was a mish mash . It was a politically I derived , I 'm not going to say it was a mish mash . The people on the committee were not happy with it because it was watered down significantly . It was watered down to , it was simply not as strong as what they wished and I think it would be interesting to go back and see if we 've accomplished anything with it other than making more paperwork . Erhart: Your response to my discussion was that yeah, we have different I categories of lakes . What I was trying to point out , even though there's different categories of lakes , we treat them all the same in terms of our standards and that 's what I 'm saying is that maybe life isn't that simple . I 'm not suggesting that we open up this thing to review again . That 's a lot of work . I Conrad: You know I really buy what you 're saying. As you know I live on Lotus and Lotus is long and narrow and the 0NR has certain restrictions in terms of safety . Safety is 11 boats can be out on that lake at one time and I 'll guarantee you that on a long narrow lake , that 's not an effective I restriction or guideline . I think in a round lake that 's big, 40 acres per boat and whatever , may be an acceptable standard but I think there are just exceptions all over the board and I agree with you Tim. I just think it 's I -just something that we probably as a smaller city can't get our hands I 11 Planning Commission Meeting August 1 , 1990 - Page 30 I Erhart: I would favor denial of the request to leave rock in there . Just again to repeat everybody 's statement . I think I need to be consistent in how we apply the ordinance and just because this has been put in here illegally , I don 't think this is the least of reasons why we should allow it . Secondly , I guess in a practical sense , by the time you get the equipment in to remove the stuff you 're going to remove , if you 're looking at saving dollars , it 's a very small amount . I 'd like to be sensitive but I just don 't think there 's that much difference between a 4 x 10 foot strip ' by the time you start moving that stuff back out of there . Conrad: Okay , thanks Tim . I have nothing new to add . I think that those ' comments summarize my opinion . I think the only thing I would add , now that I think about it is that we discuss the future of the wetland . Of our permit process . I think we have to make that an agenda item and start cleaning , maybe it 's not cleaning it up . Maybe it 's improving it . Maybe it 's making it more understandable . Is there a ' motion? Erhart: I ' ll move that the Planning Commission recommend denial of Wetland Alteration Permit Request to allow a 4 ' wide by 42 ' long crushed rock path through the Class A wetland adjacent to Lotus Lake . IConrad: Is there a second? Emmings : Second . ' Conrad: Any discussion? Erhart moved, Emmings seconded that the Planning Commission recommend denial of Wetland Alteration Permit Request to allow a 4 foot side by 42 foot long crushed rock path through the Class A wetland adjacent to Lotus Lake . All voted in favor except Wildermuth who abstained and the lmotion carried. Wildermuth: I would like to make one comment . I think if this is the way we 're going to interpret the ordinance, we ought to have some kind of ' length provision involved there because maintaining a log boardwalk is an expensive proposition . A boardwalk is going to be relatively short lived compared to a pathway . A specified pathway or a pathway built to ' specifications and it 's going to require a lot of maintenance over time compared with a path . I think there ought to be some kind of length provision factored into the interpretation of the existing ordinance . Or ' if the ordinance changes , then that could also be incorporated into that . Erhart: Right now Jim we have no reference to a boardwalk in the ordinance at all . This is something that we 've just kind of conjured up as we 've gone along here . We have precedence but it's not really in the ordinance is it? ' Olsen : Right . Emmings: Right now they just can't alter the wetland. They can 't put anything . 11 11 Planning Commission Meeting September 19 , 1990 - Page 8 11 require that the operation be shut down and will ask the City Council to revoke the permit . All voted in favor and the motion carried unanimously. • I PUBLIC HEARING: ZONING ORDINANCE AMENDMENT TO AMEND SECTION 20-409, GENERAL DEVELOPMENT REGULATIONS OF THE WETLAND ORDINANCE REGULATING ACCESS THROUGH CLASS A AND ' B WETLANDS, (TYPES 2-8). Jo Ann Olsen presented the staff report on this item . Chairman Conrad ' called the public hearing to order . Batzli moved, Emmings seconded to close the public hearing. All voted in favor and the motion carried. The public hearing was closed. ' Batzli : What happened to the gravel? ' Olsen: It was denied . They do have to remove it . In working with DNR , we 've given them now until I believe May . May 15th of next year because the winter months will be better for them to remove it . Batzli : And the DNR basically said that gravel is not a good way to go? He had some expert at ONR telling him that . ' Emmings: He came here . Batzli : He came here? That 's what I missed then . Okay . ' Olsen: And he said that there was a . . .difference between gravel , in this case between gravel and a boardwalk but that they still preferred boardwalk . ' Emmings: In general they 'd prefer it . ' Batzli : I like it . I think it 's good to clarify it because we did have kind of an ambiguous part before. I would just clarify paragraph 6 . There would be a comma after the word level and change the word and/or so it ' would read , above the ground level , or ordinary high water mark where open water is present , . Emmings: Did you know you stole his idea? ' Batzli : Did I? I 'm sorry . I , retract it . • ' Olsen: So you 're taking out or? Batzli : I 'd take out and and put in or . Olsen: So what happens when there's ground and water? Does that apply then? ' Erhart: Whichever is highest . 1 1 Planning Commission Meeting September 19 , 1990 - Page 10 Erhart : At any point period . ' Emmings: Does that make sense? Batzli : I think that does . ' Emmings: So it will be 6 to 8 inches above the ordinary water mark . ' Erhart : Or ground level . Emmings: And 6 to 8 inches above the ground level when. Batzli : Higher than the ordinary high water mark . Emmings: Or being installed above the ordinary high water mark . Does that ' make sense? Erhart : The most clear way to do it is to separate it into two •sentences . When installed above the ground . ' Emmings: Not above the ground . Above the ordinary high water mark . Olsen : Are we losing that that 's still within a wetland? Emmings: If the water 's low you can be above the ground but below the ordinary high water mark . I think you want to use the ordinary high , OHW as your break point . Batzli : I love drafting things by committee . Emmings : No , it 's horrible . ' Conrad: It doesn 't work . Olsen: You can say , well have staff come back with another one . Conrad: Whoever makes the motion has the opportunity . Batzli : Let 's skip over Steve . You work on something. Tim , have you got anything? Erhart: No , I didn 't have a solution. My comment only was that it reads a little awkward . I think the intent is there but . Conrad: Any other comments? Emmings: Yeah . I don 't understand the first sentence of Paragraph 7 . Olsen: I think that 's where we 're saying . Emmings: It says access , vehicular access on fill through a wetland will only be considered when the access must be for vehicles . You 've already 11 said it 's vehicular access . Olsen: Right . 1 Planning Commission Meeting 11 September 19 , 1990 - Page 12 Erhart : Oh , oh , oh , oh yeah . Okay . ' Olsen: What if we put the walkway elevated 6 to 8 inches at any given point that occur above the ground level or ordinary . ' Conrad: I really think staff can work the words out . Batzli : I think you want to say , it 'd have to be 6 to 8 inches above the ordinary high water mark and 6 to 8 inches above the ground level when installed above the ordinary high water mark . That 's what you 're trying to get across . Olsen: Right . But do we need to specify that that 's only within wetland above the ordinary high water mark or do you think that 's clear? ' Emmings: Sure it is because you 're talking about access through a wetland . Olsen : Okay . Conrad: Can 't the City Council read these Minutes . ' Batzli : I think you want to emphasize that it 's 6 to 8 inches above the ordinary high water mark and a special case when you 're above ground above the ordinary high water mark . ' Emmings : That will do it . Make a motion . Batzli : I move that the Planning Commission recommends approval of Zoning ' Ordinance Amendment amending Section 20-409 as the staff has in Section 6 and 7 except in paragraph 6 it will be rewritten to read that the dock or walkway is elevated to 6 inches to 8 inches above the ordinary high water ' mark and 6 to 8 inches above the ground level when above the ordinary high water mark . ' Erhart : When being installed in a wetlands . Emmings: That 's already there . ' Batzli : When being installed above the ordinary high water mark and shall be a maximum width of 6 feet . In paragraph 7 , vehicular will go away . And did you have another change Steve? That 's the end of my motion . Emmings: Second . Batzli moved, Emmings seconded that the Planning Commission recommend approval of Zoning Ordinance Amendment to amend Section 20-409, General Development Regulations of the Wetland Ordinance regulating access through Class A and B wetlands amended to delete the word 'vehicular' out of ' paragraph 7 and with paragraph 6 reading as follows: 6. The dock or walkway is elevated 6 to 8 inches above the ordinary high ' water mark and 6 to 8 inches above the ground level when above the ordinary high water mark and shall be a maximum of 6 feet in width. All voted in favor and the motion carried unanimously. I