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PC Minutes from 09.20.2022CHANHASSEN PLANNING COMMISSION REGULAR MEETING MINUTES SEPTEMBER 20, 2022 CALL TO ORDER: Chairman von Oven called the meeting to order at 7:00 p.m. MEMBERS PRESENT: Eric Noyes, Mark von Oven, Perry Schwartz, Ryan Soller, Edward Goff, Kelsey Alto. MEMBERS ABSENT: Erik Johnson. STAFF PRESENT: Sharmeen Al-Jaff, Senior Planner, Kate Aanenson, Community Development Director; MacKenzie Young-Walters, Associate Planner; Erik Henricksen, Project Engineer, Joe Seidl, Water Resources Engineer, Jill Sinclair, Environmental Resource Specialist. PUBLIC PRESENT: Maria and Andy Awes 581 Fox Hill Drive David Bieker Denali Custom Homes Seth Loken Alliant Engineering Francesca Landon 620 Fox Hill Drive Paige Will 581 Big Woods Boulevard Deeann Hale 600 Fox Hill Drive Ella Hale 600 Fox Hill Drive Gary Renneke 3607 Red Cedar Point Road Jada Sanders 3609 Red Cedar Point Road Dave Bloomquist 8800 Powers Boulevard Mark Bliss 7333 Hazeltine Boulevard PUBLIC HEARINGS: 1. 581 FOX HILL DRIVE: RECONSIDER A REQUEST FOR APPROVAL FOR SUBDIVISION OF 2.47 ACRES INTO FOUR LOTS AND ONE OUTLOT WITH VARIANCES Senior Planner Al-Jaff gave a presentation on the item, noting the application is for a subdivision of 2.47 acres into four lots and one outlot and a 50-foot right-of-way variance where the City requires 60 feet. The Planning Commission reviewed and tabled action on this item on July 19, 2022 with direction for the Applicant to reduce tree removal on the site. The four lots meet the minimum requirements for lot area, depth, and width of the single-family residential district. Engineer Henricksen spoke about staff’s recommendation for the dedication of right-of-way to meet the surrounding neighborhood at 50 feet, which is the reason for the variance. Based on comments received, he wants to clarify right-of-way versus roads: right-of-way is an easement Planning Commission Minutes – September 20, 2022 2 area but is not the actual street width itself. The updated materials from the Applicant addressed all right-of-way dedication on the resubmittal. Mr. Henricksen spoke about the history of the development, street connectivity, and the 50-foot right-of-way easement. Water Resources Engineer Seidl spoke about the proposed drainage design which largely maintains existing drainage patterns on the lot with stormwater routed to an existing wetland that naturally overflows onto the public roadway and across Carver Beach Road where it is captured by public infrastructure and routed to downstream BMPs and then to Lotus Lake. He noted there will be four underground infiltration BMPs to treat and discharge the stormwater. Environmental Resource Specialist Sinclair noted this is a heavily wooded site with 95% canopy coverage and is a mix of red oak and sugar maple. For low-density residential City Code requires a minimum of 55% coverage be maintained after development. The Applicant is proposing to have a 38% coverage after development which is allowed by Code. When a developer goes below the minimum amount required they take a penalty of 1.2 times the difference between the required minimum and proposed minimum. When that calculation is done it is divided by standard square footage for a tree which is 1,089 square feet. The developer is going below the minimum required but is replanting trees and by replanting those trees they bring the minimum required back up to 55% according to the City’s calculations. The Applicant was asked to find ways to preserve more trees and saved canopy cover on Lot 2 by moving one BMP underground and Lots 1-3 have tried to minimize tree removal as much as possible. Ms. Sinclair spoke about a proposed conservation easement area on the property to protect trees. Ms. Al-Jaff spoke about parks serving the site and noted the Commission has the option to receive additional comments from the public. Staff recommends approval of the application, noting it meets all requirements of the subdivision and zoning Ordinance regulations. The variance for right-of-way was directed by staff to reduce the amount of overall grading and remain consistent with characteristics of Carver Beach. Commissioner Alto asked why there is a need for the road to go through the middle of those lots. Engineer Henricksen showed a slide on screen demonstrating the lack of connectivity for emergency services in the area, as they do not have a redundant way to get to residents along the corridor if there was an emergency. He noted they usually want redundancy in case there was a failure or a tree down blocking a road. Fire and Emergency services plans for the worst and since 2005 it was recognized that having a street here would provide a redundant access. Commissioner Schwartz asked Ms. Sinclair about the conservation easement bleeding over onto Lot 2 and Lot 3, which would be private property, and asked over time how do they protect that conservation easement from future owners. He asked if there will be some markings, a fence, or something to identify the space. Ms. Sinclair replied in the affirmative noting in the past the City has required developers to put up signs saying it is a conservation easement, it is also on building permit surveys, copies are sent to homeowners, and many times in neighborhoods that legacy is also verbally passed on. Planning Commission Minutes – September 20, 2022 3 Chair von Oven asked about trees and whether someone could raze the entire site and plant their way back to the minimum. Ms. Sinclair noted technically in a subdivision one could. If a property starts under the minimum, such as a two-acre lot with a couple of trees in the middle which were cut down, they essentially clear-cut the lot. Therefore yes, one could go all the way to the bottom and work their way up. Commissioner Schwartz asked about the minimum caliper inch for the replacement tree. Ms. Sinclair noted it is 2.5 inches diameter. Commissioner Soller asked about the redundancy of the road and asked, until the physical street could be built, what is the point of the right-of-way. Engineer Henricksen noted if the City does not secure the right-of-way easement at the time there is no opportunity to have it; it is baked into the subdivision. If it was stricken from this application there is a 99% chance the City would never obtain that to meet a future connection. Maria and Andy Awes, Applicants, purchased this lot hoping to build their dream home. They have invested a lot of time and energy into making this a perfect place and noted they very much love the trees, and even tapped maple trees this year. They have done everything they possibly can to save as many trees as feasible and Ms. Awes walked the woods with Ms. Sinclair and thinks there can be some benefits to planting some new generation growth and planting new trees for the future. She noted if the road was not there they could increase the tree canopy by 8% and it is difficult because they are a couple with a small subdivision and they are being asked to build a road, pay for the road which is very expensive, and they are trying to do their very best to please everyone in this situation. They are trying to navigate all of this as best as possible and have worked very hard to try to get to this point. Mr. Awes knows there are concerns in the neighborhood about the number of trees and he wishes there was a way to save more trees and noted not requiring that road is a way to save more trees. He noted there is no redundancy now, there will not be a redundancy after they build it, and there may never be. He would still be willing to give the right-of-way if they did not have the requirement that they must cut down trees and lay asphalt now. Ms. Awes said many factors go into this and there were utilities stubbed for four properties before they even got to this point. The parcel is longer than the opposite side of Fox Hill with fewer homes, and a dedicated wetland and conservation area. They are trying to do their very best. Commissioner Schwartz said assuming they could get fair market value for the property, would the Applicants consider selling it to the County, the City, the nature conservancy or another organization that would preserve 100% of the canopy. Ms. Awes thinks there are a lot of factors as there are other people who want to live there and have been planning for that. Planning Commission Minutes – September 20, 2022 4 Mr. Awes noted there is also the question of all the time and money they have already put in at this point. He stated they also want to live there. He spoke about three lots versus four lots and feasibility of making things work and noted at that point they may not have a choice but to consider that option. David Bieker, Denali Custom Homes, would like to answer some questions from the letter turned in by homeowners south of the property. The type of homes to be built will be 1.5 stories or 1 story and he showed examples on screen noting if another developer came in they may put in two stories to maximize what they can get out of the properties; that is not what the clients are requesting. He shared lot sizes of .66 acres, .34 acres, .52 acres, and .41 acres, noting most are significantly larger than 1/3 acre lots. Regarding water runoff, they have been working with Alliant and they do not want to impact anyone outside of the property they are working on. Regarding the road, none of them want the road, everyone is willing to give the right-of-way, everyone loves the trees, and it could potentially be a very long time until that road is of any use to anyone. He understands the economics of asking for a road to be built now as it will cost more in the future, however they do not know how long that will be. He hopes the Commissioners will consider this project and noted the Applicants own the property, they have a right to develop the property, have met all the requirements with a small variance for a road they do not want or need, and they will replace the trees. He spoke about tree counts versus canopies and noted the percentage differences. Commissioner Schwartz noted the road is for safety purposes and assuming the road was not built and a fire occurred or someone had a heart attack, who would Mr. Bieker hold to account that an emergency vehicle could not get to the property in time to save a house or save a life. Mr. Bieker would answer that by saying when the road is able to go through all three properties (two other property owners have to decide to develop and decide to give up part of their land) but until those two properties do anything, whether the road is there or not does not affect anyone’s safety. They will not have the redundancy they are looking for. To him, it would make more sense to dedicate the area, make it available for the future, have money escrowed for that road to be built sometime in the future, but not to build a road until they can actually build it all the way through as it is not helping anyone at this point. Commissioner Schwartz asked Engineer Henricksen if it is possible to escrow money based on the engineering estimate for the cost of the road plus 5-10 years out, accounting for inflation, so instead of dumping $45,000 for what the road will cost today they would require $60,000 or $75,000 and if it only costs $70,000 they would get back $5,000. Mr. Henricksen has not seen that occur within the City and historically he has not seen an attempt to try to estimate a timeline of when a street might go through. The practice of constructing a street prior to connectivity happening is not extraordinary as there are multiple examples within the City where street connections are stubbed and extended to the property line to facilitate future development. It has been common practice for many years. Planning Commission Minutes – September 20, 2022 5 Seth Loken, Alliant Engineering, asked to address the concern about the wetland by a citizen, he noted most of the perimeter of the wetland is at elevation of 949’ and the EOF for the wetland at existing occurs at a 949.45’ allowing for runoff to occur almost immediately. There is not a lot of ponding depth in this wetland and the elevations on the south side are 956’, 954, 952’ so in order for it to flood up and go to the property on the south it would have to flood up six feet. They will continue to work with City Staff to improve the condition of the road overland. He shared that they proposed to move the stub road to the east to allow for maximum tree savings noting if they keep the red line shown on screen there is a 25 foot wetland buffer, 30 foot wetland setback, and a 30 foot front setback which more or less makes that lot undevelopable. He also noted looking at trees from a caliper-inch perspective versus tree canopies, they are more in the range of 45% tree savings versus the 38% canopy cover with the road. Chairman von Oven opened the public hearing. He stated to the public, if they have already made a comment at a previous meeting, the Commissioners have pored over the notes from the last meeting, and if they have comments on new information or on the changes he would like to hear those. Paige Will has been friends with Andy and Maria for 17-18 years, they are wonderful people, wonderful neighbors, and she has no doubt that they will do an amazing job if they are allowed to go forward with this development. That said, living on Big Woods Boulevard, Ms. Will has concerns about the road. She noted they enjoy living on a quiet cul-de-sac, there are lots of kids there, it is a neighborhood without sidewalks, very narrow roads, and she thinks in putting that road in, it does not make sense to do it prematurely. She noted if they are willing to put it in paperwork and put it in escrow it makes sense to do that because it does not make sense to add more pavement to the neighborhood, dig up more of the neighborhood, and most of the people in this room are very passionate about the neighborhood. Ms. Will stated she lives on a conservation easement and takes that very seriously, however she does not think it makes sense to put the road in right now. Francesca Landon is happy to hear that nobody wants the road. She knows that both of the people that live along the lake are not interested in a road, either and asked for clarification regarding the road, when they say “when those roads are developed” does that mean physically developed or when there is change of ownership? Mr. Henricksen clarified that means the property owner (current or future) would have to come to the City and go through the development review process to subdivide. It would have to be a willing property owner who wants to subdivide their property. Ms. Landon spoke about drainage and pointed out on the slide shown as the water comes down by the fire hydrant, the drainage systems are a little above the “G” shown on screen. She has concerns about the water flowing to the bottom of the street and flooding that area. She is also deeply concerned about trees only going from 35% to only 38% and was hoping for a better solution. Deeann Hale, 600 Fox Hill Drive, was talking to the owner of the property that Ms. Landon was just speaking about and if they get a good rain it comes down his gravel driveway and goes into Planning Commission Minutes – September 20, 2022 6 his backyard which has been flooded. The owner was concerned and unfortunately could not be here tonight but asked her to please share about the runoff because that will be a problem. He also spoke about the lift station noting when they put in Big Woods there was a problem with it and they had sewer drainage into Lotus Lake. Ms. Hale’s disappointment is that the City told them to come back with 55% tree coverage and they came back with 36% with a planting of 19 trees that are 2.5 inches. She thinks the Commissioners have received information from someone who belongs to the Sierra Club and she and her husband went out to measure the diameter of many of the trees, and many are well over 100 years old encroaching in to 200 years. The increase of trees on the plot shows most of the increase around the conservation area which is not where most of the legacy trees are. She wishes the owner would try to preserve some of those, although she knows in building a home one does have to take down trees, she thinks they need to pay special attention to some of the trees that are old and beautiful. Ms. Hale asked about the rest of the people who live on the lake? What happened to being neighborly and talking to a neighbor about this? She would be very upset if she lived on the lake and it affected her possibility of getting as much as she can when she retires and moves away. In cutting away some of her land, what is she to do? From what Ms. Hale understood from the woman who sold to the owners, they were going to be good stewards of the land and try to preserve as much as they can but she is not hearing that. Commissioner Noyes asked about the neighbor with flooding concerns. Is he asking that the problem is fixed, is he more concerned that it will be made worse, or is he trying to bring attention because it needs to be looked at? Ms. Hale replied he was concerned that it would make it worse for him. Ms. Awes noted the tree percentage was actually 38% and 3% may seem like a small amount to some people, but she noted they have tried to work with every single thing they could relating to the Watershed District requirements, and all the other requirements to get to that percentage. She noted they are sort of hamstrung with the road and stated there is nothing they can do about that big piece. It is a little disturbing for Ms. Awes to hear that someone trespassed on their property to measure the size of trees and noted that is an issue for her. They really just want to be good neighbors for everyone and she wants to restate that it was recommended for approval before, the Applicants have done even more, it has been recommended again, and they are trying so hard here. Ella Hale stated when the house was sold, Bob’s widow had the art sale and she bought his father’s life story that he used a typewriter to write it on. She read part of it and assures the Commission that this was never supposed to happen or be developed like this. A lot of these trees are sugar maples which is what the town is named after. If they destroy the trees they will never see them again in their lifetime. When the Applicants bought the property they said they were trying to conserve it and she had turned down other offers from people trying to develop the land because she did not want the whole place to get pimped out like it is now. She cannot explain why one would put four homes on such a small plot and then pimp it out to all their friends to make it cheap for everyone. She stated the owners plead their case to the Commissioners but they should really “be talking to us because you are going to have to live among us and you are not welcome here.” She noted they are threatening her home and it is just Planning Commission Minutes – September 20, 2022 7 sad with all the trees and animals that will be displaced, she noted every year they have a family of deer, turkeys, fox, and many animals and now that place will not be special and will not be a home anymore. She asked how they can call it Lotus Woods when there will not be any trees at all, she wishes the Commissioners could look at this and see that maybe this is not the right thing. If the owners really wanted to conserve they would just build a lake house and then sell the rest to conserve it. Mr. Awes clarified they were never misleading anyone about their intentions regarding the property. In the marketing materials, the previous owner put forth that this land was a potential for subdivision, it was in the real estate materials and she knew very well what their intentions were when they purchased. Ms. Will spoke about tree conservation noting trees have died on her property and Ms. Sinclair came out to her property and they had a great discussion. She learned that sometimes by taking out an old dead tree that is not thriving they can help some other trees thrive and open up sunlight. When she walks through the neighborhood she observes a lot of trees in the area that are going down and noted Texas Governor Abbott is paralyzed because a tree fell on him many years ago. She worries about the old trees in the neighborhood that are coming down naturally and she thinks there is an obsession with saving the trees but there is some natural tree loss on a regular basis in that neighborhood. Ms. Will thinks this is good to consider when talking about trees, replanting and taking some out will potentially make some of them grow. She noted there are plenty of saplings all over and she does not think they have to worry about trees replicating themselves there. Chairman von Oven closed the public hearing. Chair von Oven asked if developers are in any way required to provide a conservation easement. He asked if that was a requirement or a choice. Ms. Sinclair replied there is nothing in the City Code that requires a conservation easement. They usually come about between City Staff recommending it because there is a desirable, healthy stand of trees. Sometimes the developer offers it because they know they can protect the trees and it helps their overall canopy cover. She noted it is not required. Commissioner Schwartz acknowledged that the Applicant have increased the canopy, even by 3%, is a lot. In his perspective it is not nearly enough, however they are in compliance and so everyone in the room understands if a property owner is in compliance there is little if nothing the Planning Commission or City Council can do to prevent the property owner from doing what they want on their property. If there is someone to point the finger to in his perspective it is the City of Chanhassen for not requiring a greater amount of trees to be preserved on a piece of property. He noted once those trees are gone they are gone forever and the nature of that neighborhood will be significantly changed. That said, Commissioner Schwartz is sure these Applicants will do the very best job to build on their property the nicest homes they can and make it a pleasant thing. Planning Commission Minutes – September 20, 2022 8 Commissioner Soller wants to talk about a main point in a letter received on September 16, 2022 speaking about the impact of the right-of-way on the potential future value of their properties, especially if taking the yellow route rather than the red route on screen. He noted it really does seem that they are cutting into that property’s future value in terms of the size of the lot between the right-of-way and the lake. He asked if the City gives consideration to potential negative impacts to that property owner. Chair von Oven said if he refers to the property just south of Fox Hill as “property 2” the dotted lines are considered a ghost plat, meaning that right-of-way never exists if the owner of property 2 never decides to subdivide their property. If and when the owner of property 2 decides to subdivide they come before this Commission in the same way that Fox Hill Drive is coming before them tonight and they will have a very similar discussion about where and how the right- of-way should go. Should they never decide to subdivide, this road never actually exists, therefore the effect on their property from a value standpoint is if and when they decide to sell it they are probably required to disclose the ghost plats. Ms. Al-Jaff replied typically if one can demonstrate these parcels have the potential for further subdivision that could be an added value. Mr. Bieker noted one opinion and stated the top of the subdivision shown on screen where the yellow is, they are building a dream house so there is plenty of room to the east to build a nice house. If it was red they are getting into the wetlands and by moving it to the east it is giving a bit more room if they did want to subdivide. Commissioner Noyes does not want to see big trees cut down, however in his role as a Planning Commissioner he does not get to make the judgment as to what is desirable or undesirable. He thinks big trees are more desirable but this plan is within what is allowed by City Ordinance. He appreciates what the neighbors want and has empathy for them, however when one buys a property like this they also get the right to develop it. This is one of the things that is great about the City of Chanhassen, they allow people to develop their properties. From what he has heard tonight the Applicants have a thoughtful plan and are trying to be good neighbors and take into account everyone’s input. The fact that there is a conservation easement shows that these trees are front of mind for the Applicants and that is a good thing. Is Commissioner Noyes impressed with 38%? No, but he has seen the property and understands the limitations. He thinks the whole road thing is ugly, it is a beautiful property and having the road go through is ugly but his opinion is that it is never going to go through because the owners of the other lots get to determine if the road ever goes through. If they do not like it, they say they will not subdivide, but if they decide to subdivide they will probably be happy that they can at least push towards having a road go through. Commissioner Noyes noted a comment from someone about one developer’s plan and the effect on the value of their property, he understands that but the reverse is also true. Their opinions are affecting the owners of another property here because they do not want the development and it is a two-way street. Commissioner Goff asked about the road and what happened in the Lotus Woods subdivision because it looks like they have a skirt and a stub. He asked if the water is underneath or not. Planning Commission Minutes – September 20, 2022 9 Mr. Henricksen replied the water main was extended to the property line. There is a temporary hydrant there. There is also sanitary sewer. Commissioner Goff noted the homeowner used that stub as their driveway. Mr. Henricksen replied in the affirmative, their driveway is accessed through there. In the Lotus Woods subdivision they showed a grading concept that ensured when the road went through they would have an adequate connection with their driveway. Commissioner Goff asked if, instead of putting the road in, could they just put a skirt and a stub on the Fox Hill subdivision. Mr. Henricksen replied they could construct a temporary intersection to indicate a future road connection. He noted the reason Lotus Woods did not extend the street was due to grades and the ability to extend the street and not encroach onto surrounding properties. Commissioner Goff agreed if those two homeowners never decide to subdivide this may never happen. He asked why they want a road to nowhere? It would be suggestion to just put a stub in and he is trying to see if they can minimize. Mr. Henricksen noted municipal services usually get extended. With streets there is a practice where if it is not reasonable to have the street stub extended to the property line it is escrowed similar to Lotus Woods. He defers to past comments and the staff report regarding impacts and complications. Chair von Oven asked if the property he previously referred to as “property 2” was before the Commission tonight, would the City be asking the property owner to build a small street that ends on both sides of the property? Mr. Henricksen would defer to fellow staff members but noted that could be deemed a premature subdivision because they would not have adequate access to the extension of the public street. Chair von Oven noted these two properties might run into barriers to subdivide because the outside properties had not subdivided yet and done the work they are trying to do tonight. Ms. Al-Jaff replied that is correct. Mr. Henricksen noted precedence was probably set with the Eidsness metes and bounds subdivision which then granted the easement and set in motion the idea of the planned development. Ms. Al-Jaff stated they extended utilities, as well. Commissioner Schwartz is curious about how the Fire Chief, Sherriff, and EMTs would weigh in on the value of this road from a health and safety perspective. He gets that the road is ugly and is a road to nowhere right now. His understanding is that neighborhoods need redundant access Planning Commission Minutes – September 20, 2022 10 because if access is limited to one way in and one way out, in the event of an unpredictable catastrophe, it seems that the City is being thoughtful and reasonable in wanting to ensure the health and safety of residents by requiring redundant access. He is struggling to understand why there is objection. Chair von Oven does not think anyone here is objecting to, if all four of these properties were to subdivide, that they need a road cutting through for the health and safety of everyone. They are discussing that while the City may require the right-of-way in this property, do they actually have to build the road because the road serves no purpose until it is connected. The road is valuable if and when it exists but it can only exist if all four properties subdivide, come before this committee, and go through the process. Commissioner Schwartz asked Mr. Henricksen if it is correct that the only way this road will be built is if the other two properties south of Fox Hill Drive decide to subdivide. Mr. Henricksen replied 99.9% yes. There is always the ability for the City, if a right-of-way is in need (he noted the City does not practice this), to have right-of-way grabs where they can take the right-of-way and construct the street if there is a need. However, that is not a practice in the City of Chanhassen and he cannot recall on a local street scenario where that has happened. To answer the question, yes, it would require the subdivision of those lots to the south. Commissioner Schwartz said assuming the road was built through the Fox Hill Drive subdivision and stopped that short road would not allow redundant access because it would not connect with Big Woods Boulevard. Mr. Henricksen replied in the affirmative, the intent is to connect Fox Hill Drive with Big Woods Boulevard. Commissioner Soller acknowledged that this is not extraordinary and he has seen a ton of developments but many times these happen in corn fields and other places. He wants to continue to acknowledge the unique and special characteristics of the neighborhood. That being said, breaking this down, the recommendation on screen is the approval of the plat to subdivide, the variance of the 50-foot public right-of-way, and noted there is nothing in the recommendation referring to the actual construction of the road. He asked if it is in the purview of Planning Commission to add language to recommend against the construction of a road until it can go all the way through. Commissioner Alto thinks it is and that is her problem with the road itself, it is a waste of time, money, and resources for something that could possibly not happen. Why would they build and let something decay that may never connect which the City would then have to pay to fix, to then connect. She also has an issue with collecting $45,000 from someone and letting it sit in a City account potentially forever. What happens to that money if people never decide to subdivide? Why is the City collecting that when it does not impact those houses at all and does not impact their safety? Yes, getting the easement from the property owners is a recommendation; they should get it and leave the trees there. Commissioner Alto does not agree with the collection of the money, although if that is the way the City does it, if it is in the City Code that is fine, and if Planning Commission Minutes – September 20, 2022 11 the Applicants just want to pay and be done to move on that is okay, also. That is her two-cents, she does not agree with either of those practices. Chair von Oven noted they can absolutely put language in the recommendation to the City Council who makes the final decision. He noted Commissioner Alto would just add that language to whatever she believes the right motion to be. When he read the packet and saw the number went from 35% to 38% he reflected on it and went through the notes, coming back to the realization that this committee, whether they were here or not the last time they adopted the City plan, is responsible as they are the ones that adopted it and said it is okay to go from whatever tree cover one is at down to completely nothing as long as they plant some. That said, he does not know that the Planning Commission has the right to tell a property owner that they do not like that number because built into the plan is a recourse for when they do not like that number. Chair von Oven is overly appreciative that they got to 38% and is sure it was no small feat. He likes 46% better and there is no route where he would say to forget about the right-of-way as it is not needed; however, the big question is: do they need to build it right now? He does not know what will happen at City Council and thinks the Planning Commission could come to an agreement such as securing the right-of-way but it does not need to be built, escrowing the money and there can be a special assessment in the future to pay for it, but he is very curious to see what City Council will do with it. He believes securing the right-of-way is the right plan but he does not think they must take that extra step now, and he thinks it is a nice way to exhibit that they do believe this is a different and exceptional place. It does not give them the right to take away rights from developers but it does give them the right to add language to say “can we treat this one a little bit differently.” He asked Ms. Aanenson if they can add language to the conditions of approval regarding the road. Ms. Aanenson replied in the affirmative. Chair von Oven clarified they can add language to the conditions of approval that get at the spirit of securing the right-of-way but not forcing the construction at this time. Commissioner Noyes would be much more comfortable with the Planning Commission making sure they have heavily noted their concern about building this road at this point in the process and making sure City Council is aware of that to take it under advisement that the Commission thinks it is a bad practice. He noted there may be other reasons why this may be considered and he does not think they should stop the project because of this road. He wants to save the trees and likes 46% also but does not feel he is in the position to write something that is technically accurate. He would rather make the City Council strongly aware of Commissioners’ position. Commissioner Alto agrees. She does not want it to go, and if the condition is not agreeable to City Council this comes to a stop. She noted if there is a way to not built right now or to evaluate the escrow portion as well, she would strongly advise City Council to reconsider the City building at this time. Ms. Aanenson suggested making the motion and then adding to that motion that the Planning Commission would like the City Council to consider Commissioner Noyes’ comments regarding the handling of the right-of-way. Planning Commission Minutes – September 20, 2022 12 Chair von Oven asked if that would be part of the motion or separately. Ms. Aanenson replied it would be after they make the motion, they would add that the Planning Commission would also like the City Council to consider the following. Commissioner Schwartz wants to be sure the language is accurate and appropriate and asked if the City Attorney or staff needs to look at this further to get the exact language down. Chair von Oven noted this is a recommendation and ratification of whatever language happens at the City Council level. Commissioner Alto moved, Commissioner Soller seconded that the Chanhassen Planning Commission recommends approval of the preliminary plat to subdivide 2.47 acres into four lots and one outlot and a variance to allow a 50-foot public right-of-way (ROW) as shown in plans, received September 1, 2022, subject to the conditions of approval and adopts the Findings of Fact and Recommendation. The Planning Commission would like to note that they recommend City Council evaluate the requirement to build the stub/right-of-way at this time versus waiting until there is an actual need. All voted in favor and the motion carried unanimously with a vote of 6 to 0. 2. 3609 RED CEDAR POINT ROAD: CONSIDER A REQUEST FOR A SHORELAND SETBACK AND OTHER VARIANCES Associate Planner Young-Walters gave the staff report on the item, noting the Applicant is requesting a 22.3-foot shoreland setback variance to accommodate the construction of a single family home. If decided by less than a 3/4 majority of the Planning Commission the item will go before the City Council on October 10; if decided by 3/4 majority or higher and not appealed it will be decided in four days at the close of the appeal window. Mr. Young-Walters noted it is a riparian property, located on a peninsula with lakeshore on two sides, these properties have a 20,000 minimum lot area, 10-foot sideyard setbacks, 75-foot shoreland setback, 25% maximum lot cover, structures are limited to a 35-foot maximum height and are permitted one water- oriented accessory structure (WOAS) which can be set as close as 10 feet from the ordinary high water level (OHWL). This parcel is 16,501 square feet with 13.4% lot cover, a non-conforming 4.5-foot west sideyard setback, a non-conforming 65-foot south shoreland setback, a non- conforming 79-foot lot width, a private street bisects the property, and a portion of the northern lot is located within the floodplain. The Applicant proposes to demolish the existing home and build a new single-family home on the parcel, they will bring the non-conforming 4-foot sideyard setback into compliance, they feel the variance is similar to what has been previously granted in the area, and the building area is constrained by the two shoreland setbacks. Mr. Seidl noted findings that there is adequate room on the property to build a home that would meet all setback requirements. As such, Water Resources and Engineering cannot support the requested variance. He noted it would reduce the size of the home being proposed. He stated stormwater treatment in the area is deficient and there is a proposed project in the Capital Improvement Program that will invest public dollars into constructing public stormwater