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PC 1993 06 02CH~NH~SSEN PL~NNIN6 COIglISSION REGULAR MEETING JUNE 2, 1993 Chairman Batzli called the meeting to order at 7:40 p.m. MEMBERS PR~~: Diane Harberts, Ladd Conrad, Matt Ledvina, Joe scott, Brian Batzli, Jeff Farmakes and Nancy Mancino ST/~FF PRESENT: Kate. Aanenson, Senior Planner; and Dave Hempel, Asst. City Engineer pUbLIC ..Hi,RING: NON-CONFORflING iiSI[ PERMIT FOR COLONIAL ~ HO~I[~ ~OCI~TION RECREaTIONaL 8E~CHLOT. THE PERMIT SH~LL DESCRIBE THE N~TURE ~O EXTENT (~=. THE USE ~LLOWED. Public Present: Name ~k~r~ Jeff Kvichaug Harold & Kathy Dahl Art Bofferding and Phyllis Pope Bofferding 668i Horseshoe Curve 6631 Horseshoe Curve 620 Carver Beach Road Kate Aanenson presented the staff report on this item. Chairman Batzli called the public hearing to order. Batzli: Is the applicant here tonight? The applicant for Colonial Grove is not here tonight? Is anyone here who would like to address the Commission on this issue? Yes, please come forward. Phyllis Pope Bofferding: My name is Phyllis Pope Bofferding and I live on Lotus Lake. 620 Carver Beach Road. Would like to speak against going back to any more boats or any boats at that dock. ! think the lake is already over crowded. The size of boats that we're seeing on the lake today are much, much larger than in 1981 or even several years ago. It's a hazard to go out. We haven't had any nice days this year but the first nice day, I think you take your life in your hands going out on that lake and I would hate to see any higher level of useage than there is right now. Batzli: Would anyone else like to address the Commission? Jeff Kvichaug: I would. My name's Jeff Kvichaug and I live at 6681 Horseshoe Curve on Lotus Lake. I'd like to go on record also opposing the non-conforming use permit that's been applied for. It seems to me that when they applied for this, given the facts and circumstances that have surrounded it thus far, the burden of proof rests with the applicant to prove the amount of boats that were moored or stored overnight there back at the 1981 survey. At that point in time. I don't think that that question has been proven at this stage through the application or the information that I have available. The applicant isn't here tonight to discuss it. And I think the Planning Commission has made a pretty regular basis or Judgment that they have to have a pretty sound basis for not following the survey that was taken in 1981. Again, I'd like to reiterate Planning Commission Meeting 3une 2, 1993 - Page 2 the fact that what a previous person said is that there's a lot of boats on Lotus Lake already. And I Just don't think it'd be good-precedent to set with the amount of homeowner associations that we have on the lake to start amending those standards that we have adopted. Batzli: Thank you. Nould anyone else like to address the commission? Harold Dahl: My name is Harold Dahl at 6631'Horseshoe Curve. I'd also like to go on record opposing any additional boats on Lotus Lake at this place. I'm concerned in terms of setting precedent. I believe that there are approximately 7 other beachlots that could be effected by this precedence if we allow Colonial Grove to have boats docked at their site without a proof or evidence that they had already had a non-conforming use permit that covered that property. So when I moved on the lake several years ago, that lot, outlot had already had boats stored there. From my perspective I don't really care if the boats are there or not but I'm very concerned about the precedence that it might set in terms of any other outlots that might come and ask this commission to provide for space for them as well. So primarily precedence. Harberts= [ have a question. Do you have a boat? Harold Dahl= Yes. Harberts= And how do you store and how. do you get your boat to the lake? Harold Dahl: I put it on the public access and I store it at my home. Harberts: Okay, so you go do~n TH 101 to that public access? Harold Dahl: Yes. Batzli: Thank you. Is there anyone else who would like to address the Commission? Is there a motion to close the public hearing? Conrad moved, ~ott ~cor,:Wd t.o clo~ th~ public hearing. AIl voted in favor and the motion carried. The public hearing ~as closed. Farmakes: ...spent more time on this than is necessary. Ns'ye discussed this, this is the second time. I'm going to maintain that the boat launch is an expansion of the use. I think it's clearly an expansion of use and should be denied. 45 foot dock was in place. It seems reasonable to me. That could handle a couple of small boats. ! don't have a problem with the 2 boats docking. It seems reasonable that that size dock could handle that. The fact that those boats may have been out on the lake, I'll buy that. Batzli: Are you referring to Colonial or Schmid's there :elf? Farmakes: Pardon? Batzli: Are you referring to the Colonial Grove at Lotus Lake or $chmid's? Farmakes: I've got Schmid's here. . Planning Commission Meeting June 2, 1993 - Page 3 Batzli: Okay. Colonial Grove is in front of us right now. Farmakes: Nhy don't you pass on to the next. Batzli: Okay, Nancy. Mancino= Kate, do any of the, can you tell by any of the inventories, these beachlot inventories, whether a boat has been there overnight? mean do they, there's no way of. Aanenson: I did the one in '91 and I'm assuming that the one, that the way they've done it is someone went out .during regular city hours and went and saw how many boats were at 'the dock. Nhether it was a sunny day and all the boats were in the water or not. Mancino: So it's during the week. It's not on the weekend and all that kind of stuff? Aanenson: Yeah. ! can just give you the date. Mancino: Okay. So we have here that in 1981 that they had 3 boats docked. ! have no problem with continuing that use in 1981 from now on. And that is that 3 boats can be docked overnight. That's all [ want to say. I'm in favor of 3 boats docked overnight. Batzli: Okay, thank you. Jeff, are you. Farmakes: Give me another minute here. Batzli: Joe, do you want to go ahead? Scott: Sure. Kate, which day, as far as day of the week? Do you have that info? Aanenson: June 6th. Scott: Pardon me? Aanenson: It was June, the '81 date? Scott: '81 and '91. Or if yOU have all three. Aanenson: '81 would have been June i2~h. '86 was July i4th. '91, I don't have the exact date. I believe it was right after Labor Day weekend. First part of September. Scott: That seems like we will be seeing probably every beachlot in the next however many months and I'd agree with Commissioner Mancino that we should maintain the level of useage and not expand it. So I would support maintaining it at 4, per the '91 survey. That's the end of my comment. Mancino: Oh, I said 3. I went back to '81. Planning Commission Meeting June 2, 1993 - Page 4 Scott: So we'll use, so from a precedent standpoint, then we should use and I'll go with 3. Use '81. ' Ledvina: Kate, in the background part of your report you say a non- conforming use permit was approved by the City in June of 1981. Now this is different from many of the other beachlots in that a permit was issued. Is that correct? Aanenson= Correct. Ledvina: Okay. So were there other non-conforming beachlots where a permit was issued or is this the only one? Aanenson: Some of them have conditional uses that meet the other criteria. That have enough frontage and have enough square footage. This one. is insufficient in square footage and frontage so I'm assuming that when they received this, it was kind of simultaneous with the non-conforming permitting process going through because they were in the process of subdividing that property. Ledvina: Okay, so they were under the spotlight because they were establishing this beachlot and the ordinance was coming into play during the whole. Aanenson: I'm assuming that. That's my best guess. Ledvina: Okay, so really if we take a look at this permit. I guess in my mind this permit represents the level of use that was allowed by the city and agreed to by the Homeowners Association. I guess your interpretation is that that no boats are to be moored. I think in this case that perhaps the survey is not a worthwhile piece of information because of this formal permit. Further in your report you state that the Planning Commission Minutes state that a conditional use permit would be required to dock boats overnight. Was that permit ever granted or applied for? ~anenson: Well, that's in 1980 when they were subdividing the property. So I'm assuming, and just drawing some conclusions here that in 1980, .when they were subdividing the property, it was noted that if you're going to have a beachlot there, you'd have to go through the non-conforming permit because the permit was issued in '81. Ledvina: Okay, so that's why. Aanenson: Right, there was a directive to go through the process. Ledvina: Okay. Rlright. Well I guess in general I feel that I would support the staff interpretation of that permit and view that as the, I don't know, controlling factor in this instance. And I would support no boats docked overnight. Batzli: So you're basing that on the non-conforming permit that they had and not the level of activity in 1981, which was our initial charter when we entered this exercise to determine. Planning Commission Meeting June 2, 1993 - Page 5 Ledvina: Right. Well, they may have had 3 boats at that dock but if that was not consistent with the permit, we shouldn't condone the use of that beachlot if that wasn't allowed. I guess this is different. I view this as different because there was that permit that was issued June 15th. When was the survey done? Aanenson: June 12th. During the day. It was during the day so no one's ever witnessed whether or not they're overnight. Batzli: Well it's my understanding, is it correct that they were prohibited from having a dock as well? Aanenson: No. If you look in the permit, it does say you can have a dock. It specifies 100 feet. Batzli: Where's that? Aanenson: Section, on page 3 of the permit.. Section 2.05. Where it's handwritten in lO0. Batzli: Why in 2.ll does it say no dock shall be constructed or erected? Anyway. Nice permit. Okay, was that. Ledvina= It's different than the other ones and ! think that because this permit occurred almost simultaneously at the survey, Z think this is a much more substantial piece of evidence in determining the appropriate use. I would defer to staff on their interpretation of this permit. Batz I i: 0 kay. Ladd. Conrad: Yeah, I agree with Matt. I think this supersedes the inventory. Z think based on the documentation that's been supplied, that the conditional use permit doesn't allow for overnight storage. Batzli: Okay, Diane. Harberts= I agree Matt and Ladd, and I don't have anything to add. I guess what Z'm not hearing is someone from the Association in terms of convincing us any different. We've heard from people in that area that' feel that they, well express their desire not to have it.approved so I'm going to concur. Ledvina: I have a question Mr. Chairman. Batzli: Yeah. Ledvina: Kate. Did the applicant.see this report prior to tonight? I presume they did and they know what the City's or your interpretation is and, okay. 8atzli: Okay, Jeff. Farmakes: Apologies for getting this switched around. But my comments are the same on both of these. I've always taken a position of '81. Unless Planning Commission Meeting June 2, 1993 - Page 6 there's a reasonable way to believe otherwise. In light of the conditional use permit, I will change my statement on that. It has always been my comment that if there's a dockage space of 40-50 feet, at least and they used a couple of boats. The boats didn't happen to be there at the time of the survey, it seems to be reasonable that there may be boats during the day out on the lake. So I've always allowed for that. If there's a conditional use not allowing overnight storage, it seems to me going back to '81, that those numbers are apparent... Batzli: I don't know. I look at this .and i really think to myself that', several boats is not an intense use of this particular outlot in view of it's previous history of having that many boats, regardless of whether the city had initially condoned it or not. I find it fascinating over the years that we go out and we do surveys and we find that there are boats out there and we don't do anything about it for 10 years. And now we say, well they didn't have the right to do that. Well, I'll give them the benefit of the doubt. We did surveys. It wasn't like we didn't know they were there. My feeling is let them have 3 boats. That's what they've been doing for over 10 years it looks like. Conrad: And as a lawyer, what do you think a legality? Basically you're saying, does that negate the contract that we have with them? Batzli: Well clearly there was you know, you can look at UCC law and say that, regardless of the written terms, you look to the actions of the parties which may modify the contract. And here we've known for over 10 years that they are acting outside the scope of the contract. Without a very intense use and I thought our initial purpose here was to determine what the level of use was in '81 and to I think in part determine Whether that's a reasonable use for the particular piece of property. Here, they've been acting that way. We didn't do anything about it. We acquiesced over a period of 10 years and I don't find it unreasonable, so. Conrad: Kate, were there complaints by the neighbors? Aanenson: I did get calls from people after this notice went out but, no. Conrad: There's probably never been complaints over the years by residents and then the only other thing that I would say is, have you looked at this area? And do you recognize that maybe the sensitivity and proximity to the creek and the lily pads and the habitat that's there. That is what's different about this and a 25 foot lake, that's what is different. 8atzli: But what's the difference between having 3 to 8 people mooring their boats there during the day and allowing 3 of them to park it there overnight? You're going to get traffic in and out of there. As a matter of fact, you're going to get additional traffic if you make them pull it out. I don't know. 8y allowing the boats there, they're going to park right on the dock so you're going to get the traffic in and out. If the issue is whether this will intensify the use by allowin~ 3 of them to be moored overnight, or tied to the dock. I shouldn't say moored. 8ut I don't know how that intensifies the use. Now we can talk about whether we're going to enforce the contract and if there's a waiver provision in there that says, you know, if we forgive your trespasses once that doesn't Planning Commission Meeting June 2, 1993 - Page 7 mean we're going to do it in the future, which is also a nice little legality. We can talk, you know we can take either side on that and we can argue it and let a Judge decide, if it got down to that. I don't know how strongly the applicant really wants to moor boats at the docks, since they didn't show up today. It seems that, counting noses here, we may have a 4 to 3 decision one way or another and that may raise their attention for when this goes in front of the Council. Conrad: The only last point is Brian, because the condition, the non- conforming permit that was granted didn't address, it didn't say you could. It didn't say you couldn't. Correct. $o legally, what do you think that means? Harberts: I think it's clearly two issues. You've got your permit here that says one thing and then you can take it to the next stage where you talk about what have been the actions...may not have done anything, were they aware of it? You know you can certainly argue that point but I don't think that creates the right to, you know cleazly when it's spelled in terms of what the permit said. I think that's the discussion point right here is, this is what the permit says. Is this what should happen? Scott: Well it seems like we"re focusing on. Harberts: I mean it's pretty black and white. Scott: I think we're focusing on intent and the way I take a look at this is that, there's plenty of things in here where it says you can't do this, you can't do that and you can't do that. The dock is 'fine, and I think most people would assume that a dock is going to be used for a number of different purposes. Perhaps keeping a boat overnight is one. Perhaps it isn't'. It specifically says no mooring buoys. But that's about as close as it comes and my interpretation of a mooring buoy is usually something that's out farther into the lake and maybe that was addressed because of the possible traffic problems with having boats out that far. They also say no swimming platforms, which I think would be in about the same sort of proximity. But there isn't anything in here that expressly forbids boat dockage overnight and that's kind of where I'm coming from. Because if it would have been forbidden, obviously they would have been here but then the survey would have had a little bit more meat to it I think. Harberts: Well and I guess Just to maybe belabor the point a little bit in terms of, you know the survey says 3, 7 and 9 and if we say okay, 3 is the threshold. What if we go out and do the survey again and in 1992 or 1993 they have 9 boats out there? Do we just, would 9 be the magic number then? Batzli: No. We go to 1981, and according to our charter here, we go back to 1981 and if they want more than was shown on our survey, they have to' provide evidence that it was there. What I think some on the Commission might be saying is that they will take that at face value because it's not expressly forbidden under the permit and since the applicant isn't here, they're going to be given the 9 that they requested since there was no evidence to say that there were actually 9 there being parked. I don't know if it's a good result. Rs Ladd said, this might not be a very good area but I don't know that, I don't know. I guess in view of Planning Commission Meeting 3une 2, 1993 - Page 8 the circumstances, the way I see it, I don't know why we would deny it based on no express language that said yOU can't do it. The fact that they've been doing it for lO years and I don't know they've really increased the intensity of, it looks like, at least this one record here of these Minutes indicate that several people have boats that they want to be parked at the dock. I don't know if they actually did it. Well, I mean how many boats are there Ladd? How long have you lived on the lake? Conrad: There's quite a few. Harberts: More than 3? Ledvina: Mr. Chairman. A question for Kate. What, i% you have it, what specific section were you referencing in the permit that states that, or where you draw your interpretation that no boats be docked? I gues is it just an overall thing that it doesn't allow or is there a specific element within the permit that leads you to believe that? Aanenson: Nell it says specifically that you can have a dock. It says that you can have a dock. Then it also says that under 2.08, no mooring buoys shall be placed upon the waters. No airplanes, seaplanes. And if you go through all the lists, it doesn't say you can have x number of boats at the dock which raises two issues. They came back in '84 and said if you want to go beyond that, you have to come back and go through the conditional use. They did come back in 1984 and got 2 canoe racks. The issue here is, if you look at the number of residents that belong to the association, which is the number of lots is 73 homes. {4here then do you draw the line as to what the maximum number of boats that can be at the dock. Where does it stop and that's the intent of the ordinance is to say that there is a maximum number of permitted. If there's complaints, we can go down there and say you're exceeding the number of boats that are allowed at that dock. We don't have a magic number of what the limit is. Scott: Nell I think we can talk about physical limitations because that's a very shallow, the lake's very shallow but it's very shallo~ there and a 100 foot dock, depending upon water level, is not going to give you enough draft to put boats in. And from, ! was down there a couple weeks ago and there is a physical limitation to the number of boats that you can have at the dock. Also, I don't think we should confuse...so I think there are some physical limitations and I always put more confidence in physical limitations than ! do on legal limitations because it seems like the physical ones will hold sway. Harberts: What does the City do to enforce the permit? Aanenson= How many boats, go out and inspect them. Harberts: And what do they do if there's more than 3 or whatever? Aanenson: Send the Association a notice that they're 'in violation of the ordinance. And if they don't rectify it, then we proceed to prosecute them for violation. Harberts= Has the City ever done that? Planning Commission Meeting June 2, 1993 - Page 9 Aanenson: Well we just issued them. This will be the first summer that we'll be inspecting them all. Batzli: Is there a motion? Mancino: I move that we approve that 3 boats be allowed-to be docked overnight at the dock. To be tied to the dock overnight. Scott: I ' 11 second that. Batzli: Any discussion? Conrad: Don't call the question yet. Batzli: I'm not going to. Conrad: I'm just thinking. That's tbs only thing.. I'm not going to say anything. Batzli: Normally Kate we have a little ~hart here that we approve these in accordance with based on what they're requesting. Aanenson: I didn't put that in only because we're looking at, we'll issue them a permit but all we're looking specifically is Just the number of boats. Batzli: Just this one item to modify their. Conrad: That's kind of confusing. When did we, we looked at them. Are we amending what we had approved before? Aanenson: Well this was given to them in 1981. Conrad: So they have not been in recently? Aanenson: No. No. Batzli: They haven't been in since '84 for their canoe racks. Aanenson: Correct . Mancino: If there's only one canoe rack up right now, and the second one has not been added since 1984, do they still have the right to put the second one up? Aanenson: Well that's a philosophical question that the Council has kind of said, that's the same question if we say you can have 10 boats. Then one year they only put in 8. Does that now say they can only have $? Because for some reason someone's traveled that year and hasn't put their boat in. And at this point I think the Council feels like, unless it's a substantial change in use over a number of years they're going to change it. But if they've gone under one year, or if you feel like you want to call it back, if there's complaints or i.ssues and you want to call it back Planning Commission Meeting June 2, 1993 - Page 10 and revoke it, otherwise I don't think the Council at this point wants to go back and every year relook at them and lower them down. Farmakes: I think if we look at our past practices of these things, we haven't been critical. Batzli: No, and we view that as a low intensity use. Farmakes: Correct, and the major issue that ~e argue over has been how many docks but the footage of the dock and how many boats are there. So ! don't know if I want to get into picking...canoe rack. Batzli: So I assume your motion is to amend the existing non-conforming use permit? Mancino: Non-conforming use permit and making it clear, yes. 8atzli: That they're limited to that number of boats. Okay. Is there any other discussion? Manctno moved, Scott seconded that the Planntn~ Commission recommend approving that three (3) boats be allo~ed to be docked overnight at the Colonial Grove at Lotus Lake aeachlot. ~11 voted in favor except Harberts, Conrad and Ledvtna who opposed and the eotlon carried with a vote of 4 to 3. Batzli: I think it passes 4 to 3. You voted aye? Scott: Yes. Batzli: Okay, your reasons for voting nay? Ledvina: Well, personally I think that their conditional use, well this permit should apply and I would defer to staff's judgment in enforcing or working with this permit. That's my basis for voting against the motion. Batzli: Ladd, do you want tot Conrad: Same as Matt. 8atzli: Okay, Diane. Harberts: I would concur and also again make the point, the discussion tonight from the residents was, their desire to not have it approved and no one from the ~ssociation was here in support of this. Those are my reasonings. ' Batzli: Okay, thank you. Planning Commission Meeting June 2, 1993 - Page 11 ~IC ~I;: ~CO~:~I; ~ ;~IT FOR $C~ID'$ ~'$~E$ ~~ ~SOCIATION REC~ATI~ ~C~OT. . T; ~SIT ~ ~~I; T; BTR ; EXTF. NT ~ THE U,~,E ftLLOWF,-D. Public pre~ent: Sherri & Tim Latterner Bonnie & Pat Monahan Dale Collins Dale Keehl Mary Jo Moore Mike Melkert Gary Car lson Mary & Tim Colleran Tom Owens Ken Durr Craig Mi 1 Dana Johnson Jim Hofer 3790 Meadow Lane 3801 Meadow Lane 3931 Aster Trail 3841 West 62nd Street 3231 Dartmouth Drive P.O. 8ox 150, Waconia 3831 West 62nd Street 6560 Mi nnewashta Parkway 120 So. 6th Street, #1512, Minneapolis 55402 4830 Westgate Road, Mt nnetonka 55345 6450 Minnewashta Parkway 50 West Pleasant Lane, Tonka Bay 55331 7098 Red Cedar Cove Kate Aanenson presented the staff report. Chairman BatzIt called the public hearing to order. Mike Melkert: Good evening. My name is Mike Melkert. I 'm an attorney.. I've been hired by Gary Carlson and other property owners who are seeking the permit this evening. As it was said in the background information, this was already before you once. What we're asking for this evening is that you reaffirm your previous 9ecommendation of allowing 10 off street parking spaces, one dock with one boat allowed to be docked, and one one boat allowed on the shore. We're also asking this evening that you allow launching rights for small canoes and fishing boats. When this was before you previously, I think the Minutes show that you felt there wasn't sufficient evidence to allow launching rights at that time but now we feel there is sufficient evidence and we'll be presenting that this evening. I've spoken with Mr. Durr's attorney, Mr. Owens and he thought, and I agree that probably the best way to do this is if I give my short presentation and then we hear the witnesses in favor of the permit and then he gives his presentation and then we hear his witnesses. I'd Iike to point out just a couple of things to you. In my Ietter, which was passed out before the meeting I tried to assemble for you in a concise and easy to look at fashion what I believe is relevant information. The Ietter addresses specific points raised by Mr. Durr's attorney. Most of the points raised by Mr. Durr's attorney are not relevant to what you're doing right here this evening. What may be relevant is the parking spaces. When Mr. Carlson gets up here he's going to show you photographs showing that turning vehicles around in the area is not a problem as Mr. Durr contends. He's also going to show you photographs showing that the area is blocked by trees and wildlife vegetation so there's not a real problem with blockage. I'd also like to direct your attention to the survey which does show in 1981 there was a dock. There were vehicles using the property and there was a boat on the property. Attached to my letter as Exhibits D and E are Planning Commission Meeting June 2, 1993 - Page 12 letters from previous property owners showing that during 1981, there were boats being taken down to the lake and off loaded into the lake and that the lake was being used for recreational purposes. And those letters are attached. The witnesses will also be testifying as to those facts.' If you have any questions concerning Mr. Owens letter or my response, I'd like you to address those to me. Otherwise, I'm going to turn it over to Mr. Carlson to give hie presentation and then after he's done, we'll continue with the rest of our witnesses. Harberts: I have a question. What do You consider, I think you said small canoes and small fishing boats. Do you have a size of a small fishing boat? Mike Melkert: 16 feet or less, would that do? Harberts: What about horse power on the motor? Gary Carlson: Well, the pictures will show, and if you've inspected the site, you wouldn't take a very large boat in there unless. Harberts: Unless you had 4 wheel drive. Gary Carlson= I have never seen anyone launch over a, there will be testimony to small ski boats and that's 40 or 60 or 75 or 85. Nowadays ski boats are 100 and 120. I don't own that size boat. I can't represent all of the other people, what size boats they might. It's not a safe site for large boats, no. It's not for two axle trailers with huge Cris Crafts. Harberts: What size do you launch or what size do you have? Gary Carlson: I have a 14 foot fiberglass runabout. Harberts: What's the horse power? Gary Carlson: 60. Hat bet ts: 60? Gary Carlson: 60. Good evening, my name is Gary Carlson. I reside at 3831 West 62nd Street. I wish to thank Kate Aanenson for a very good Job that the staff and the city has done of bringing this to you twice and working with all of the residents and the heirs that have the right to use this site. I'd also like to thank the entire Planning Commission for their time that they donate to the city and for the betterment of the city. I support the ordinance that we're working toward getting a beachlot, non- conforming beachlot permit for. I support holding Minnewashta to a level that it can support and basically going by a past inventory. And as we can all agree, this inventory as can be expected is quite lacking. It's kind of like asking in 1981, on a particular day if I was using my backyard and then asking Joe Scott on another day in 1986 if he was using his backyard and then by 1993, if he hadn't used his backyard on those 3 days that I came to look, I would take away his backyard. That's basically what the inventory tries to call out, so it is lacking some of the points but our members basically want a permit that is contingent with what the site will support. What has happened in the past as far as level of useage. That Planning Commission Meeting June 2, 1993 - Page 13 it's been a very limited recreational useage by a few of those that have the right to use it. Their heirs that have the right to use it and some of the heirs are here that have direct lineage to the Schmid's and then there are the assigns and that's where I came in 23 years ago when I bought one of the lots. One of the $chmid's Acre tracts and there are a lot of the assigns here and some of those assigns won't testify tonight but they will stand and give their name and their address and that they would like the useage to continue because some of the assigns are changing each year as a new homeowner buys or a particular property is sold to a new homeowner. The level of useage that we want to determine is what was happening in '81 and again, as your survey, it's hard to come right back to a day or a summer and say what that level of useage was. The level of useage we'd like to support is consistent with the site and if you've seen the site, if not I will send the pictures around and while the discussion's going on, you can just pass them from site to site. And if you have any questions about any of the pictures, you can certainly ask me. Mancino: Are these 1993 pictures? Gary Carlson: These are 1993 pictures, but the site has not changed in the 23 years that I've used it. It's basically the same site. In 19'811 think my daughter was at that age that she crawled there in her diapers and by '86, she was running and waterskiing there. In 1993, she takes her horse down there. So if you see a horse going right onto the lake swimming, that's quite an exciting event for her, and the horse loves it. And I appreciate the time in front of you because I have a handicap daughter in a wheelchair and when she sees her dad on television she just about jumps out of the wheelchair so I appreciate the time that you've given me to make my presentation. The first witness I have comes in the form of writing by Mr. A1Gelschus and I won't read his whole letter because you have it in front of you. He's a long time employee of NSP and a close personal friend of our Mayor, of course. The easement for that area was always used by us and others for. He states in his letter that he's lived here for 30 years. The easement for that area was always used by us and others for many recreational activities including launching of small boats, canoes, etc. We enjoyed, and then he goes on to say some more about it but that's the meat of this is that they used it during the 30 years that they lived here. And buying the property from Al, the current owner is here and he's already used it some and will continue to use it and you'll hear from him and let him make his statement at this time. Dale Keehl: Good evening. My name is Dale Keehl. I reside at 3841 West 62nd Street. I bought my house from A1 Gelschus last September so I haven't had, !'ye been down to the access a couple times. !'ye known A1 for, I've worked with him for 24 years and when I was first with NaP I went there a couple times with him and used the access and that was one of the main reasons, besides the park and stuff, that I bought his house. Is because I had a chance to, I would have a chance to use the lake with my two boys and do some fishing. The boat I have, even with my 4 wheel drive, I wouldn't be able to launch it there. It's not an improved launch or anything. I could see where a small fishing boat could be launched but mine wouldn't. ! would use the park's launch area. And as far as, I probably wouldn't use it for leaving my boat there overnight. I'd trailer it and leave it but I would really like to be able to use the lake with my Planning Commission Meeting June 2, 1993 - Page 14 two boys and have a place we couId come and have a picnic real close to our house and stuff like that. And I guess that's all I've got to say. Thank you. Gary Carlson: Also the next, one of the active users of the lake during that time that you want to establish your history would have been Bill Friberg. His statement is also of record with you and I'll just refer to the parts in it that are again pertinent to his history. Establishing the history of the useage. Bill Friberg is retired from NSP and is aisc a close personal friend of our Mayor. Rs to his honesty, the Mayor can attest. Bill lived there from '59 to '87. During this time our neighbors, A1 Gelschus' family and us used this easement. We built a dock,, launched our boats. We picnicked, swam, waterskied from this easement. Also, our other neighbors that own property on Schmtd's Acres Tract used this easement. For this reason ~e feel that their use should continue. He o~ned until '87. Terry Toll couldn't be here this evening. . I~ you want a ~ritten statement for the Council's consideration, he will be glad to ~urnish one. He couldn't attend this evening. Batzli: If you can make, if he wants to give a statement, you can provide it to the staff to make it of record and the Council would then have it avaiIable. Gary Carlson: Alright, thank you. The next witness I would have is Clint Wager. Through this time, him and his wife used it,-and his dog. That's basically is they walked the dog there and would both go swimming and he would allow his children to go there. He's recovering from hip surgery and he would provide a written statement, and I can attest to his useage as. well as he would. The dock has been well documented in your inventory but I would call upon the Latterners are here this evening. They've been, Bill Friberg was docking. When he quite docking, then I supplied the dock and Dale Collins who is here, his son-in-law helped me many summers put it in and take it out. And when that dock expired, I bought one from the Latterner's who are in the dock business so Mrs. Latterner is here tonight and she will now testify that the last 3 years I've put in and taken out a dock. And she also is an assign and has the same right to use it that I do and so she's. Batzli: Let me ask a question before you bring Latterner up here. Your entering testimony here of somewhat more recent events. Is this to disspell the notion that you've somehow abandoned any rights that you may have? Do you have people here that can talk about what was happening i'n 1981, or what are we doing here? Gary Carlson: Well the last 3, 4 mentioned people all testified to what was happening in '81. Batzli: So these people are, you're not necessarily giving timeframes but all these people, the written comments are. Gary Carlson: Are mostly through the '81 series. And then the recent is that we haven't abandoned the site. Batzli: Okay. Planning Commission Meeting June 2, 1993 - Page 15 Mike Melkert: There is some issue here by Mr. Durr's attorney that there was an abandonment and that's where the testimony came in. Sherri Latterner: Hi. I'm Sherri Latterner. I live at 3790 Meadow Lane. We bought our lot in 1991 from Gary and we put the dock in that spring before we even had built our house. And we have put it in last year and we put it in this year. We do use the sate quite often. We don~t use it much on weekends because we go out of town but we go there after dinner. Go swimming and the problem that I heard about turning around cars and parking, we've never had a problem being able to turn around our car and we have a 4 wheel drive truck that takes up quite a bit of space. And we've never had a problem with that and enjoy it very much and would like to continue to use it. Harberts: Sherri, do you have a boat? Sherri Latterner: Yes we do. Harberts: And where do you launch it? Sherri Latterner: We don't use Lake Mlnnewashta much. We keep our boat up at our cabin. We do have a small one here but we don't use it very often. We usually go to Virginia to fish. Gary Carlson: Now at this time I would like to enter into the record, there are some people here that are also assigns on the property that would have the right, the recreational beachlot be continued. It's been a limited use for recreation on a limited basis lot and we would like that to continue. My application was, on the number of cars, you can see that one picture I think there's 8 in there and we're not even on the drive. We're just all pulled off to the side. The reason the number is 10, and there's been some contention or worry that we're going to start a parking lot there for 10 cars. It's only to be within permit. I have myself and my family, 8 brothers and sisters. My wife has 7 and if we have a family get together on a 4th of 3uly, and not even all of us would have to meet at the lake and we'd have 10 cars. The level of useage, the most I've seen is maybe 12 cars or that would count a boat and trailer as a car. I've seen 2 boats and trailers and the accompanying families down there and that's only once in the 23 years I've been there. So the reason I'm asking for 10 cars is that in, if someone has a picnic there, any of the assigns or the heirs has a gathering there, that they won't be out of permit. ~te're not requesting and we don't advocate a continuous parking lot- for 10 cars. It's Just that we show that we, by those pictures that there are available room on a 50 foot wide access for that number of cars, and also to turn around on that site. There are some people here. I'm sorry, I missed one testimonial and that would be also to the useage during the '81 and on u~ to the present. And I missed having him come forward. That would be Dale Collins and he has a statement for you. Dale Collins: I'm Dale Collins, 3931 Aster Trail and our family has owned Lot 8 for nearly half a century now. I think they bought the place in 1950. At that time we used it primarily for swimming. There was no air conditioning at that time and so we'd take a bar of soap and go down there at night. We also used it for fishing and we would take a small duck boat Planning Commission Meeting June 2, 1993 - Page 16 in or a canoe. And this continued on up into this 1981 era and at that time my useage and my father, who was quite old at that time, and rather declined but our children used it a lot and like Gary said, my son-tn-law helped him put the docks up. 8ut they used it primarily for swimming purposes. So we would like to see another permit issued and I have a letter from my daugh'ter who couldn't be here. She owns the north part of Lot 8. It says, to the Chanhassen Planning Commission and those concerned. With regard to permit for lake access to Minnewashta, as deeded to my Schmid's Acres Lot 8 property, I would like to see the following stipulations met and the permit. One, removal of the road curb that has been placed in front of it. Two, one dock. Three, the permit to park cars. Four, no overnight boat or car parking. Five, 10:00 p.m. closing. Six, access to the deeded owners only. Also, if t~,~ road curb was placed upon demand of an access neighbor, I would like to see legal action taken by the County Attorney against these persons for denial of access to private property. Cathy Collins Sheridan, 3921 Aster Trail. And I pretty much concur with all of her recommendations. We realize that times have changed. There's more people in Schmid's Acres and I don't think it's for the better. It used to be a lot of nice dairy farms and now it's a lot of crummy people farms. Mancino: Mr. Collins, have you used, you or your family used the access every year since 1950 in some way or another? Dale Collins: Yes. Mancino: Every year. Dale Collins: Yes. We have a canoe that we carry in now. Farmakes: The 5 to 6 parking spots that are listed in the '81 survey. Do you concur with that? Dale Collins: Pardon? Farmakes: The 5 to 6 that are listed in the '81 survey, do you concur with that? How many off street parking spaces do you recall in Dale Collins: How many were there? Mancino: How many cars parked? Dale Collins: I don't know how you'd estimate. I mean it's a long access that's 50 feet wide so there's room for a lot of cars. But there would be very seldom more than 1 or 2 at any time. Gary Carlson: The next party would be Mrs. Monahan. She's an assign and she'd just like to enter her name that she was here and in support of the. She also has the right to use the access. Batzli: Thank you. Gary Carlson: Her name is Bonnie Monahan. Is there anyone else that wants to speak in support of the access? I might ask a question. Now you've Planning Commission Meeting June 2, 1993 - Page 17 heard that we do use it and we wish to continue to use it in a recreational manner. And if you have any questions of the pictures that are there. That's the same dock that has been installed for the last 3 years. And the one that I used before that was similar without the bench on the end of it. And the same access. The small little gravel ramp. And it's really not a gravel. Just sort of gravel gives way to the sandy beach so any large weighted boat you'd definitely be down there with a 4 wheel drive to pull it out. You could maybe launch it but, so it's just maily for our light recreational use. But your permittin~ doesn't allow us that for light boat launching so we don't want to be illegal if Dale's daughter takes her canoe down there and puts it in. You're launching and have a neighbor on either side say well you're out of permit. We simply want to continue it as a recreational beachlot. I had my 35th birthday in '81 and I know I was down there with over lO cars. I have no other comments other than to request time to answer fully any of Mr. Ken Durr's questions that he may raise. Although I can definitely tell you that none of our people that are here' supporting our continued recreational use have ever met Mr. Duff. Or know what he looks like. But based on our recreational, continued use of the lot, somehow he happened to be there when they were pouring the curb and although the plans and specifications that were approved by the Chanhassen City Council showed, and I checked those plans at the engineer when they were being drawn up. At Engelhardt and Associates when those plans were being drawn up and before they were approved by the City Council. I checked those plans and they showed a curb cut onto our access but somehow Mr. Purr happened to be there and talk to the people that were installing it and he said, no, no. There's no curb cuts in here. Just put that full 6 inch high curb right on by. I've talked to the City Attorney and he informed me that they were going to, the City, at it's expense was going to put that curb back in correctly as it was shown on the original plans and specifications. And that's what Dale Collins daughter was testifying to. That she, most women will not drive up over a 6 inch high curb which is required on Minnewashta Parkway in order to handle the amount of water that comes down on the roadway. $o they had to go with a 6 inch high curb rather than a normal surmountable curb that you've recommended in most of your developing. In most of your homestte developments. Batzli: Let me ask this question, since you raised the issue. You have an undeveloped gravel/dirt road. With the amount of water that you've just admitted runs down the street, how do you handle the erosion down through your recreational beachlot? Gary Carlson: That's a very good question. In the engineering layout of Minnewashta Meadows they replaced the culvert which there was a culvert under our driveway and that culvert is in place. And normally you wouldn't put a culvert unless there was a driveway but the engineers put that culvert in so they recognized the driveway. We're so close to the edge of the creek that there's only the 8 or 9 foot wide gravel drive'that we have and then it falls right into the creek so we don't have any large amounts of water running across our little road. But that's a good question but it's well handled. The City has a permanent easement and they use our access to get to it. To maintain their sewer line that runs along. We have a manhole right half on our property and half on Ken Durr's property. And that manhole has been serviced in the past from our drive. From our access. The city trucks drive in there and clean it out or whatever they do. Planning Commission Meeting June 2, 1993 - Page 18 Batzli: Dave. Are you familiar with the curb cut he's talking about? Is there a way to handle any runoff so you don't get erosion through there if you take the curb out? Hempel: Right. If we were to put in a curb cut for the driveway, we would put a slight ramp into the end of the curb to maintain the drainage past the driveway and keep it on the street and collect it in catch basins. Batzli: Where did the storm sewer go to right there? Hempel: The storm sewers all go to pre-treatment pond. Batzli: That one does go to a pre-treatment pond? Hempel: That's correct. Now. Prior they did not. Harberts: cut? Is there some reason Dave why you wouldn't want to put in a curb Hempel: We have a number of curb cuts up and down Minnewashta Parkway. Harberts: I was just wondering if that particular area. Hempel: Harberts: No. I'm not familiar with any problems. . Is that a city expense or is that the Association's expense? Hempel: Well the project is partially being assessed back to the benefitting homeowners. If we had to go back in and do it, no. There would be an expense to the city to have it replaced into the curb cut. Aanenson: Can I get some clarification. Since this permitting process hadn't gone through yet, we decided to wait and take the curb out and have to put it back in. Wait until you give your and take the curb out if that's necessary. It makes a lot of sense, and we've told Mr. Carlson that. It's an easy change order to go in and cut the curb out. Ne didn't want to take it out now and then if it goes back in, because it hadn't gone through the permitting process. And if you grant them access, there's no problem to go ahead and make a change order and the engineers are aware of that. It's just to make sure that we don't replace it. Batzli: Okay. Do you have anything else? Gary Carlson: No. If you don't have any other questions? Batzli: Yeah, we will probably after. Gary Carlson: Sure. I'll be available for your response. Batzli: Okay. Is there anyone else that would like to address the Commission? Tom Owens: My name is Tom Owens. I'm counsel for Ken Duff. You have some materials that we've prepared and submitted last week as well as some Planning Commission Heeting June 2, 1993 - Page 19 additional materials from tonight. Ken is here tonight and would like to make a few comments and he also has some slides that he would like to show of aerial photos. If we could take a second and set that up now, I think that's going to be some very compelling evidence that he spent a lot of time and money putting together. Batzli: Okay. And Mr. Durr lives where in relation to this beachlot? Tom Owens: He lives in the city of Minnetonka. In fact why don't, Ken, maybe you'd like to your comments and I'll see if I can get the projector set up here. Mancino: Can you show us on the, Kate's map what property you own? Tom Owens: Mr. Durr owns Lot i of Schmid's Acres Tract as well as some additional land to the east. And northeast. Ken Duff: My name is Ken Duff. I live at 4830 Westgate Road, Minnetonka. I'd like to just respond to a couple of things that were commented on. The curb cut was not Just a spur of the moment thing that occurred as the curbs were being put in. One year ago in May I talked to the engineering department of the city telling them'that we were possibly planning development of our property. That we did not want the curb cuts as shown on our property. There were two curb cuts shown along Minnewashta Parkway to serve my property. And until we would know the plan for development of the property, we did not want that cut, or those cuts put in and then have to be removed and cuts put into a different location. I talked to your engineering department. They referred me to Engelhardt, the consulting engineers on the project and they said, whatever you want done, let them know. It was not only regarding curb cuts. Ne addressed slopes' to the curb. They had very gentle slopes going back 20 and 30 feet into the property which would destroy a lot of vegetation. Upon meeting with them, they concurred that they would put in steeper slopes as we developed the property. We would put in a stone retaining walls to allow the shrubbery and plantings to come out more to the edge of the property for a more aesthetically appealing situation. So this curb situation was initiated a year ago in May. Not just in the last few weeks. Batzli: Just for everybody here. I appreciate you clarifying the record on the curb cuts. It's not really an item that's in front of us. I asked the question only because I was concerned that if they took it out, there might be erosion. But that has very little bearing on what we're trying to decide tonight so, let's see if we can avoid talking about curb cuts. Ken Duff: Okay. I've owned property on the north shore of Lake Minnewashta for 18 years. I purchased the first of three parcels, a 7 acre tract in 1975 and in 1979 I purchased the adjacent parcel, Schmid's Acres Tract, Lot 1. And that is the lot on which the 50 foot reservation is in question. I was in the last year I purchased the, what was referred to as the Smith Greenhouse property so we put together 3 parcels there containing about 19 or 20 acres. The reservation under discussion falls within the legal description for Lot 1, Schmid's Acre Tracts. It lies within the southerly border of my property. County Records show that I have been paying taxes every year for 14 years on the land within the 50 foot Planning Commission Meeting June 2, 1993 - Page 20 reservation, ever since I purchased that property.' As had all previous owners since 1914. In addition, the square footage of the reservation is calculated in the total square footage of Lot 1 for the purpose of assessing sewer and water units against Lot 1. In 1992 the taxes on Lot the smallest of the three parcels I owned there was $7,840.00. Taxes on all three in '92 totalled $31,078.00. The acquisition and holding of these parcels has been very costly but part of a long range plan to develop a quality residential community on these 19 or 20 acres. However the use and misuse of 50 feet of my property is very concerning. If I were to develop a plan for my property and request this body for a beachlot approval, I'm sure I would be directed to a section of the City Code addressing the beachlot ordinance. It's a very stringent ordinance and I don't want to read it all but I would like to just read 5 of the 17 points. No boat, trailer, motor vehicle, including but not limited to cars, trucks, motorcycles, motorized minibikes, all terrain vehicles, or snowmobiles shall be driven upon or parked on any recreational beachlot. Number 5 is boat launches are prohibited. 7, no dock shall be permitted on any recreational beachlot unless it meets the following conditions. Shoreline of at least 200 feet and area at least 30,000 square feet. Item beachlot is intended to serve as a neighborhood facility for the subdivision for which it is a part. At least 80~ of the dwelling units with rights of access to any recreational beachlot; shall be located within 1,000 feet of the beachlot. And finally, item 13. Ail recreational beachlots shall have a buffer sufficient to insulate other property owners from beachlot activities. Now, these are very stringent, and I've only cited 5 of 17, very stringent regulations that are put upon a person who is going to develop a piece of property and attempt to establish a beachlot today. And well it Just seems strange I guess to me why a riparian owner who has been paying taxes on property for over 14 years is required to meet these very stringent requirements that there would even be a consideration of the very lenient intensive use of a 50 foot portion of my property by non-riparian property owners. From 1975 to 1985, until our house was extensively vandalized. I'm speaking about the center property. The home that was on that property. It was extensively vandalized and ultimately we had it burned down by the fire department. But my family spent a lot of time during those 10 years enjoying the property on the lake. Sundays were special times when families, friends of our's with children would join us for recreational swimming, boating and waterskiing on the lake and quite often in the evening my wife and I would use the boat and Qo for a spin around the lake. Since 198S I have still been on the property at least one day during the week and most weekends. Now during all of this time, since my purchase in 1975 we observed very little use, and the vast majority of the time no use of the 50 foot reservation. There was no boat launching, no canoe racks and only occasionally a vehicle or people. Aerial photos will show that there's no dock at most of this time. The only aerial photos, and I've done an extensive search with many different agencies. The only time that we can find docks showing on aerial photos is 1991, 1992. The few times that I observed a vehicle or persons on the property and inquired of them where they were from, no one ever said they were from Schmid's Acre Tracts, and I guess that Was proof here tonight when Mr. Carlson said that no one here knew me. No one would even recognize me. And that probably is the case because these people that I would ask whether they had a right to be on this property, most of them would say they thought it was a public access. But no one ever said they were from Planning Commission Meeting June 2~ 1993 - Page 21 Schmid's Acre Tracts. The misuse of the property at night I assume is also by people other than from Schmid's Acre Tracts. The loud parties, littering of .beer bottles, beer cans, wine and whiskey bottles have been a constant problem. Late into the night and early morning hours it has been anything but peaceful and quiet possession of property for myself and other owners in the area. For 10, let's see 9 years I guess. From 1979 to 1988 I had a tenant in the propeTty on Lot I, Schmid's ACTS TTaots. An attorney, Brian Peterson. And he told me that he would call the police 4 to 5 times every summer to break up loud patties in the early morning hours, and that he only called on occasion. He didn't call every time there was a loud party. The litter on the 50 foot strip and into the grass on the north has been intense. Some have used the property for repairing automobiles, draining oil. You'll find cfrained oil, oil filters, mufflers, all kinds of debris on there. Even at this point, there is a lot of debris thrown into the grass on the north side of the reservation and every year I've picked up several large bags, garbage bags or lawn bags of garbage off the property. Prohibiting motoT vehicles on this 50 foot reservation would solve all these problems of misuse. It would solve the partying. It would solve the noise and the litter I believe. It is the access by vehicles that bring the problems. If I were to develop a 200 foot wide riparian beachlot, ! would have to adhere to all the things that are in that code. And it's inequitable I feel to allow this useage on a 50 foot portion of my property by non-riparian users. The proposed use of the 50 feet of my property would impose a hardship for myself and surrounding properties in that we would not enjoy the peaceful and quiet possession of our properties. This has been a problem for too long a time and I respectfully request a denial of the beachlot application. Batzli: Let me ask a question. Mr. Duff, how do you explain what I see as kind of an inconsistency between your discussion that it's an intense and intrusive use versus your argument that there's been no use there. Is what you're referring to is that the unauthorized uses are the intense 'and intrusive uses? And let's assume for a minute that the only use that did go on there, there was some way to monitor it. The fact that you've never seen anyone from Schmid's Acres using that, you wouldn't at that time call it an intrusive use would you? Or an intense use? Ken Duff: I guess it would be intrusive. Whether that would be intensive. I think what I'm referring to is the proposed intensive use of the property. Batzli: But what we're here trying to do tonight is to determine the level of use from 1981, so I don't know that it's a proposed intensive use. What we're actually trying to determine is how has it been used in the past, discounting these unauthorized parties or people who apparently thought it was some sort of public launch. Ken Duff: Well from my viewing the property, and being out there a great deal of the time, it had little and most of the time no use. Batzli: So in general this is not, this particular let's call it a beachlot for argument sake. This beachlot has not received intense use other than perhaps loud parties at night by high school' kids? Is that really the, I mean because you've been out there and you haven't seen Planning Commission Meeting June 2, 1993 - Page 22 anyone from Schmid's Acres ever using it. So.it certainly doesn't sound like it's been intense, although we have people telling us that. Well, excuse me. I'm just trying to get a feel for your argument here. Is your argument that you don't like the unauthorized uses or that because of the way, and maybe your attorney will want to respond to this. Is your argument that because of the unauthorized uses, it's been an intense use and that's unacceptable. Or is your argument that for somehow the recording of the access or reservation was improper and so it never was a beachlot. Or I guess there's a third way you could look at it and that is that, well the third way escaped me. But you know, what we're trying to do here tonight is to determine what the level of use was. Your attorney has raised a lot of arguments regarding whether it's a proper beachlot, which may be best settled between you two guys in a forum other than this, because we can't decide that. Ken Duff: Yes. Well the useage of the beachlot, I think in 1981, which seems to be the year we're looking at? Batzli: Yeah. Ken Duff: In my search of aerial photos, I was only able to find two for 1981. I believe one of them was taken in March of '81, which is early, for a dock to be out, but that picture shows no dock on site. Nothing of any nature on the site. The other one was taken in July of '8! and there's no dock shown in July of '81. Scott: Excuse me Kate. On the recreational beachlot inventory, what was the date of the survey in 1981, 1986, whereby we show a seasonal dock in both of those years? I'd like to kind of corroborate what our city staff has found vis a vis this data here and then also there's an inconsistency between Mr., I'm sorry. The affidavit. Batzli: Peterson. Scott: Mr. Peterson wherein he swears via affidavit that a dock was installed on the reservation in either '84 or '8S and that information does not show in your aerial photo inventory. So I see some major inconsistencies inbetween this document, your affidavit and the city staff inventory. . Aanenson: Okay. As I mentioned before, there's the '81 survey that's in your handout, there are some errors in there. One I noted was the 5 to 6 parking. The inventory was-done on June 12, 1981. Tom Owens: I think it was June 4, wasn't it? Aanenson: June 12th. Oh excuse me, I got... Scott: June 4th of '817 Tom Owens: That was one of the five pieces of paper that we handed out just before the meeting. It's attached to Mr. Durr's index to the aerial photos. There's a copy that we obtained yesterday from the City's ballominist historic files on beachlots. Of the survey done by City staff Planning Commission Meeting June 2, 1993 - Page 23 June 4 of 1981 and this may help clear up the discrepancies that Ms. Aanenson has noted on the allocation. Scott: Kate. I'm trying to rectify something here. Aanenson: Yeah, it's the 4th right. Scott: We have something in our package that shows a 3 survey summary and it states in '81 that a seasonal dock was on the property in '81, '86 and '91. And then there's another document here. Which is the one that we need to? Aanenson: You should correct the one, the '81. Where it says seasonal docks. The '81. June 4, 1981 inventory. Whoever took it from city staff at that time noted that there was not a permanent dock. Scott: Okay. So we should correct our seasonal dock in our package. Do we have a similar situation with the '86 number as well? Aanenson: I don't have that in front of me. Scott: Okay. Batzli: Do we have the raw data for the '86 survey somewhere? Aanenson: Yes. Batzli: You may not have it in front of you but. Aanenson: Yes. I may have it in the file. I can get it quickly. Batzli: So we'll clarify that. Do you have something else? Scott: Yeah. Just based upon the affidavit then, there was a dock there in '84 or '85 that didn't show up in the aerial photographs. So I'm just trying to rectify the accuracy of all this information but it seems like we've got a couple of inconsistencies here. Batzli: Good point. I see your point. Farmakes: I have a question. Are you disputing the 50 feet of shoreline? Ownership. Ken Duff: I'm sorry. Farmakes: Are you disputing the ownership of that 50 feet of shoreline? Ken Purr: Not at all. I own it and I pay taxes on it. Tom Owens: Let me follow up a little point that was made a few minutes ago about assessing this curb cut to the Association. You don't have the, the City does not have the power or authority to do that. Mr. Durr's going to pay for any curb cut there for the benefit of these people if it goes through. It's his property, Lot 1 that's assessed for water and sewer. The Planning Commission Meeting June 2, 1993 - Page 24 Association in addition do not have a legal existence, corporate authority, mandatory membership as you'd normally have with a homeowners association and dedicated outlot. And how in an elected representative to stand before you and agree to things and negotiate. That association has, well. That association has no interest whatsoever. Perhaps, perhaps some of the people here have an easement right. Farmakes: Okay. Getting back to my original question, are you disputing that in Court? Tom Owens: No. Farmakes: This is not the forum to do that. Tom Owens: That's right. Farmakes: Are you disputing that in Court to decide whether or not they could use the property? Tom Owens: No action has been filed. I've not been, I've not drawn up anything, no. Mancino: So when you bought the property you said, you knew that they had an easement to use this property and that you agreed to pay all property taxes and assessments for the property. That is an implication of when you purchased the property. Ken Duff: When ! purchased the property, the legal counsel from Dorsey- Whitney firm examined title and he noted the reservation and he said, and he talked to the city at that time. He said there would be no vehicle traffic and that was in '79. This beachlot ordinance then came into existence in '81. I attended the meetings on that and they indicated to him and to myself that there be no intensification of usage allowed on that. Of course that was preliminary stuff that was ~oing on at that time. 8ut again it was his opinion was that it would be only for the 8 individual sites. That it would not be used by more people than the original 8 lots that were within the Schmid's Acre Tracts. Farmakes: You're claiming then that this predates 1981, correct? Your agreement on this property. You purchased this in '75 I believe. Ken Duff: '79. Batzli: Okay. Do you want to show us some slides or. Tom Owens: We would and perhaps while Ken sets that up to show you a couple of slides I could make a couple of comments as well. Commissioner Scott, I would like to follow up on what you've'begun and that in fact is the inquiry about the uses that existed in 1981. I appreciate the staff correcting that survey and in fact if you look at the survey that shows the 3 years in question. 1981 is the key year by statute. By ordinance of this city and if you go down through the list of uses and then compare them to the requests of this so call association, what they are asking for is a very dramatic enlargement of the historic uses. If they were able to prove Planning Commission Meeting June 2, 1993 - Page 25 that in a particular year after that, after 1981, they used it for some of these additional purposes, that is not supposed to carry weight, and in fact the city ordinance very specifically says that non-conforming uses, just like non-conforming structures, are not to be enlarged or expanded. $o even to go from zero canoe racks to one is a simple enlargement that is not permitted. There wasn't a canoe rack then and there shouldn't be one now. ~nd I think if we go item by item through the list of requested uses, you will find that the only two uses that might arguably be permitted now and in the future would be for some limited vehicle access but without parking and swimming, although when it comes to swimming, we have to point out and I have to say that I have very great concern for Mr. Durr who has asked me to look into the whole insurance issue here and liability. Ne have an association, supposed association here that doesn't exist. Doesn't have corporate capacity. I'm sure doesn't have insurance policies. Doesn't have the right to assess members. To pay for insurance. To pay for improvements and Mr. Purr is substantially at risk for these very significant requested increases in use. Farmakes: Is your client disputing the 5 to 6 off street parking...? Tom Owens: That's, yes. Because in fact that's incorrect, at the time in 1981 the survey, the actual survey done by the city, and I've handed you a copy which we obtained from the city files yesterday. That's the June 4, 1981 survey. Just go right down through the list. Off street parking or on site parking, great big check for no. It doesn't say 5 or 6. It doesn't say 1. It says no. So that's why we have to go back to, if you go back to this inventory. This one is almost accurate for 1981. It's accurate with the exception of the seasonal dock, which Ms. aanenson just mentioned ought to be corrected. $o for uses in 1981 all you have is motor vehicle access, yes. Off street parking no. NOw, according to the ordinance governing beachlots as well as the non-conforming use ordinances, I don't know how better to put it than it's illegal for the city to say, now we'll give you some on site parking bare. Farmakes: So you're disputing, let me ask this just one more time. Are you disputing, not that the cars were there but that there was any improved space for 5 or 6 cars. You're saying that there ~as no improved space in 1981, correct? Tom Owens: Yes, but in addition to that we're saying there was no on site parking. Farmakes: You're familiar with the property. It's been there over a period of time and there are a few people here that have been here since 1981. That's my question. The fact that, not that there wasn't any cars that happened to be parked there that day the city took the survey, but was there any improved parking area in 1981 for 5 to 6 cars? Tom Owens: No. No. absolutely not. The survey is accurate and that can be backed up by the aerial photos which will also, none of these aerial photos which have been obtained from government agencies far and wide. In addition to, I'm showing docks only in '91 and '92, they don't show cars parked and they don't show boats. Planning Commission Meeting June 2, 1993 - Page 26 Farmakes: This is what you're going to show us now? Tom Owens: Well, in looking over here and seeing that we may all have to put on some special glasses to catch these but perhaps Ken you could run through a couple of these slides and the evidence that you'v'e put together. Batzli: Okay let me ask one question before you run these and I'm going to try and totally destroy any probative values that these have. We have an affidavit here from an attorney who says that there was no dock until '84 or '85 and your survey, aerial photographs show that there wasn't any dock in '84 and '85. Should we believe your, what should we believe here? Ken Duff: Well we can look at the slides and determine. Batzli: I mean I'm trying to decide whether to throw away the affidavit or throw away your slides. What do you want me to throw away? Tom Owens: I don't think either. No, I don't think either. Batzli: I don't mean to make iight of it but there's a problem here with some of the things we're looking at and we're trying to figure out, you know. We've heard that he's never seen them. They've never him. I believe that they used it at some point. You may. Tom Owens: I have no doubt that most of these people have been down there on the reservation. Batzli: The question may exist whether they have the right to use it under the reservation language and I'm... Tom Owens: That's not for us tonight. Yes, that's not before the city. Batzli: So the issue that I'm looking at is, what was the use and then the slides I see all a lot of zeros until recently and I see An affidavit that says, but there was one there when your slides say there-wasn't one there. And I have people that have at least been telling me that they've been putting in docks each year. So you Just kind of want us to put it in a crucible and decide ourselves. Tom Owens: No, I think you do have to take both of them together and I don't want to discount Brian Peterson's testimony, even though he's not here. I suspect what he would say is that he's relying on the best of his memory that for this period of, he moved in and for the first several years that he lived there, there wasn't a dock and then lo and behold, somewhere around 1984-85, maybe it was '86. Maybe. one year, or 2 years, they put in a dock on 3uly 5th, after an aerial .photo was taken on 3uly let. I think they can be read together. We too are trying, we're searching and as you can see, Ken Durr has searched high and low for historic information. The extent of historic information on the other side is, well something you're going to have to weigh and balance. Farmakes: Do you believe that the city misidentified the'one 45 foot dock on the property? Planning Commission Meeting June 2, 1993 - Page 27 Tom Owe'ns: During the 1981 Survey t~e city employee or' contractor found no dock. Mancino: So there is a change to the inventory here? Aanenson: Right. Batzli: Right. Scott: In Mancino: A correction. Tom Owens: In 1981. Scott: Okay, '81. '86 and '91 stand, correct? Tom Owens: Well in '86, to be honest, there's some, I'm not sure where that came from. I found two documents in the file. I'm sorry, I found a 1985 Planning Commission document that listed all the city beachlots and then listed whether they had a dock or not. And for Schmid's Acres it said no. Scott: In '857 Tom Owens: In '85 in preparation for this '86. Then I found some notes that said, some handwritten notes that went on for about 4 pages and listed each of the individual beachlots and then for Schmid's, I can only guess this was done in '85 or '86. For Schmid's Acres, the words are, changes which have occurred. Added a seasonal dock. No boats on shore. "Had one canoe." "Poorly mainatined." Scott: So is there a date on that document?- Tom Owens: It's undated so unfortunately we're dealing with imperfect information. Scott: Well let's use perfect information. 1986, is that. 8atzli: Do we have some here? I'm sorry. Go ahead, I'm Sorry. Scott: I'm just trying to get a handle on what's going on here. Let's look at some slides. Conrad: Before we do, the point is, we're looking at '81. Aanenson: Exactly. That's why I didn't spend a lot of time. Conrad: The Mickey Mouse of '84-'85, seriously that doesn't count. We're looking at, it may give a track record but '81 is the date. Seriously. That's what we're doing. Every beachlot we look at is '81. So I don't care what was in '91. I don't care what was in '$6. I do care, '$1. $o I'd love to look at slides but if they're not showing me 1981, I guess I don't have an interest. Planning Commission Meeting June 2, 1993 - Page 28 Tom Owens: And Mr. Conrad then, you can imagine as a lawyer that the kind of belt and suspenders approach here is that just in case someone should think that, incorrectly of course, that there was a dock in 1981, then we would like to be able to demonstrate that that use was discontinued and the period of time for discontinuance is, well it's a year under the ordinance and state law, I think that would be deemed to be a summer for purposes of a dock. 5o if they don't put out a dock for one year, if they put it in in '81 and then skip any year after that, the dock's out. And I'm sure that's come before this city many, many times before. Non-conforming uses and structures. So we don't want to keep you unnecessarily late. The format of the aerial photos is such that they're in a slide form, although Ken does have a few. Well, are there any from the 1950's that are actually blown up? Ken Duff: Well here's one for '81. It's got a date... (There were a number of conversations going on at one time at this point.) Batzii: I think they're hopefully going to show us the, I'd be interested in seeing the '80, '81 and '$2 slides just to see what we can see from it and I don't really want to see ali the. Conrad: And then I guess I'd like to ask staff, does a discontinuance of a use in this situation mean they don't have, we have not interpretted it that way. Aanenson: Not on docks because there's sometimes extenuating circumstances. Scott: Lake water levels. Aanenson: Yeah. A cold summer. We had that circumstance on some of the beachlots that we've heard before. Farmakes: If that's the case, half of Mtnnetonka a few years ago would not be able to put their docks back out in the water. Tom Owens: Right, and Mr. Batzli's a lawyer and perhaps I could point out. The case that I, the one case that I cited very briefly in my letter goes to exactly that point and it puts on the applicant for the non-conforming use permit the burden to demonstrate and it's okay to demonstrate that the use had to be discontinued because of, basically acts of God. So we've had no proof or evidence like that. Batzli: Okay. Can you tell us what we're looking at here briefly? Is this a '80 slide? What is this one? Tom Owens: This is '81. And this is the north shore of the lake. This was the rental house that Brian Peterson. This is his area right in here. This is the reservation here. This is the house ad3acent to it that has been torn down that Dana 3ohnson has gotten approved for a lot. So that 50 foot reservation is right here. Scott: Is there a dock on there that we can see? Planning Commission Meeting June 2, 1993 - Page 29 Ken Duff: Oh yes, many of them. Ail of these are docks? Ail these are docks. This dock is about 90 feet long. That's my dock. This is the when the water, you can see that shaded... Scott: Is there a date on this slide? I noticed on this one there's a date. Ken DUrT: There's a date only of 3uly, '81. This was from the Agricultural ASC Desk. Tom Owens: Soil Conservation Service. Ken Duff: Ali they did was designate the month. They did not designate the day... (There were a number of conversations going on at one time at this point.) Batzli: I assume your other slides show similar things. That there's a lack of a structure that looks like a dock when you have zero's. Tom Owens: That is correct. Batzli: Do you have any other evidence regarding a dock or no dock in that you can present? Ken Duff: Not here, no. I would have photographs and home movies that have that shoreline but. Batzli: Okay. Can you show us the slide of July, ~9867 Number 27 I think it is. I think our survey showed that there was a dock there and I was curious to know if the slide showed it. Scott: Kate, what's the date on the '86? Aanenson: I don't have a copy of that in the file. I'm sorry. Harberts: It's interesting in July of '$4 there'S 75 docks and the one that Brian is requesting, number 27, there's only 63 docks. Mancino: Say that again? Harberts: 3uly of '84 shows 75 docks, according to this inventory. And July of '86, 2 years, we show a decrease of docks. Conrad: Who's data is this do you know? Harberts: Well this is from the A$C's office... Batzli: I'd like to get back on track here and focus our efforts so that it's clear on the record ~hat's happening. I appreciate the fact that everyone's looking at these slides for the first time. Thank you for showing those to us. Do you have anything else you'd like to? Planning Commission Meeting June 2, 1993 - Page 30 Tom Owens: I've got just a couple of more comments and then we'll be happy to, well actually I think there are a couple of witnesses who want to make a brief statement and then we'll be happy to answer questions. Regarding specific uses. We've addressed the issue of docks as best we possibly can based on Ken's personal testimony, aerial photos, the affidavit of the resident next door and I don't know how much better we can do than that and I think we've been very, very, very s~>ecific and to the point. The issue of on site parking is an especially troubling one. As we've already pointed out, there was no off street or on site parking according to the 1981 survey. There are also no cats evident parked on the site in any of the aerial photos. I should also point out that the parking area proposed by the applicant, it seems to me is going to require paving under the, well it's going to require a development of the site and paving under the city code. And if I could point you to Section 20-118 of the Chanhassen City Code, it says that all parking, loading and driveway areas shall be surfaced with asphalt, concrete or equivalent material approved by the city. Nell once we've done that we've, as they' say, paved paradise and put up the parking lot. The other thing we've done by then is we're running afoul of rules of the Minnehaha Creek Watershed District which has jurisdiction over the outlet creek and which has very significant limitations on development of sites of half an acre or greater within it's jurisdiction. It's pretty obvious, or I certainly think it would be from the applicant's photograph that this would be a terrific eyesore and an inappropriate use of the property and you're still left with a probability or likelihood that there's going to be backing onto Minnewashta Parkway. The last point that I'd like to make is that the permit really shouldn't be issued based on the conduct of users of the reservation.and the so called owners association here. They have failed now for ll years to comply with the most simple requirement set out in the beachlot ordinance and that's for a swimming beach and it says that if you're going to be swimming out there, you have to put out marker buoys that comply with certain requirements. Those have never been set out. There's never been anyone in charge down there. There's never been anyone responsible for maintenance or clean up. For insurance. For monitoring.the place. For being a person or persons to talk to or be responsible. You've also heard about the pattern of misuse by non-residents which is very difficult to control given this unlimited access that's...all these association members supposedly would attempt, and frankly that the question, will use has continued right up to this week and one of the last photographs we'd like to show you is the before and after of the grading activity that was done by the applicant this week on the site. Ne don't have extra copies but the applicant cut either a boat launch or an access or something a foot or two out of the shoreline this week. We've got the before and after photographs and I should be better with words as a lawyer so that I could be a nicer guy about this but, frankly'that action appears to me to be in very clear violation of state law, rules of the DNR., Minmehaha Creek Watershed District and the city for grading and dredging activities within 75 feet of the lake. And Ken, perhaps you can show the before and after when the gash was cut and if you have walked this site in the last day or two you'll see that a Bobcat was taken to the roadway to just cut it a little bit cleaner so they could get those cars out there and take the pictures that you wanted to see. That they've presented to you anyway. That's the end of my comments. I think there are a couple of other witnesses who want to comment as well. Planning Commission Heeting June 2, 1993 - Page 31 Harberts: I have a question. Mr. Duff. You had made comment that during the period of time that you'd go out there and you had noted the, I guess the garbage. Had you ever, you had also noted that your tenant had contacted the police with regard to parties. Have you yourself placed any complaints to the city or to the potential owners or easement holders with regard to complaints along those lines? You yourself. Ken Duff: Only talking to people on the property who were using it. Harberts: How long did you live out in that area? Ken Duff: I actually did not live there as my principle residence but we spent our weekends and four families from our church spent weekends there and our family spent a lot of time there...'purchased in 1975 thru '85 at which time... Harberts: Have you ever, you talked also about the fact that you were paying taxes as well as, now investigating what liability you may be at risk at since you are the owner. Have you researched that issue before hand? Has it ever been an issue or what prompted you now to start looking at the liability issue and things like that? ...use or if you're talking about misuse? Ken Duff: Well, it's been a concern right along and I do have insurance coverage. But the way things are today, no matter how much insurance you have, you still...and I don't like that exposure. And I don't feel I should be exposed to that kind of exposure on my own property by misuse. Farmakes: You mentioned before 'that there were a reduced number of residents that had use under covenants of your purchase agreement for that reservation...What was that in regards to? Ken Purr: The 8 lots...When we purchased the .property it was zoned...for the private use of the heirs of whoever the original platter or...and the advice that I received at that time was not to be too concerned about that because there were only 8 lots. And the comment made to me was that in checking with the city, that they. said there could never be more use than that... Tom Owens: And that's of course a pretty critical issue that's before the city and in fact if you take a look at your maps and you go from the plat map showing the 8 original lots, the current half Section map showing Lots 3 and 4 split into 16 new lots, you have to look into the future and look at the other lots that aren't subdivided and wonder what's going to be happening next. And at the time of the 1981 survey, the number there is 8 users or property owners. Today it's supposedly 25 or so. I think there might be 1 or 2 people in the audience wanted to make a comment. Batzli: Okay. Is there anyone else that would like to address the Commission? Dana Johnson: My name is Dana 3ohnson. I live at 50 West Pleasant Lane in Tonka Bay and I own the property seuth next to Schmid's Tract, or reservation there. First of all I want to oppose the $chmid's tract Planning Commission Meeting June 2, 1993 - Page 32 recreational and agree with Ken Duff. I've been involved with my property for approximately 3 years now and I've been eyeing that property for the last 5 years. I lived over in Minnewashta Heights-for the last 12 years, since 1979 and I'm an avid boater and waterskier and I've never seen, I've never seen more than 2 cars there on that lot in the last 12 years or 15 years I've been going over there. Some of my concerns are, you know I guess obviously the concerns that Ken expressed also but the maintenance of the recreational beachlot. Now in the last 3 years I've spent a lot of time, almost every other day over there fooling-around with my lot. Just doing things that you do when you're getting ready to build a home. And in those last 3 years, I really haven't ever seen the grass mowed over there. I've never seen the creek cleaned up except when I do it, and I do it all the time. And the kids, you know obviously you know ! don't think the $chmid's Tract people are abusing it at all. I do think there are people coming in there. Like for instance this, here's some pictures that I just took on 5/30 of '93 and it Just shows you car batteries in the creek. Oil cans. Beer cans. Things to that effect. You know it hasn't been maintained and that's a big concern of mine and my, because t have two kids too. And there's glass bottles in there. Ail sorts of different things that I cleaned out of that creek at time to time. Also you know, I look at the parking area too and there's no other areas on the lake with 50 feet of parking that has, that can park cars there. An example, probably the best example of that would be Minnewashta Heights. They have similar, they have 60 feet of, and that's where I used to live over there. And they have 60 feet over there and they're not allowed to park cars down there overnight or have a parking area, and they have a paved parking lot, parking ramp all the way down to there. Plus, when you take in consideration of the creek, they do have 50 feet of lakeshore. 50 feet of property but about 25 feet of it is non-useable due to the fact that there's a creek there...before too when I have seen them, just the other day I did and they were drinking and partying down there making a lot of noise. You know another point is I see people again from all over the area stopping there with their cars. Using it as a swimming area. ! even know of one person in Tonka Bay that goes down there, the last 3 years and swims with his dog down there. Takes his dog swimming. My big concern too is like with Mr. Owens said, is that the development there is going to get bigger and bigger and bigger. Just like the whole area has grown in the last 5 years. And there's 25 families there now. How many more families can get there? I feel like the Schmid tract area has been abused by other people that do not live there and ! just feel like there isn't any accountability there at this time. Again, there's no association members. There's no people that are collecting dues or anything, so thank you. Batzli: Thank you. Farmakes: ! have one question of Mr. Carlson. Did the association have a permit from the DNR to modify the shoreline? Gary Carlson: The shoreline is such that I could have done it with a...and you can't have a beach and have children climb over an ice heave. Ail of the property owners, including MT. 3ohn~on, have gone through tremendous beach changes and all of the owners along the whole western edge of that lake have changed that beachlot from what it was when we first bought it 23 years ago. There were just lily pads up the shore...and brush growing... Planning Commission Meeting June 2, 1993 - Page 33 Now there's homes with lawns down to the lake. Sand and all of the weeds have been poisoned out of the bay that we...I went out on my dock just the other day, look off the dock. Instead of seeing, as I have in the past, the green weeds, perfectly green weeds, there's what's happened in Minnetonka. People poisoning the weeds and they don't allow the lake to act naturally. There's slime on every one of those. It's just getting to be the weeds. Farmakes: Okay, so you didn't have a permit. Gary Carlson: We didn't modify it any further than what we have through the years...It wasn't a significant change. I go down with my shovel and put back the hemlocks...We have an offset we have to stay in from the edge of Mr. Durr's property, or the surveyed edge of our 50 feet and that we don't want to disturb. That surveyed area. Then we have an area where the kids play in the sand...seaweed is accumulated you rake that off. Then you leave that and the...it's not a significant change. Batzli: Okay, thank you. We have someone else that wants to address the Commission before I'm going to give you re~)uttal time here. Mary Jo Moore: It's Mary Jo Moore on 3231 Dartmouth Drive. This is obviously more complicated than the ~rmal beachlot ordinances. I just want to go on record that I'm opposed to any further expansion than what the City did on the '81 survey. I am for any beachlot. In this case I wasn't aware there was a beachlot on Lake Mtnnewashta. I've been a resident there for 13 years. I'm aware of Dana 3ohnson's pro~erty, where the house that was torn down. From that point_ east, I always thought it was just the greenhouse property, or the Smith greenhouse. Something and it was always very wild. In fact I never even noticed Mr. Durr's house until the fire department burned it down. $o I don't believe there's been much useage of this property but I'm going .to defer that to your '81 census and ask that no expansion beyond that. Thank you. Batzli: Okay, thank you. If you'd like to address some of the points, I'll give you a couple minutes but please, try to be brief. Mike Melkert: Brian, I'll keep it very short. You have to realize I didn't see some of this evidence before the hearing tonight so that I need to address it right now. Also my biggest fear is that a lot of irrelevant issues have been raised by Mr. Durr and his attorney. And my biggest fear is that this meeting is going to be closed and one of you's going to pick up on that and it's not relevant and it's going to take control of this whole thing and the decisions going to be made on an irrelevant issue. So I just want to run down those real quickly. Mr. Durr's attorney just said to start off with that if one thing is proven tonight, it's going to be shown that Mr. Durr has spent a lot of time and money on his presentation this evening. The fact that he's affluent and has the ability to spend a lot of time and money is not relevant to this proceeding or the fact that he can beat his less affluent neighbors to death by filing legal proceedings. What's relevant here is the Chanhassen ordinances and what was in effect in 1981. And Commissioner Conrad raised that point. That what you've looked at all the time in the past is what there was in 1981. That is the relevant issue here. The 'other issues that Planning Commission Meeting June 2, 1993 - Page 34 have been raised are not relevant. The issue about the easement is not relevant to your proceeding. What Mr. Durr said is not correct. He's trying to get sympathy from you. That easement was put in in 1914. He had an attorney from Dorsey-Whitney examine his title. That attorney noted the easement. The property, as the attorney on your commission will tell you, is a bundle of sticks and you can split off rights to that property. He bought his property knowing that easement was there and knowing that both the heirs and the assigns of the property owners had a right to use that property. And they've testified to that over the years, over the past 30 years, over the past 10 years, in 1951-91, that they were using that property. I'd further like to point out that whether or not the Watershed District has an interest here is not at issue in this meeting. What's at issue here is whether or not the permit's going to be granted and if something needs to be done with the Watershed District, then that can be addressed with the Watershed District at a later date and it's inappropriate to bring that up at this meeting. Finally, we've asked that you reconfirm your previous recommendation and also allow them to unload small boats at the ramp based upon the evidence and based upon the written letters that I've given to you with my letter. Because we have now submitted additional evidence on that point. Mr. Durr has not presented any evidence to contradict that. His slides and the survey represent a slice in time. They represent one minute in one day in 1981. We've had oral testimony here from residents that that dock was out in 1981 and that the property was being used. There were canoes down there. That there were up to 10 cars down there in 1981. That this property was being used as we are specifically asking the permit to provide right now. Mr. Durr has not disputed that with evidence and you need to understand that. And the fact that his affidavit and his aerial photogrsphs conflict prove that point. They prove that the dock was out there when the person that made his affidavit saw it out there that year. Made the affidavit but it wasn't out there when the aerial photograph was out there. It was just put out at different times and that's especially true with this piece of property because they didn't live right on the water. They put it out when they needed to use it. They had boats down there when they were using the boats. They didn't store them down there permanently and that's not disputed at all. That the boats were not kept down there for the entire summer. $o of course somebody that goes down there for one day is not going to see everything. The final point I'd like to raise is that March 17th hearing, Mr. Carlson testified as to leaving boats overnight and leaving boats on the dock and at that time he found there was sufficient evidence to recommend that that be placed in the permit. I noted that he did not testify to that tonight. He'd be happy to do so if you'd like him to testify to the use but you've heard it already and it's already in the Minutes and I'd like to rest on the Minutes, unless someone has a question as to that. 8atzli: I don't think so. Mike Melkert: Okay, I have nothing further. 8atzli: Okay, thank you very much. Is there anyone else that woul~ like to address the Commission? Audience: Can I make a brief statement? Planning Commission Meeting 3une 2, 1993 - Page 35 Batzli: Is there something new that hasn't been talked about yet tonight? Audience: Well it's something... Batzli: Ah no. We're not here to talk about the easement tonight really. Okay. Is this something new? Gary Carlson: In '81, those are the years when a lot of waterskiing was being done by our group and by the Gelisch's and the Friberg's and we a lot of times waited until the weather was well warm to even put out a dock. We'd ski the first several times without a dock. But we did eventually get the dock out that year. I do have one suggestion. I made suggestions to Mr. Durr through the years that as he develops his property can take this 50 feet and add it to a conforming beachlot but our access was started before the city was a city. Back when it. was a small village and it's been a grandfathered pre-existing conditional use and continued in a recreational manner. The one suggestion I would have to Mr. Kenneth Durr is when he does develop the city requires certain amounts of properties for park and recreation. He can donate the 50 feet. He can also give the 50 feet anytime he desires a value on it to the Minnetonka Watershed District and you will not have to pay taxes on it any further. It was put in $chmid's Acres that Mr. Durr now owns. There were 7 or $ children then when $chmid divided and that's why, the $chmid that got the lakeshore, he has to pay the taxes on that. Ail the other $chmid's and heirs and assigns that didn't get the lakeshore, they get to use his 50 feet of paid lakeshore because he has the other 800 feet. That was under great wisdom by the Schmid's when they divided it. Batzli: Okay, thank you. Is there a motion to close the public hearing? Mancino moved, Conrad seconded to close the public hearing. Rll voted in favor and the motion carried. The public hearing was closed. Harberts: As I understand the issue before us has to deal with 195~. ~'m concerned about the survey's reliability. I have to concur that it is just a point in time. I think Mr. Durr did an excellent job investigating. Presenting the information. With Mr. Carlson, as I understand really the burden in my mind of proof was needed was to establish the recreational use of the property. I think there certainly is an issue of accountability here. I'm not too versed in you talk in the area'of accountability in terms of how it's maintained. If it's good or bad but I think that the Association or whatever may want to become a little bit more structured and look at that. It's not going to get any better. I would, I'm in a position at this point to basically reaffirm my decision that we made in March of 1993 because I feel that there has been ample information that supports that this was a recreational facility. If there was a dock, whether or not a dock, I don't know for sure but I guess I~m Just going to rely on the testimony that was provided. We've got someone here from 1959 that can attest to the use of it. To me that provides me a little bit more information to base my decision on than picture in time. It certainly is a confusing issue. Batzli: So you're reaffirming what we did on March 17th ,. which was 10 off street parkings, no boat launch, 45 foot seasonal dock, one canoe rack, one Planning Commission Meeting June 2, i993 - Page 36 boat on land, one boat on dock? Harberts: Yes. Batzli: Ladd. Conrad: Things have changed in my mind. I find it tough to get my arms around this because the last time you .were in I was not really clear on where the association, where the people were and where the access was and where the neighbors were. I think it's a little bit clearer now. Definitely there's a recreation beachlot here with certain rights. Some things bother me and they've been brought up tonight.. And some things that just have to change. And we heard some of them. I think the accountability and the maintenance issues, to me access is the big issue. When I see a road that's been put in, it looks like a road. It's not paved but it's a road and what we've done with other, any kind of beachlot, if there's a road going in and there's a non, basically a non resident type issue, it's uncontrolled. And that worries me a great deal about this one. There's got to be some control. On the other hand, this is a good example I think of a low, you know what I've read into the situation. It's a low useage property, which is real good and ! like that. I think it serves the neighbors and I don't think in general it's been abused by the owners of the reservation. And I don't know that there's an association. ! don't know what it is. And I don't know what we're going to do tonight because I do recognize seriously as the parcel develops and a neighborhood goes in, I'm not comfortable with the beachlot looking the way ilt does today. What we try to do is protect a resident from intensive use. Make it pallatable, whether that resident comes in later or whatever. And I'm a little bit worried about 10 cars on a 50 foot strip parking. Now if they were part, the owner was part of your association, I'd let you Struggle that. You'd work that out. In other words, well. And it would be far better than any solution we'd come up with. Batzli: Can I interrupt you just one second Ladd. Kate, what did we do with the apartments on the control issue? Can you refresh my memory? Aanenson: Sure. That question came up is legally could we force them to put a gate up. The City Attorney's position .was no. But in effect, and in being good neighbors they decided to in their own best interest to be good neighbors with the adjoining property owners, that they would put a gate up to add to security because that was the main issue. And it was just more good neighbor kind of thing that they did secure the property. Mancino: As we did on the Colonial Grove too. That one has a nice gate and you know right away that it's private pr'operty. Aanenson: And a lot of them do have posts and I think that's something that you could recommend too. They're posted association members only. Batzli: Okay. Sorry Ladd. Conrad: No, that's a valid point Brian. But we need those things happening on this property. And maybe we legally can't do it. We can encourage it but I think it's something that is real.' It's very evidentally Planning Commission Meeting June 2, 1993 - Page 37 in need. Okay, going back through. And to tell you the truth, I'm not sure what kind of motion I'm going to make tonight or what I'm going to vote because if I don't see some things happening from the association, would be a lot more strick in what I'd allow happening on this land. In other words, if I don't see a gate going up, I would not vote for 10 cars or 5 or 6 cars being there ever. So I guess I'm, the more I think about this, I don't know that I can come to a good solution myself tonight and a recommendation. It's almost like I'd llke the parties to determine what it should be. But let me tell you Just some things if I were to look at it. There was motor vehicle access and I think that should be. The off street parking, we said 10. I don't think that's appropriate for this area as it develops. I don't think I'd want 10 cars parked in my property. $o I have a problem with that. Even though maybe there were 10 at a point in time, sometime, I don't think that's appropriate for a 50 foot wide strip. And don't think there's any evidence to show me that there were 10 cars so I could go back and put down any number of cars that I thought was appropriate right now. The boat launch, I don't like the boat launch. don't mind it for canoe launching and when I think of fishi-ng boats and the last time in, I think of fishing boats as 10 and 15 horsepower motors. I don't think of them as 60 horsepower motors. That's still a waterski boat to me and when I see an access that's been driven down there, that bothers me and I know what you're saying in terms of grooming it for a beach. Boy, it sure looked like a boat launch to me. It looks like a launch site. The docks I don't have any problems with. I think that's not abuse. I think that's appropriate. I think that speaks to the intent. The intent that they've used it in the past. The canoe racks, I don't know. If it's well designed, and usually we see where a canoe rack goes and see how it fits with the neighborhood. Well I don't see that now so I would have a tough time. Is there one there? Kate. Aanenson= No. Nancy had suggested and she mentioned to me earlier and that was that they come in with a site plan showing how they could do that. Conrad: It's almost like we have to see it to even talk about this because I wouldn't let it, if it's not done appropriate, according to what's going to develop next to it, then I'd have to go back to the 1981 survey. It's not there. It shouldn't be there. I think, and the boats on land. I'm not sure what that is anymore. There was one there and if that's the way it is, I guess that's the way it is if lt's been documented. So anyway, I think there are, I almost have to treat this a little bit with some flexibility and say that this is not the beachlot that ! would like to have next to my house. They have the right to have it there. I think they've kept the useage typically very low but I want, which is perfect for this type of parcel. But I don't know how to react to what's in front of me tonight. Batzli: Fair enough. Matt. Ledvina: Well, things have changed from the last time we saw this. We have the city inspection report which shows these was no dock there. And when we looked at this the last time, we thought there was a dock there in 1981. In 1981, last time, or I should say the last time we looked at this, we thought there was parking use and our inspection report says there wasn't, so I don't know. I guess when we started this we were to look at Planning Commission Meeting June 2, 1993 - Page 38 the 1981 survey and this apparently says there are no docks. The documentation, the photos that were provided shows that there wasn't a dock. There may have well been one, or there could have been one there but I don't have proof that there was one there. So I have to say that I would support no docks and I would support no parking. I'm not real comfortable with coming to these conclusions so I don't know. It's difficult to look at this. Batzli: So the antidotal evidence and letters from the various long time residents don't sway you that there was a dock? Ledvina: Nell the letters that are provided in here, I don't see anything specifically saying that there was a dock in 1981. I just reviewed them and I didn't see anything. We've heard individuals say that there was a dock there but again, I don't know. It's hard to evaluate. Batzli: I, well I'll get to that when it's my turn. I'm sorry, were you done Matt? Ledvina: Well just one other thing. I don't think the boat launch should be allowed if this thing, or with this permit. I feel that they can certainly launch canoes and fishing boats with small motors but I don't feel it's appropriate to be taking trailers and backing those trailers into the lake. If you want to carry a fishing boat off a trailer and drop it in the water, that's fine. But I think the issues as it relates to erosion with that launch, and the protection that's needed for the lake, outweigh the discussion that I heard regarding the use of that launch. Batzli: Okay, thank you. Joe. Scott: Well I'd strongly encourage gating of that facility and I think what we can do is that if the facility becomes a nuisance as defined, I'm sure we have tons of ordinances of that sort of thing. Because of the sensitivity of this area, I believe that that's something we should have a little bit tighter control on. But I believe that this should be gated. I think that would, and it's obviously something that we can't require. However, to avoid the property from being a nuisance, which I think it causes all sorts of complications with access, that's very important. I always have trouble with basing my decision on anything that looks a lot like a, what I call a balance sheet. A balance sheet is this is where it was at this point in time and a company can appear to be bankrupt one day and be flush with cash the next. So I am prepared to support the decision that we made as a Planning Commission on the 17th of March and I'll let it stand that way. Batzli: Okay. Nancy. Mancino: I support also the decisions that we made on March 17th with one exception, and that is. Well first, before I go to the exception. Is that I do support, I do feel that a dock was in and I trust the witness who came up and said that a dock was in in 1981. I can tell from the survey or the inventory that there was not one on June 4th and there was not one at some date in July of 198~. The exception that I have is with the off street parking of 10. I walked this property in March and I don't think I really Planning Commission Meeting June 2, 1993 - Page 39 got the scope of what 10 cars in this area would be like until I went 2 days ago and walked it. And by the time that you put a canoe rack there, which I think would be good for the property. It would clean it up. Ail the canoes would be in one area. Instead of being chained to different trees in the area, it could all be on a canoe rack. And we also said that they could, we could have one boat on land. By the time you get one boat on land and a canoe rack there, I don't think you can get 10 cars in there. What I saw 2 days ago were 4 cars parked on the property and one of the cars, their two back wheels was off the land and kind of hanging over the creek. So I'm concerned about the erosion that will happen to the creek. I would like to see the association, the applicant meet with the city and do a site plan that takes into account a dock. Specifically where the dock goes. Specifically where the canoe rack goes. Specifically where the boat on the land goes. And where they will dock the boats and then have the, they look at the safety and space left for putting, for parking lO cars and I'd like to see that plan. Batzli: You'd like to see this come back to-us? Hancino: Yeah, I'd like to see it approved and I can't approve it in the form that it is right now. I'm also concerned about the maintenance of the property. There is consistent mowing. That there is trash picking up every week during the summer. There is some sort of ongoing maintenance that we can put on the property. $o those two things I would want to see before I would go ahead and give my okay to the property. To the' easement for 'continual use. Batzli: Okay. Jeff. Farmakes: I think one of the attorney's last comments here. Concerning ourselves with relevant items. I think a lot of what's been said here tonight is not relevant. Maybe lO~ of what we discussed here is relevant to what we're doing here. There's a lot of excess baggage here. There's an ownership issue and it's not relevant here. That's really between the two parties here and what we're here to discuss tonight is what the useage was in '81. That's all we're here to discuss. I'm willing to entertain a reasonable evaluation of what that is. There's.a couple of points where it seems to me it's pretty murky. The City said there wasn't a dock now. That's information that's changed since my original comment. I agree with Ladd that the information has changed here. Some of it I think is very relevant to what we've been doing with these things. I have tried to follow what the city survey was at that time, making exceptions for boats. That if they had a dock that it would accommodate a couple of fishing boats, those boats were out on the lake and so on. So I tried to interpret that as to be reasonable. It seems to me that not only was this area perhaps more low intensive than we thought, but it may be changed. It's use has changed year to year and whoever happened to have a boat to put at the launch. In particular ! think a trailerable boat. One thing I wanted to comment on here is, we haven't defined that here. Trailerable is a defined use. Trailerable boat for access means putting a trailer,, or having a boat and putting it in the water. I think that's clearly defined by the State as to what that is. Access is not picking up a canoe and putting it in the water. Or anything you carry. Perhaps here it plays into the fact that the use here seems to me to be low, goes beyond Schmid's Planning Commission Meeting June 2, 1993 - Page 40 Acres. There's no argument here that the adjacent property owner 1:eels that it's any of the irritation uses or nuisance uses are...to $chmid's Acres. So the gate issue seems to me that if this is maintained as a form of recreation, that the beachlot and access be restricted to those people who it's intended to be used by. That brings me to the next issue. Ne did not probably discuss, because there wasn't as much objection or trying to clarify what the parking use was at the time. I took the applicant's use that 5 or 6 cars were what was in use there and there weren't any boats there at the time. The issue would seem to me that the property was large enough ~:or 5 to 6 cars. It's not large enough ~:or 5 or 6 cars and trailers and it's not large enough, I ~:eel certainly ~or 10 cars, even though I voted for it. Nith this information that we have now, I think perhaps I should not have. I will again go back to the survey that it seems to me that there were cars parked on that site, that it should be very limited, And it also plays into the issue of, that i~ there isn't a gate and we allow cars there, that we'd be leading into a problem o~ who's there. There's Schmid's Acres people. The property adjacent to the reservation or is it the people who are driving to that access parking there and partying. One o~ the things though that really I ~ound bothersome. Ne have been discussing this ~or quite some time and I have property, lake property that I have 'improved. I went through the process to apply and pay to modi~:y the lakeshore and it's a very specific process. As far as I interpret what I have read, you are in violation o~ that process o~ what you did-there. And I think also the intent of what you've done is to expand the use for trailerable access to that lake, which is in clear violation o~ what we're talking about here. I think the before and a~ter pictures is quite telling and I think the city should look at that and discuss that with the appropriate people of whether or not that's in violation of .city or state law. I would not be adverse to tabling this mess, i~ that's what wants to be done. Otherwise I'd be willing to vote on it too but I would not Nant to veer ~:rom the city's original survey here. Batzli: So where you would differ from the Narch 17th recommendation was, you'd delete the off street parking completely? Farmakes= Yes. Unless a reasonable agreement could be made here, a modification to where that would be controlled. I think the issue of controlled access was not something that we discussed. And that it was a problem. Batzli: Seasonal dock. Did not show one in '81 so you'd delete that? Farmakes: I would be willing to buy into that argument that there was a dock there and not put out or one the year before based on how the reservation was set up and access to the lake. Batzli: Canoe racks, there wasn't one so you wouldn't allow one now? Farmakes: Based on what we've done with the other lots, we have not been tight on whether or not they can have canoe storage on property. Batzli: And the boats on dock, was none in 'Si so you'd put & 0 there? Farmakes: I'd put a 0 there. Planning Commission Meeting June 2, 1993 - Page 41 Batzli: Okay. And if it came back, what would you be looking at? Farmakes: I'd say that the issue of the access and how, whether or not they put a gate up or whether or not they'd store cars on there. It seems to me that those are kind of an interrelated issue. And it' seems to me because it is a low use, and there is garbage and there is a nuisance factor there, that maybe they can come up with something on how to modify that. Batzli: See I come back to your first point though. Farmakes: That it's not part of the Batzli: Which is it's not part of it, yeah. Farmakes: But it is, as I said before, sometimes whe~ you look at these things there's a practical issue to look at as well. When we're defining it. In the interest of good neighbors, it seems to me there's a problem there. Batzli: Thank you Jeff. I was sitting here racking my brain during part of this process. My father lives on Lake Minnetonka and I've put in a dock every year since I was knee high to a grasshopper, and I can tell you just about what happened every dock putting in event but I would be hard pressed to tell you what years some of the neighbors put their docks in and out. Or when we put our's in. Sometimes bad' memories fade I suppose. Put it in early and it's kind of chilly but I'd have a tough time with that. And you know, I don't know how I can appreciate that some of these people are saying the dock was there, wasn't there. But when you put it in, I built some docks in a channel, rebuilt some and I can't even begin to tell you the year other than it was. probably.when I was in high school or college so that's a swing of about 7 or 8 years. So I have a hard time really kind of trying to figure out what people are remembering and what they're not remembering because I for the life of me can't remember it and I'm doing it every year it seems to me. Maybe I am. $o having said that, I think that the recollection of a lot of people is that there was a dock here. It seems that there are canoes or boats or something on the property, at least one, back in '81. So the thing that I would change, based from our last recommendation, is to eliminate the off street parking. I would allow a canoe rack. I think it's a low intensity use. I don't believe that that's really what I thought we're doing here, and we may become hypertechnical over this point but to figure out what the intensity was back in '81 and make sure we're not expanding'beyond it tonight. I just don't see how allowing a rack to be built for people that may store canoes there from time to time increases the intensity. And the boats on the dock. I really haven't heard anything from the applicant that there was one there. I think what maybe he was getting to that point when he talked about he was doing a lot of skiing back then. 8ut I don't know that he said he actually docked anything there. So I would view as our March 17th results except I would eliminate the off street parking and the boats on the dock. Harberts: What's your basis for eliminating all Of the off street parking when in fact there's, you know we're allowing the dock because we've got supporting testimony. And I gathered from the same supporting testimony Planning Commission Meeting June 2, 1993 - Page 42 that there was off street parking. And so is it just from that practical perspective? I'm just trying to get a basis here rather than just saying, no off street. Batzli: ! didn't read from the letters, and maybe my recollection's fuzzy here but I didn't read from the letters that they said they drove down there, did they? Harberts: Well I don't know if it was primarily from the letters but from the testimony tonight and I would certainly be open to revisiting the 10 versus some other maybe a lower number but I think that the question here is is that we're basing the decision on basically testimony tonight in terms of what happened in '81. And so ! think, I'm just wanting to make clear in my mind that we're being consistent rather than okay, we'll give you this but not that but I think the issue of what's practical, especially with what's going to be the potential development. Then also, I think there is a clear issue of accountability because I think from the entire Planning Commission as well as from the city, we want to 'make sure that we're good neighbors. We've got an issue of what's not perceived as a good neighbor so I think that accountability is8ue's there but I think, you know from my perspective right now is, what's the, how do you support zero street parking in terms of the rationale based on the rest of your decision here? Batzli: My decision was based on the fact that, as I recall, the only thing that was said about the parking was if his family or his wife's family came for the weekend, they might park down there. 4th of July or something. Scott: Wouldn't it also depend too if the date'of our survey was a Wednesday when there's nobody there versus on a weekend, and we don't really know when that. We have the June 4th for the '81 survey. Can you figure out which day of the week. If it's a Wednesday, I think that's significant. If it's a weekend. Aanenson: I'm sure it wasn't a weekend. Batzli: What I'm getting at here is-that. Scott: Okay, so it was during the week, because business hours. Aanenson: Right. Scott: And how can we determine, and it seems like since the useage was relatively low, it was primarily used on the weekends. Batzli: That's the wonderful thing about this is that reasonable minds can differ but what I heard was that, his use was that he was using it as a parking lot when family came over and not in really connection necessarily with the beachlot and not by residents or potential users of that beachlot. He's using it as a family parking lot. He's not, it's not the people that are coming from the houses that have the right to use it. It's his family and his wife's family which to me is not a proper use to establish that there was a use by the peomle that could use it on'the property. That's Planning Commission Meeting June 2, 1993 - Page 43 why I'm saying there was no use, because it wasn't a proper use. Now, if he wants to convince the Council, fine. He can enter more evidence. I'm sure the City Council will let him but that's where I made my decision was that the use that he was talking about was his family's use and not the people that had title to use that lot. So okay. And he said that, I think I ran down through it and I would entertain a motion. I've heard a couple people say they want to see this back. I don't really want to see it back. I think that both sides have presented a lot of evidence. They gave it a good shot. Both sides. I didn't feel like there was, there may be a feeling that it's kind of somebody trying to beat up on you but I think they did their homework, and as did you. You got a lot of the people with a lot of memories out and I appreciate both sides efforts in that regard. But I don't think that seeing a site plan would help me decide this issue. What I'm trying to look at is what evidence did they present regarding the use in lc)B1 and it should, we're trying to determine that .intensity and I think we can do that tonight. Harberts: Before a motion is made I'd like to just maybe get some reaction if a possible motion was made in which, you know if it was moved on to the Council but with the direction to develop, and I'll use the word site plan. Maybe a written understanding or something, in terms of having staff work with them to determine what practical for any, if any off street parking and then I guess the question of accountability because I. Batzli: Well the thing that concerns me most about this is what Ladd brought up and that is, we may not be ablelto force them to put a gate up but it sounds like that's the big problem that we're seeing. Is we're seeing environmental pollution by the kids, whether they belong there or not. By throwing cans and bottles and whatever and that's got to be controlled somehow here. Whether it's the city doing it's job better or asking all the neighbors. Basically going out and telling them, anytime you see anybody, call us and after a while the kids will get discouraged if that's the only way we can do it. It doesn't seem to me to be a big deal to ask them to put up a gate but if they don't want to do that, maybe that's the way we have to do iti But that to me is the big issue here is to control this because it's not an intense.use once you get rid of that. Scott: Is there a, from maybe you can craft a motion and get kind of a 10 spaces, no spaces, somewhere inbetween. Would everyone support 5? Conrad: No. HaTberts: No. ! would suggest that the motion include that, maybe with the help of staff, that the motion move forward with whatever, if any appropriate number of off street parking you know after staff has the time to review it because of the environmental impact. And if the determination from staff is zero, okay fine. Zero. They're the experts here. Scott: Do we want to see this again? Harberts: I don't think we need to but.. Scott: We're all prepared to vote on it? Planning Commission Meeting June 2, 1993 - Page 44 Harberts: I think the only issue at hand is really the off street parking. And my only drawback or hesitancy here in terms of zero is simply because we're basing the rest of the decision in terms of allowing the dock and stuff based on testimony and I feel the testimony is there but from a practical perspective, it may not be appropriate for off street and so that's why I'm saying move it. If the decision is to move it forward to the Council, then with the suggestion or recommendation that staff make a determination with the people involved, to insure that there is accountability, I think that's a practical matter. And second, to determine, if and how many off street parking should be allowed. Also given the fact that we've got some future development that's going to be occurring in the area. Conrad: Definitions change over time and off street parking now is a whole lot different than off street parking back in '81. As you build new houses next to this, it takes on a whole new definition. And that's why when we go back to '81 and we say, what was off street parking, geez it could have been 50 real easily. I know you can probably get 50 cars parked side by side there. I have a problem with'that and sanctioning that use. What we're doing is sanctioning a use for the future. Forever. I just want you to think about that. Harberts: But I think Jeff's point though in terms of off street parking was valid in terms of trailers. I don't feel this is appropriate for trailers. Farmakes: It would be an expansion of use... Harberts: But what constitutes off street parking you know back in 1981. Did that include trailers? I don't know. That's why I think. Farmakes: I don't think it said that there wasn't any boat launching. That would be trailers. $o the issue, the point I was trying to make is that there is an association of these people who are using a nuisance factor and parking in the area. Not launching boats but parkin~ there and bringing their kegger or whatever and creatin~ a problem. And legitimate people who are driving up there and want to go swimming. They just happened to drive out there because they don't want to walk a block or whatever it is to get there. My point is, if you put up a gate or I was just offering that as a solution. The problem perhaps if there was a gate, as a trade-off. Batzli: Let's not speak in hypotheticals any longer. Let's speak about this in concrete terms of a motion. Conrad: I would make a motion to approve a non-conforming recreational beachlot permit for Schmid's Acres Association with the following stipulations. That motor vehicle access is approved. That there is no off street parking allowed. That there is no boat launch permitted. That a seasonal dock is approved. .That canoe racks are approved. That a boat on land is approved. That boats on dock are not allowed. And then I would strongly encourage the homeowners association to develop some kind of a maintenance program. That the homeowners association put up a gate that is controlled by the homeowners. That a site plan be submitted to the city staff that would tell them where the different amenities of this site can Planning Commission Meeting June 2, 1993 - Page 45 be Iocated. Batzli: Is there a second? Ma ncino: I seco nd. Batzli: Discussion. Harberts: I'm a little uncomfortable in terms of the no off street.parking just simply in terms of basing some rationale but from a practical matter, from a future perspective, I guess I have to endorse it from that perspective. I guess as I understand the applicant does have the opportunity, if they felt strongly about it, to bring it up before the Council and I think that there's avenues t.hat if they do want off street parking, they can talk to staff and then work it out with the Council. $o since this is a recommendation, I can support that. Batzli: I thought you were going to say that we could put up a little park and ride right there. Harberts: Hey, Dial-a-Ride goes there. Scott: I would agree with that. With what Diane said and then if the applicant wishes to lobby for things that aren't'in here, they certainly can go to the Council with that. So I wc~Jld ~upport Commissioner Conrad's motion. Batzli: Any other discussion? 30 seconds or less? Gary Carlson: Yes. The Council was about to pass this and the only reason they sent it back to the Planning Commission, they wanted to recommend a gate and signage to prevent the people... Batzli: I think if you present evidence to the Council that the use existed in '81, where it was people who were entitled to use the beachlot and not just someone's party and you were using it for excess parking, that they may give you a few spots. Ledvina: Mr. Chairman, I have one thing that I would like to add. I guess I would like the staff to evaluate the potential attrition of non- conforming use through the lack of a dock or whatever. If that's the case so I would like the staff to evaluate the date that's been generated, the aerial photos, etc, I'd like that to bear into the discussion that goes up to Council. Batzli: Okay. You can have 30 seconds too then. Tom Owens: Point of clarification. I believe the motion said with canoe racks. Are we going to have canoe racks or one canoe rack. Aanenson: One . Batzli: I think one. One, we'll clarify that. Thank you. Is there any other discussion here? Planning Commission Meeting June 2, 1993 - Page 46 Mike Melkert: Can I just make one other point? Batzli: Okay. Mike Melkert: I think that 'since we can't read the testimony back like you would be able to in some other type of proceedings, he did testify that there were cars down there in '$1. In addition, the affidavits submitted by the other side from the attorney specifically says that there were 2 cars. He saw 2 cars parked on the property. And that's also in your record and I Just wanted to point that out because that's a piece of evidence that you are considering and it's a piece of evidence that is sworn under Minnesota law. Batzli: Right. I would agree that this says there's 2 cars there but it doesn't say when that was. It was a maximum of 2 cars-without a date attached to it. And like I said, if you can present evidence, whether it's antidotal or letters or affidavits yourself to the Council, they may give it to you. Our feeling is we're very concerned about it, obviously and we weren't convinced that we should, that you carried your burden on that particular thing. That doesn't mean you can't give it a shot to the Council. Is there any other discussion? Conrad moved, Hanctno ~econdedthat the Planning Commission recommend approval of a non-conforming recreations! beachiot permit for Schmid's Acres Association ~ith the following stipulations= Hotor vehicle access, seasons! dock, one canoe rack and one boat on land are permitted. There Hill be no off street parking, boat launch or boats on the seasonal dock permitted. Also, to strongly encourage the homeowners association to develop some kind of a maintenance program, to put up a gate that is controlled by the association and that a site plan be submitted to the city staff that would tell where the different amenities of this site can be located. Ail voted in favor and the motion carried. PUBLIC HEARING: WETLAND ALTERATION PERMIT R~QUESTED BY THE~ ¢~TY OF CI~SSEN TO ACCOMMODATE IMPROVEMENTS TO POWERS 8OULEV~D. Kate Aanenson presented the staff report on this item. Batzli: So you're mitigating/no net lossing by the shaded in replacement area? Aanenson: Correct . Batzli: Okay. And are you doing all of this work in accordance with the newly adopted Best Management Practices dealy bob. Aanenson: Yes. Mr. Hempel assures us that we are. 8atzli: That's not a condition here. We normally require that of all of our applicants. Aanenson: Thank you. That should go in there. And I also failed to Planning Commission Meeting June 2, 1993 - Page 47 mention that, because it's less than a half acre, there's no, it would be covered under the nationwide permit. Of the Army Corps. But we should, put that condition in there that we follow the City's Best Management Practices. Batzli: Yeah. Dave, did you have anything to add? We made you wait here the whole night. I figured you wanted to say something. Hempel: Sure. Mr. Chairman, Just to piggyback on Kate's comments here. The fill of this area is necessary due to the road widening. It's actually a transition zone from a 4 lane road back into the 2 lane rural road that's on Powers Boulevard. The fill slopes out there are very steep. 2:1 slopes which are difficult to maintain. That's why the necessity of filling this portion of the ditch of the wetland; Batzli: Okay. Is there anyone else that would like to address the Commission? Scott: Any attorneys? Jim Dvorak: I guess I only have two things to say. As Kate said, my name is Jim Dvorak from Strgar-Roscoe-Fausch, consulting engineers for the City. We do a lot of work with roadways and wetlands and we're very sensitive to wetland impacts. Wetland fills. We do environmental assessment worksheets. We do environmental impact statements. We're well versed in the rules and regulations of the agencies that govern this type of work. I guess the only thing I can tell you is that we have made every effort to minimize the impacts to this wetland. As Dave said, there's a 2:1 slope out there. We're continuing with that 2:1 slope. That's as steep a slope as we would recommend so there's, the only thing that you can do to avoid filling the wetland is to steepen the slope up beyond the 2:1. That is something we would not recommend. Or build an expensive retaining wall. In this case, based on the minimal impact, we feel that fill out into the wetland and then replace it with mitigation area is appropriate. I guess the only other thing I want to add is there's no dock or anything associated with this fill. No boats. No docks. No parking. Conrad: Where were you in 19817 Mancino: When you create a new wetland, when you mitigate a wetland, do you take the existing, some of the existing vegetation from the old and put it in the new so that you can have the same ecosystem? Jim Dvorak: When we construct a new basin, we typically like to, as you say, over excavate the inplace soils and then haul in the muck. What you want is that seed bank that's in that organic muck soil. So that you get something growing right away. That's fairly important to the success of establishing it as a wetland. In this case, it's not a real kind of a canary grass type of wetland. It's not a cattail or something like that in this area. So I don't see that as a problem but we will be cognizant of the fact that we need to get this thing up and growing again as a wetland. Hempel: Mr. Chairman, I'd like to also point out that previously back in 19711 believe a sanitary sewer line was run through this same area that Planning Commission Heeting June 2, 1993 - Page 48 we're looking at mitigating and also filling. So there has been previous impact to this 20 some years ago. Batzli: Did the City get a permit for that? Hempel: I don't believe there were such rules back then. Aanenson: I think what we struggled with too is that this is a ditch section of that wetland and whether or not it even classified. Ne went out and had it re-surveyed to even determine whether or not it was part of this wetland because really it functioned as a ditch for a number of years, but it does have wetland characteristic so we went ahead and classified it as part of the wetland. Batzli: This is one of the ones surveyed by the SWMP committee? Aanenson: The wetland itself, yes. But this ditch section, yeah. Batzli: Is there anyone else that would like to address the Commission? And let the record show, since we don't have it on tape, if you've got a new tape in, that there's no one else in the crowd here. Is there a motion to close the public hearing? Ledvina moved, Hancino seconded to close the public heaTI,~. All voted in favor and the motion ca;;led. The public hea~in~ was closed. Batzli: Jeff. Farmakes: I have no further comments...if you could take a look at that sales office that we approved adjacent to this. It's starting to look like a last chance gas station. I think they're not complying or conforming to what their original agreement was. Batzli: Skirts and things like that? Harberts: Yeah, and a deck. Farmakes: They have 3 or 4 signs sitting up there. A couple of them are empty and I don't know what they've got. Ledvina: Just to expand on that. There is erosion that's taking place off of the north side of that. It's by-passing the erosion fencing so if we could let the... Looking at the condition, the construction boundaries, in the first condition. It says Type III erosion around the construction boundaries and when I look at the map and it should actually says, construction limits and I really can't determine where the heck that goes and I think that refers to the road. I'd like to clarify condition 1 too. To relate to, it's a little bit ambiguous but it's construction boundaries for the wetland, fill area and replacement area. Just to reiterate the need to use that in the replacement area and then that's it. Conrad: Pass. Harberts: Pass. Planning Commission Meeting 3une 2, 1993 - Page 49 Batzli: Do we normally, I mean we normally have a map that we're looking at and we approve it in accordance with map or plans dated whatever. Are we looking at Attachment #1 here? Aanenson: That really is the best map. Otherwise it's on the big construction drawings and this is much more detailed as far as. Batzli: Do we have a. Aanenson: This is more accurate than the construction plans really. Batzli: This one that we're looking at is more accurate? Hempel: This one is actually a reduction of another site plan that was prepared by the developer of the Oaks actually went out with the survey crew and topo the edge of the wetland and also the trees that are there and provided this drawing for us. Aanenson: As you recall, remember I said originally I though it was a ditch section. There was concern about the trees and that so we actually resurveyed this specific area so this really'is the best d~tailed map. Batzli: I guess what I would suggest then is whoever makes the motion that we recommend approval of the permit in accordance with the staff report and attachment included. That's my comment. Ledvina: I would move that the Planning Commission recommend approval of Wetland Alteration Permit #93-3 with the staff conditions. Modifying condition I to read, Type III erosion control shall be place around the construction boundaries for the road and for the wetland alteration and replacement areas. Number 2 to stand as is in the staff report. Add a condition number 3. Ail activity shall be conducted according to the City of Chanhassen Best Management Practices Handbook. And condition number 4. That the construction be conducted in compliance.with Attachment #l of the staff report. Batzli: Is there a second? Conrad: Second. Ledvina moved, Conrad seconded that the Planning Commission recommend approval of Netland Alteration Permit #93-3 with the following conditions: . Type III erosion control shall be place around the construction boundaries for the road and for' the ~etland alteration and replacement areas. 2. Netland replacement shall occur concurrently with the filling of the wetland. 3. All activity shall be conducted according to the City of Chanhassen Best Management Practices Handbook. Planning Commission Meeting June 2, i993 - Page 50 4. That the construction, be conducted in compliance with Attachment #1 of the staff report. Rll voted in favor and the motion carried unanimously. 8atzli: It will probably be on, will this be on the consent agenda the next meeting? Aanenson: If we can get Minutes. Hempel: We'd certainly like to get it on for the 14th. Batzli: Thank you very much for coming in Dave and the consultant. Let's talk about our draft memo under Open Discussion. We didn't have any Minutes, right? This time, for some reason. Aanenson: Nann's been on jury duty so she's backlogged. CITY COUNCIL UPDRT~: Batzli= Okay. Report from the Director. The only thing that I thought was really interesting was they did revoke the conditional use permit. Conrad: Yeah, I'm just amazed. Aanenson: Mr. Lindbery, yes. Mancino: Why is that amazing? Batzli: I didn't think they'd do it. Conrad: I didn't think they'd do it. Mancino: I was at the meeting. Batzli: But I thought, especially the amazing one was the, well. Aanenson: Nez Perce. Batzli: The stuff about the Kirchman's presentation of evidence. Anyway, so they voted unanimously. Anything else we should know about? Aanenson: I'm not sure if Paul put, oh he did.put a letter in here that we're having a meeting next Thursday with the neighborhoods regarding that pedestrian bridge and if you're interested, you're welcome to come to that meeting. Batzli: The auto related use ordinance. What's going to happen on that briefly? Aanenson: We're looking at putting that on the agenda. You'll probably be seeing that the first meeting in July. We're still not exactly sure what tactic. We'll probably come with a couple of different approaches for you to respond to. To get recommendations for City Council. Planning Commission Meeting June 2, 1993 - Page 51 Batzli: Okay. And thank you on our ongoing list for putting number 17 back on there. Discussion. The thing I wanted to talk about'was Matt's draft here and the question is, whether want to talk about it tonight or what we want to do in view of the fact that we've got 5 minutes until we're going to adjourn. Ledvina: Well just some insight as far as putting this together. What I would recommend you do is review it when you have a chance and input as you feel you'd like to. Suggest language changes, that would be great. Expand different issues that you feel are important. As I said, at the back end of this thing. This is just a shell and I reviewed the Minutes from our previous meeting and tried to get on as many points and I just like of whipped this together. A potential way of handling the logistics. If you want to fax me your comments, changes, that would be great and my fax number is on the last page there. If you want to talk to me about it, that's fine. Farmakes: I got the feeling from the HRA they were wondering why we didn't present these comments at the Monday meeting...Is that what you got? Ledvina: Yeah. They were cautious about the thought of us preparing a memorandum or a memo to the City Council or the HRA on this topic. I think they're very, you know action oriented and they want to move everything forward. I tried to assure them that we're not trying to kill any deal in here. We're just trying to provide a perspective. We want to provide some . concrete, positive input if we can. I don't know. And I think they understood that after I, at first they were a little leery of our involvement and wanted to know. Harberts: The input. Farmakes: I think they were concerned that we were going to force them to do their 15th attempt at that drawing. I think they had already spent, what is it they called it? $50,000.00... So the question was, were our comments going to be a building block for recovering stuff that they had hashed out on Monday. Mancino: Where are they in the PrOcess right now? Ledvina: Now they're looking at revision no. 15 or whatever. I don't know. It's really hard to say. They're talking about the size of different elements. Aanenson: Aren't they having a survey done? Farmakes: I got up and talked a little bit, and you got up and talked a little bit and I'm not sure whether or not, this letter addressed what we talked about pretty well I think. They were discussing size of areas but they hadn't determined the use for it. Ledvina: Yeah. They wanted to know how large the running track was and all of this. Harberts: Did they focus on what the use is? Planning Commission Meeting June 2, 1993 - Page $2 Ledvina: No. Aanenson: ~hat's why they're going back and doing the survey. Ledvina: There's many uses that are proposed. Farmakes: I heard two different. One was recreation center and one was a community center, all in the same packet. Harberts: Well and that's why I'm wondering if this SSO,OOO.OO was simply spent because they are not aware of what a good use of it is. Or what the use should be. Like here's the money, build something and then decide what it's used for. Ledvina: And I don't know. I just want to say that I don't know if this approach is too rudimentary or whatever, you know in terms of how I've laid it out. And if anybody else would like to suggest another outline, that's fine. Or other topic. Farmakes: I'd want to consider a specific survey to scienific Survey. They have yet, the criteria they use for surveying is really... Scott: It depends on what you want as a result. Farmakes: Or how you paraphrase the question.. To get the results that you want, you ask the right questions. Scott: You're absolutely right and you can go to a marketing research firm and say, this is the agenda. Structure the questionnaire to give us the data we want. Farmakes: I tried to bring that up at the meeting in discussing questions and they referred it to Bill Morrtsh and that he had done Shorewood and a couple of the others. But the reason I agree with what you say, I think that the point is the question should not come off as, we're going to build one what would you like to see but should we buid one. And if we do, what should it be. And again, your second paragraph that's below there addresses the issue of competing facilities or other-facilities that we're building and how we can... Harberts: Well, but are we just really kind of skirting the issues here because isn't the real issue is something will be built there versus you know when you start, and I don't disagree at all with what you're saying but are we barking up the wrong tree by saying, look at what the existing facilities are and pedestrian things because it's 'my feeling that something will be built in that spot. Period. Ledvina: Yeah, I believe that too. Harberts: So bringing up these points here, I think they're all valid but I think they're just going to like breeze over this and okay. What are we going to build in here. Planning Commission Meeting June 2, 1993 - Page 53 Farmakes: Well the longer that you're, I haven't been on here that long and Ladd's been here a long time. Conrad: Some would say too long. I'd say that. Farmakes: But you can't believe the amount of groups and they all have a use and a definition of what they want and it isn't necessartIy any information or relevant information to back that up. It's just they may have a more vocal organization. They may be more organized than someone else and they happen to get to the line first. And as a grouping this kind of catches me as kind of a grabbag. Well we're going to build this many square feet. Okay, who wants to come in and that's. Harberts: Yeah, here's the money. This is what we're going to build. Farmakes: Because we do have a time constraint here. We have a time constraint and we have to spin money by a certain time or it goes back to the County. So it's, there's a lot of issues at play here. Conrad: So it's like free money isn't it. Farmakes: No. No, there is no such thing as free money. It's a question of who's accountability is it. Scott: Also too when you look at land acquisition costs and I remember, and I can't quote Don Ashworth's comment in the Villager but it was something to the effect that this is the most expensive piece of useless property. I mean because that property is fairly useless but it's extremely expensive. I think I've heard figures of like a million bucks. And couple that with the bruhaha about purchasing 40 acres for the elementary school. We own that stuff now. There's 40 acres of which there's probably an acre or two where a facility could be constructed adjacent to the elementary school where there's probably going to be some facilities that can be shared, because usually when there's a recreational facility, it's hours of useage probably wouldn't compete with an elementary school. So I mean logic, I think you're right. A decision has been made that this piece of property is going to be purchased for too much money and something's going to be built on there. Whereas a more logical approach could be, do we own it. There's a TIF district out at the elementary school. We own the land. Why don't we take the million bucks and throw it into a building and get a hockey rink or you know. So I mean I'm really uncomfortable with a decision has been made that it's going to be built right there. Farmakes: So the question is what. What's going to be made and the issue that's flying around is $5.5 million. Well, what are we building? And that's really I think from a political standpoint, the survey is going to be the whole cart. Scott: And it is not going to be scientific. It is going to be stacked. Farmakes: That's my problem. The last time a community center came around, it was a sales brochure that came out. It wasn't an informational brochure, it was a sales brochure. Now it came out, the general point of Planning Commission Meeting June 2, 1993 - Page 54 it was, we're going to build this and it isn't going to cost you anything. Well who's going to say no to that. Ledvina: I have a question. I don't mean to interrupt but, do you think, and I'll ask each and every one of you, do you think it's possible to gain a consensus regarding this issue from the Planning Commission or are we... I don't know. I'm not convinced of that. Farmakes: I just read it. I like your letter. The only thing I"d change on it would be the specific to scientific. I think that it should be statistically valid rather than off the hip or make up your own question and answer, which the last park survey was. Mancino: Actually I think it would be good to again have a third party to make up the survey and, a marketing research team go out and even have focus groups come in and take people from different areas. Farmakes: I believe Morrish qualifies as a third party. Mancino: Well, though he's been doing work for the city. He has a vest interest. I don't know, I'd like to see somebody who does marketing. Farmakes: See I think it's kind of a volunteer thing. Mancino: Well they can pay for it. They have $5.2 million. Batzli: Let me ask the question. Can they transfer TIF money from one district to another? Aanenson: No. At least that's what I've been told. 8atzli: So, you know they have some money that they are going to do something with or they will lose it and it will be interesting to see what happens here because I think we can all agree that there needs to be money spent on this site, TIF money. But whether it is a gymnasium and a pool or buying down the land price so that something else goes in there, like we've done in other TIF areas, that's debateable. The thing that concerns me is more global here. I'm not going to talk about what I think here, for a minute. But from the Planning Commission viewpoint. The thing that I find distressing is in the local paper we're, we as the Planning Commission are being lambasted and we've had cartoons that we're in favor of this and we're part of the problem. We've had a columnist, Jan Dunlop basically spew all sorts of information that's completely inaccurate it appears, just by glancing over her column. And I think regardless of whether the HRA listens to us or not, or whether the City Council listens to us, we should do this. Okay. Because they can throw it away if they want, because we're a recommending body but we're also residents of Chanhassen, and if they don't want to listen to us, they don't have to. Scott: It also should be, I think it also should be submitted to the Villager for publication for commentary. Ledvina: That's fine. .. Planning Commission Meeting June 2, 1993 - Page 55 Scott: Yeah, because I was disturbed by being painted in a cartoon as being one in line where we have probably been the least consulted. And it's confusing but that's the, and that's not necessarily the'public view but people like sound bites and they like sight bites and you see a cartoon and it's all over. Batzli: What do you guys down at the end think about giving this to the Villager? Harberts: I would support it. And I'd like to submit some comments to Matt in terms of the letter because I think it should be pointed out. In terms of maybe what the role of the Planning Commission is and we're residents and just be real positive. Like I say, I like the letter but I think realistically here, the deal is something's going to be done there but I think it's good to go on record because what is our role in that we are residents. Scott: And focus in on too. Before any decisions are made, as it appears they have been about the content of this facility, that an objective third party needs to scientifically survey a statistically significant sample of residents to assure the objective requirements for the facility. And that has not been done. Batzli: Well, I have a problem with that just because we as a city have never done that before. We've gone out and spent a lot of money before for some of the parks and things that we've done and we've never had a scientific survey before. I understand that there has to be a need and the need should not be concocted by the people that are arguing for the need. Harberts: Especially when there's been two bond referendums and it's been voted down. Farmakes: Well we've actually spent the money, the last, I'm referring to the Park and Rec survey that was sent out regarding the community center and the trails issue. And then the one they had after that. Both of them were extremely poor. But they did not qualify them. They said that they were not scientific surveys. They Just said that these were questions, it's a questionnaire form we're sending out. So in fact, they followed it up with a phone call and asked me comments and have me make up my own questions and answers. So for statistically comparing these comments, I think their mail out was a very small percentage of Chanhassen. And wasn't targeted to age or income so. Harberts: Well and I think our discussion. Farmakes: I question that information. Harberts: In our discussion earlier, you know with regard to decisions we make today or for the future. We need some of that valid information. Conrad: But you know what we're missing is some, you know I'm not sure we're getting vision. You can ask people what do you think but there's another side. What's the vision for this community in 20 years and you really do make a decision. You've got a chance to make a decision now for Planning Commission Meeting June 2, 1993 - Page 56 something that can go together in 20 yeats and I doo't know that'residents can make that. $o I use research all the time but I always want to make sure it's used at the Tight time. $o right now I'm' not beating the drums for a community center but it is an opportunity that you wouldn't want to lose if we felt there was that need. $o what I see in Matt's memo is process. And I think that's valid but I think they will cast that, I think they will say well we're doing that. We're doing OUT research. $o I think it's got to be real cleat what we're asking for. And not a lot of words. It can be some Teal, we want this. We'd recommend this and I think that's important. The other thing that I wrote down, what is it that we believe. These are the, you're more involved, you 6 are more involved than 99~ of the people. More tha 99~ of the people in Chanhassen. What's your vision? Not whether you need a hockey rink or handball court but do you have a vision for a downtown resource that you want to start right now? What is it? That's an opportunity that you can have and that's the type of thing that I'd like to pass along to the City Council. Process is absolutely essential and it seems like it's real screwed up and they've wasted some money. At this point in time I think we should talk about the process. I'm a little bit worried about going out and asking residents, do you think we need trails. Do you think we need a hockey rink. Do you think we need a handball court. Boy I tell you, unless a focus group can do some probing that some of the quantitative stuff doesn't bring out. But' going back, my biggest concern is, what is our vision for this. Do we care about a hub. 3ce said, let's put it out there, which is kind of. Harberts: What kind of hub? Conrad: A hub for transit. Do we care about that? Harberts: Yes we do. Conrad: Do we care about a city that's not like a Bloomington. You know economically speaking it makes sense to put a recreation facility out by the new school but is that our vision of a community center? A place where a city of 10,000 gets together and does what they do or meets or whatever. Is it a recreation thing or do we have a vision for a downtown that's beyond just a main street? That's the only thing I'd challenge you all on. Is there something there? You can pick and choose. Well I want a daycare center or I want this but there's something to, let. me give you an example. What's the Edina City Center called? The green, the park. Aanenson: Edinborough. Conrad: Yeah. Do we have a vision like that? Does anybody care about something like that being in downtown Chanhassen and maybe, and that's Just an atrium type of thing but branching off from this can be private/public funded things. Is that something that we care about or is it not? Batzli: But see I have a tough time because, I mean I didn't read this until just now when you were talking but I bought into your vision that you expressed to the HRA, Council, whatever that joint session was a month ago or whenever. But I'd also, along with Tim Erhart and several other planning Commission people at that time, we expressed our vision back then. And our vision was that this was going to be not a recreation facility but Planning Commission Meeting 3une 2, 1993 - Page 57 a gathering place and a hub and open and we didn't want a maze of tunnels and things like that, that we're getting. And so we expressed our vision and it's been... Conrad: But see actually that's what I want Matt to write about, but I don't want to steer how other people want. I think there has to be the center for people. Winter time, summer, I don't care when it is. But then there are some things I don't want. I don't want, you know what I Saw was not very good. You can't get from this side to that side. You've got tunnels. You've got...it just was nothing, it wasa conglomeration of sort of a best effort to appease 22 names and none of them mesh together. And it's like I want to make a statement of what I don't want in town and if we can't do it, you know it gets back, if we can't do it right, let's not do it. Let's not waste somebody's money. Farmakes: I think it's maybe not a correct assumption to assume they have a definitive need of what will fill up that space. They fall back on work that was done on the convention center. Where they say they have, Hoffman has a stack this high of needs and it's, well if you get a vocal small group in to do up papers as to why you need indoor professional hockey facilities for the 300 kids that are going to play hockey, well you've got, there's a force there. If you've got the rest of the 7,000 people that don't say anything, you don't have a force, and I asked the Chairman of the HRa whether or not they had seen any credible statistical information of what they should put in there, along with the concepting that was done. And the answer was no. again, I go back to what you said is that we have a time line. We have a certain amount of funds that we can spend. We want to play some cards on the development of that area. and it really worries me that it's a grabbag of uses that will follow that. Whether or not in the long term, as you said, that they play out well. Batzli: Well, it will be interesting to see of course what happens in the long run. My vision for what it's worth is meeting rooms, for the identified needs that I'm convinced is actually there. Meeting rooms, open space, community gathering space, open, airy, no tunnels and if they have enough money, because I can't imagine that's going to cost $5.5 million, then buy the land and if you can identify a recreational need downtown, you can build it at a later date. Conrad: It seems so valid to subsidize development in the future but private development. We'll give you the land. Harberts: Isn't that the...of TIF. Isn't that really what the purpose of TIF is? Batzli: Oh yeah. Harberts: To create that tax base so it reduces basically property taxes for the residents. But TIF has also been used to provide enhanced community facilities. Farmakes: It allows you some control to what comes in. Harberts: Well, the carrot. Planning Commission Meeting 3une 2, 1993 - Page 58 Scott: The carrot and the club. We'll give you the money but you have to do this. Batzli: I mean why they can't go to the YMCA or somebody and give them the land and give them a million dollars for the building and have them build it, better than we could ever do it. Run it better and we have no responsibility for making or losing money is beyond me. Scott: There's one reason. Batzli: Well yeah, they lose control. Scott: Exactly and all that schedulable space and facilities falls out of the jurisdiction of the city. Batzli: But that's how it should be. And if there,s still a need once you bring in a YMCA or do something like that, well then turn to the school and build a gym or pool or whatever you've got to do. Scott: But if it were a good business decision, there'd be one there now. Farmakes: I'm waiting until we come out and we're going to build a covered baseball field. A dome. Harberts: It's coming. Farmakes: Yeah right, for our Little League. Mancino: I want to see a golf course in the middle of the city. 8atzli: A golf course? We had a golf course subcommittee going last year. Mancino: Whatever happened? Batzli: 3can gave it up. They couldn't convince the Mayor so we gave up on a golf course. Conrad moved, Scott seconded to adjourn the meeting. &ll voted in favor and the motion carried. The meeting ~as adjourned at 11:20 p.m. Submitted by Paul Krauss Planning Director Prepared by Nann Opheim