Loading...
PC 2001 05 15CHANHASSEN PLANNING COMMISSION REGULAR MEETING MAY 1S, 2001 Acting Chair Sidney called the Planning Commission meeting to order at 7:00 p.m. MEMBERS PRESENT: LuAnn Sidney, Rich Slagle, Uli Sacchet, and Craig Claybaugh MEMBERS ABSENT: Alison Blackowiak and Deb Kind STAFF PRESENT: Kate Aanenson, Community Development Director; Sharmin A1-Jaff, Senior Planner; and Lori Haak, Water Resources Coordinator Public Present for all items: Name Address Janet & Jerry Paulsen Debbie Lloyd 7305 Laredo Drive 7302 Laredo Drive CONSIDER AMENDMENT TO THE CITY CODE CHAPTER 20 REGARDING LAKESHORE PLACEMENT OF STRUCTURES. Lori Haak presented the staff report on this item. Sidney: Questions of Lori. Sacchet: Yeah, I do have some questions. But first of all I really want to commend you about the report that you did, the previous one. I really think you did a fantastic job in terms of identifying the problem. In terms of putting the intent and the goals in place and research and solutions. And I like your recommendation a lot at that time too. And I do understand to some extent why with the current report rewording to get rid of the thom rather than find a better solution. Now it's still, I mean my comments of the original discussion still apply in that sense. My question specifically to the current recommendation, current report is there are two questions. When you say it could be leading to a taking or a punitive thing, that's very legalistic terms. I figure I know where that comes from. If we use your alternate solution, that puts a little bit of frame around it. Wouldn't it be up to the way those roles are implemented and worded with that would determine whether we push them too far that it would become punitive, that it become a taking? Or if we do this, what do you call an adaptation of the Minnetrista standard, does that necessarily by the framework it defines lead to this negative outcomes unavoidably? Haak: The strict legal interpretation of anything of this nature, and I've talked with Roger about it a lot because after our last discussion I got the feeling that you understood what was going on and wanted to implement something inbetween. And in the course of my conversations with him it became very apparent that the only real way to completely eliminate the takings issue is to do what staff is recommending. Anything other than that, because basically from a legal standpoint you are entitled to a view or you are entitled only to your lot. And so if you start putting things more stringent than the DNR setbacks, you get into that muddy water right away. Planning Commission Meeting - May 15,2001 Sacchet: Yeah, but there are two aspects. One is the taking or the punitive element, I have a hard time accepting that that would come from the wording of trying to put more of a framework in place. I mean that must more come of the way we implement it. That's really my question. I mean if it becomes a punitive situation, a taking situation, then isn't that because we are implementing it in a very stringent way? It's not because we're trying to put a framework around it to have something to work with to balance it out. And then a second point I really think is very important. I think you made that very clear last time we had this discussion on this topic. We are not interested in the aspect of view protection. We are interested in the aspect of balancing the setbacks. I think you have to be very careful because the view thing is a bad news thing. Haak: But it may be that way, but that is the origin of the ordinance that exists. I wasn't on staff when that happened but Kate has informed me and other members have shared with me that that was part of the concern, and one of the main concerns if I'm not mistaken, with that original ordinance. So while it is maybe not what this planning commission, and maybe even this council is concerned with, it's definitely part of the picture. Sacchet: Of the original picture? Haak: Right. And I don't necessarily think they're inextricable. I think that they're hand in hand, even if they're not arm in arm. I think they're somewhat related so. Sacchet: How about, I saw you kind of jumping there Kate. Aanenson: Well I agree with Lori. I think that the two are woven together. As far as a view protection, you could require someone to maintain a certain setback but the neighboring property, if they wanted to put a boathouse or something down there, still has that right so the two, it becomes onerous to say you have to setback but now I can go back and do something else to my property. Because the goal is to meet the minimum and work with the person to say, you know this is the neighborhood standard but 75 foot is the minimum. Sacchet: How about where the wording per se would lead to the punitive taking type of situations or versus the implementation of it and maybe you would have that discretion. Aanenson: ... we're not considering here is you have to look at each lot and topography's also going to drive a lot of these too. Whether the type of house they want. Some of the lakeshore setbacks. There's different factors that go into consideration so what we're looking at is a perfectly flat lot with a common lakeshore, you know. The nuances come in when you've got topography and undulating lakeshore. Then it becomes very complex and it can be very punitive and that's the problem with the way it's written now. It doesn't take those into consideration. Sacchet: I have one more question if I may Madam Chair. One of the reasoning is that having some restriction or some sort of standard creates more work for everybody. Aanenson: I wouldn't say it creates more work. It causes ambiguity in the interpretation. That's not the problem. We want to be clear that we're interpreting the same way and treating people the same. It's not a work issue. It's just to be clear that everyone's being treated the same. Planning Commission Meeting - May 15,2001 Sacchet: Now the reason in the summary, it's difficult to administer. It may infringe on property owners, but the third point I have a question about usually there's cooperation and people cooperate and work together which is certainly the best situation. And so in that case you don't need anything. I totally agree but what do we do if they don't cooperate? Isn't that when we need a rule? I mean shouldn't we have a rule for when people don't cooperate? Isn't that part of our responsibility? Haak: Well that gets into basically what your decision is as a planning commission. Do you think you need a rule for the, you know however many percent who will not cooperate. Do we need to legislate for that or do we need to make an ordinance for that? And that's something that from a staff perspective we'd like to be able to work that out between the property owners. Like I said in the report, there's a lot of times where simple orientation may be making the building face a different direction. Putting some additional screening, something like that is going to solve some of those problems. Maybe talking about, a little bit more about maybe home design or something like that. And that won't necessarily fix every case but I believe it will fix the lion share. Sacchet: Well that answers my questions, thank you. Sidney: Other questions of staff? Slagle: Yes Madam Chair. IfI can ask Lori, when you refer to maybe positioning a house one way or screening as another option between homeowners or property owners, if the homeowner that perhaps is inflicting the potential pain on the one who's requesting screening or what not, if they say no. They say hey, I bought this property. I'm within the DNR setbacks. You know I mean, do we legally have the right to refuse their request to build a house there? I mean it sounds like a simple question but. Aanenson: No, if they meet the setbacks. Slagle: Exactly. So if this, if the suggestion to eliminate are more stringent, whatever the regulations and we revert back to the DNR, then as much as we might try to resolve it, they do have the right to say no. You know I'm building my house. Haak: Bottom line. Slagle: And I should just throw out that I support that. That approach. Claybaugh: I have a few questions. One is just to touch on what Uli had stated. I do believe that people coming in to the city need a starting point, both for the marketing and the feasibility to determine whether that lot is going to work for a particular buyer. They need someplace to start so I think it's important that something's in place in it basically defines what's going to work for the city. I agree with, I think that the DNR restrictions should be stringent enough. I don't know if there's something that, I understand the blending issue but I think that it just ends up being a very slippery slope. Sidney: I'd like to open this up to a public hearing. We're not obligated to do so but if anyone would like to address the commission, please come forward and state your name and address. Jerry Paulsen: Jerry Paulsen, 7305 Laredo Drive. I guess the question you had raised and I'm not sure what the answer is. If this originated from the DNR recommended code, then it would be justified I think to leave it in. And we're not sure, we sent for a copy of the. Planning Commission Meeting - May 15,2001 Aanenson: I'd be happy to answer that question because I wrote that amendment. It was specific to one subdivision on Lake Minnewashta. How the ordinance got in place. That's currently in place. Slagle: Say that again. Aanenson: The code amendment, the amendment that we're using right now for lakeshore setback, that you have to average, was written for a specific subdivision that came in on Lake Minnewashta. Was that your question? Sacchet: If I may clarify. I think we have a slight misunderstanding. What Mr. Paulsen is asking, whether this restriction of the blending element actually came from the DNR or not. I believe from the staff report I understand it does not. It was an addition on top of the DNR framework. Aanenson: Correct. And that was a city initiated ordinance, right. Jerry Paulsen: Most of these shoreland codes were modeled after the DNR language anyway, but this is not you're saying? Aanenson: Right. Haak: The shoreland ordinance was approved by the DNR and it does meet it's standards but it's also more stringent than the DNR standards and this particular, like Kate was saying, this particular portion of it is nothing that the DNR has. Aanenson: It was amended after the shoreland regs were adopted. Jerry Paulsen: So there is a precedent set that there is code that's more stringent than DNR guidelines. Eden Prairie has higher setbacks. Higher or wider, width lot requirements so this would be falling in that category I guess. Which is past mustard before but this is whether we want to change it I guess. Sidney: Other comments from anyone? If not I'll close the public hearing. So we have time now for a few more comments from commissioners. Anybody? I guess we made comments already. Sacchet: I can make more. Sidney: Okay. Sacchet: I personally feel that it's good to go beyond just the DNR minimum restrictions. We do that in a fair amount of other things in the city. It's commonly done and I think from an environmental viewpoint that's a supportable situation. I personally feel pretty strongly that I would like to adopt the alternative language that you're proposing rather than just make it a free for all. I feel that it is our responsibility as a city to put these protective elements in place for the case when people don't cooperate. And I do also believe that when it becomes a negative thing, if punitive or taking issue as it's called by the legal framework, then it would be a flaw in our implementation of it and not a flaw in having some regulation in place. I would consider it a flat not having some regulation in place, but I would want to make it very clear in how I'd like to pass this on as a recommendation to the council that this is in view of a setback regulation and not in view of a view protection framework. That's my position on this. Planning Commission Meeting - May 15,2001 Claybaugh: I guess I have a question then. If it isn't a view issue, what is the driving factor then? With respect to the setback. As long as you met the environmental requirements of the 75 or 150 foot setback, and view is not the primary consideration, then what is the mechanism that's driving it? Sacchet: Are you asking me? Claybaugh: To exceed the DNR standards. What is the mechanism that, what is the driving force behind it if you're not citing the view as the primary element? Sacchet: The view is one of the elements but it's not the driving element. The way I see it, it's the driving element is to have the neighborhood in a harmonious, homogenous build and not having it very staggered. As far as where that is reasonable, and I think one of the problems why we had this come in front of us is the cases where you have them very far set apart, it's not reasonable to try to line them up. I mean if one is 1,000 feet and the other one is 100 feet, it doesn't make sense to line them up. But if you have two that are 150 feet, and there comes another one and wants to go 75 feet, I think it would make sense to ask that to be a little further setback. Not primarily because the view of the neighbors, but of the appearance of the whole neighborhood. Claybaugh: I have another question for staff. On all these properties that have gone in in the past before some of these were implemented, what was the most stringent setback? Was it 150 feet for unsewered properties? Haak: It was, for unsewered, yes. It was 150. Claybaugh: For how far back does that go? As far as you can remember. Haak: Yeah. Claybaugh: Okay. I would be willing to support that up to the 150 feet. If someone consciously chose to move their property back more than 150 feet, then they made that decision at that time. I don't think other people should be penalized for blending above and beyond that 150 foot. Haak: Okay. Sidney: I'd like to make a few comments. I agree with staff's recommendation. Since I've been on the Planning Commission we've seen a few of these applications come before us and each is such a unique situation. It's almost like dealing with a variance and I think it's really difficult in this case. I appreciate Commissioner Sacchet's idea that we should have a little bit more framework but it's very difficult in all these unique situations with an undulating shoreline and who knows what houses in different orientations. If we're starting off with a subdivision and we could plan everything out, it would be fine but shoreline is a unique situation. And I agree with the idea that it really should be a staff and applicant and neighbor kind of discussion that you work for the best solution and that way. And I think it would be very difficult to come up with another setback or similar verbiage to what we have here that we're considering eliminating. So I do support the elimination of that part of the ordinance. It's just too hard to interpret. Really too hard in my view. So any other comments? Okay. Could I have a motion please? Sacchet: You don't want my motion. My motion's not going to carry. Planning Commission Meeting - May 15,2001 Claybaugh: Well I can support number 2. Put a maximum of 150 feet. I think when people make the decision to go beyond that. Sacchet: Okay, let's try that. Slagle: Craig, where are you seeing number 2? Claybaugh: Option number 2, adopt the standards based on Minnetrista. Slagle: Okay. Sacchet: There are two options. Claybaugh: It gives them a little greater latitude. My concern is that it, like I said, if you get people that are out building back 200-250 feet, and then people that have the option under the DNR standards to go to 75 feet are, have to blend with that 250 feet, I think the maximum should be what they were originally held to at 150 feet. At that point that's where the blending ends. Slagle: Let me ask staff if I may Madam Chair, is that going to be easy to administer? Aanenson: Herein lies the problem because the problem is, isn't always internal into a subdivision. It's when you have a new subdivision next to an old subdivision. That's what precipitated this ordinance. Everybody in the neighborhood adjacent was following the 150-200 plus. Now a piece of property building next to it, so there they are setting a new neighborhood standard, as LuAnn was saying. Now it's consistent with that neighborhood but where the two converge is where the rub came about. And that's what precipitated this discussion. So it isn't always that there's a standard set within that neighborhood, because you might have a new neighborhood setting a standard. Or someone adding on later and so there's all kinds of nuances. Claybaugh: You're talking about a couple different things though. Are we focusing on a transition area where a specific rub is or are we looking at the global perspective. Aanenson: This is applied carte blanche is that's what we're trying to say and it's not a perfect world. You've got peninsula's. You've got all, and this applies universal application and that's the problem with it. Claybaugh: How do you see Option 2? Aanenson: We said the 75 feet because if we could put in, if your old neighborhood abutting a new, you know there's just too many variables to put in there. Sacchet: Madam Chair, I'd like to follow-up on your idea a little bit Craig. Right now we're saying with this alternate wording basically that there would be an averaging of the next, of the first out point structure. So like a line between the structures. Or the average. Can you explain a little bit what that actually means, an alternate language? Planning Commission Meeting - May 15,2001 Haak: Sure. For Option 2, the first standard that you would apply would be to draw a line, like we have in the past, between the rear most points of the existing structures and that the center proposed structure would have to meet that setback. That line. The lesser of either that line or the mathematical average so if you get 2 structures that are again 100 and 200 feet apart, then you would add those together. Divide it by 2 and get 150. In most cases just so the Planning Commission is aware, those end up being really close to each other in most cases. The thing that I worked with Roger a lot on would be eliminating any structures that are outside of about 200 feet from the proposed structure because that's where we get into the cases like we had in Minnewashta Landings where you've got one that's setback over 1,000 feet and one that's maybe at 150. And so when we start eliminating those, it brings it closer to the kind of, I'll call it continuity, even though I've been bugged for doing it, that I think the Planning Commission is looking for. Sacchet: So to use Craig's idea, if we would only want to apply that if the structures are not further away than 150 feet, that's what we're saying. Claybaugh: If I understood you correctly, at any point in the past if someone came in and wanted to put up a property on lakeshore property that was unsewered and come within 150 feet, they had that option. Should they choose to go back further than 250 feet, I think the one constant in this entire discussion is 150 feet and the 75 feet period. The rest of it is you know, that's your moving target so I think if people make a conscious decision to go outside of that framework, then the blending issue I think they've kind of forfeited part of that. If somebody decides to build back 300 feet and have a big front yard out to the lakeshore, that's the benefit to it. Sacchet: So if I may add to that, to like your point Kate if we have two developments bordering at each other, and let's say one has 150 and the other one has the 75, that would mean that the house bordering has to be at 110 or whatever. Would that be a workable solution? Because I think we have a very good point here. Claybaugh: I'm interested in the same question. That's what I'm asking. You're a whole lot closer to make it working in my mind if they're limited to 75 and you're limited... Aanenson: Unfortunately we don't have all the examples of the problems with this ordinance in front of you but there's instances where you're forcing someone to go back further than 75-80 feet. Now they need a variance because they can't push it back further because they've got a wetland behind them or whatever SO. Claybaugh: Well 80/20. We're not going to cover everything. Aanenson: Right, exactly. Claybaugh: Where do we fall with the 80%? I mean what is the best solution that falls? We know we're not going to cover everything. That's a given. Haak: The question that I might raise, and I thought about this a little bit because actually Commissioner Kind came up with a similar solution. And I'll give her credit where credit is due because I've thought about this because of her prodding, but the question in my mind then becomes do you use the 100. Okay, you have Lot A that's set back 75 feet. The house is set back 75 feet. You have Lot C that is 500 feet. And it falls within all the requirements of what we're proposing as far as Minnewashta. Or Minnetrista goes. My question to you is, do you use the 150 feet as part of the average? So would you add 150 plus Planning Commission Meeting - May 15,2001 the 75 and then average that? Would you draw a line from the 150 to the 75? Or would you just make the setback? There was one other scenario. I just see a couple different. Claybaugh: Well they had 3 different form criteria and you'd exercise all 3 and take, as I understood, the most stringent of the 3. But I think when you get outside that 150 foot setback then that's where your multiples get... Haak: Actually this, the proposed would be the lesser of, it would have to at minimum meet the DNR requirements and then it would be the lesser of either the line or the average. Sorry. Just to clarify. Sacchet: Now what we are trying to propose, and I think if I understand you correctly and I like that idea is that we would not count something that's further back than 150. Haak: You wouldn't count it at all. Sacchet: The maximum is 150. Claybaugh: Exercise the blending rule beyond 150 feet. Haak: So you would just match the setback of structure A then? Claybaugh: If somebody's back further than 150 feet, it's be default. It's 150 feet. Aanenson: I would say that's, the ones that are beyond 150 are going to be a small percentage. Very small percentage. Sacchet: They're the parts that made the problems though. Aanenson: No. We've got lots that again, when you do the averaging, because of the lakeshore setback, the way the roads are placed, right. So by taking the 150, yes. You've eliminated some of the problems but probably... Claybaugh: Well that's what you'd... I mean we wouldn't want to create more problems but anytime you start getting out of reasonable boundaries, and like you said, if somebody had the opportunity to build within 150 feet and they made a conscience decision to build outside of that, that's the decision that they made. I don't think that the person coming in after the fact to build the property. Aanenson: Right but that's not the majority of the problems. Right. Claybaugh: Okay. Could you identify the primary problem that we're after then? Aanenson: There's undulating lakeshore. Claybaugh: Okay. Is that the 80% or the 20%? Aanenson: 80%. 80%. The lake is all, you know you've got different setback. Carver Beach, completely different setbacks. Minnewashta, the old neighborhoods. Setback 150 plus. And then the newer Planning Commission Meeting - May 15,2001 developments all meet the 75. Lake Riley, cabins. A lot of the older cabins significantly under 75 feet predominantly. Claybaugh: Okay, so if we were to focus in on the 80%, one of the criteria we're saying is that it's undulating shoreline. Okay. Aanenson: I would say that's the major reason, right. Claybaugh: So to get to the heart of the matter, like you said, if we can't address all 100%, tell us what direction we're supposed to be going here. Aanenson: I think by using the 75 you're getting to the, that was what we'd say would be the, gets us there. Claybaugh: ... anything more restrictive. Aanenson: Correct. Slagle: Including the blending? Aanenson: Correct. Claybaugh: That was the concern that I understood down here that if we did that and someone came in then we'd have no leverage at that point. They can come in, plop in a house at 75 feet and then it's said and done. Aanenson: Right, that's the down side of it. Claybaugh: As long as they can meet the hard cover requirements and the rest of it. Aanenson: That's correct, that's the down side. Claybaugh: So then you don't have any leverage in order to blend that with the neighbor or to have that, if somebody doesn't want to cooperate, like Uli said, you sit down at the table and they say if we're within our rights to build at 75 feet, you can't address the neighbors concerns. Is that correct? I mean at that point if you adopt solely the DNR standards, that's my concern. I mean I believe that there's a certain degree of need to be able to sit down with the neighbors and say okay, well you've been here. These are kind of the circumstances. To me it's logical to sit down with somebody can say well, you know at the time this house was built it could have been built at 150 feet so we can't give you credit because you went beyond that. Aanenson: I would say most people that come in today build to the minimum, or pretty close to the minimum. They may give themselves room for a deck or something but most people, even on a wetland setback, people are pretty close to the minimum. Claybaugh: So as I understand it, and I might just have the whole wrong view on it. On one hand we're trying to put something out there that's a little more predictable. Little less brain damage. Is that? Planning Commission Meeting - May 15,2001 Haak: I think more fair. Aanenson: More fair. It's punitive for people that come in. It's very punitive. Can't interpret it. We've had to issue a lot of variances so we're trying to make, level the playing field. Claybaugh: Well I guess I agree with Uli then that this is, the ordinance as it sits right now as I read it is, provides a lot of latitude for the city. I mean that provides a lot of latitude. So I don't know how it can become punitive without the city having a hand in that. Is that an accurate statement or am I? Aanenson: Are you talking about the language when a structure exists on either side? Claybaugh: Well the current ordinance as you said is, it's lengthy and it provides a lot of different scenarios. Aanenson: Well the only thing we'd be taking out would be the one sentence that we're considering striking out and that's the interpretation question. The city attorney said that's a little bit ambiguous and that's what, the part that's struck out that says when a structure exists on either side, the setback of a proposed structure shall be greater of the distance. That's on page 5. That's the ambiguity that we're trying to clarify. So if you want to put some other language in there. Haak: And that's what the Minnetrista would be in addition to what exists under the table there on page 5. Claybaugh: So I better understand, somebody drafted Option number 2. What were you thinking when you drafted it? What were you trying to accomplish? What were you throwing at us? Haak: Basically taking from what I gleaned at the last Planning Commission, I understood that the Planning Commission was still interested in some sort of a blending. What I was trying to do was basically put a framework around it. Try to make something that staff could work with. Sacchet: Did you get legal feedback for that? Haak: Yes. On the Minnetrista ordinance, the variation. Sacchet: The new version, yes. Haak: He and I worked very closely on that. It actually went back and forth as far as words were concerned, back word smithing so, if the Planning Commission does adopt something, that's why I provided it because that's the direct you were going at the last meeting. And I knew that my recommendation wasn't very popular and I wanted to make sure that I provided you with something so we weren't starting from ground zero because we had had some, I've worked on this a lot and wanted to present something that was an option. Slagle: Madam Chair, I have a question for staff. And I think maybe Lori you addressed it but just want to be clear. Has the city attorney conveyed to you or to Kate or staff that the blending ordinance is legally, I mean can we legally succeed. Claybaugh: To legally enforce that. 10 Planning Commission Meeting - May 15,2001 Slagle: Yes, because if the answer is no then I think we're spinning our wheels and the answer is the DNR setbacks period. Claybaugh: Right, I agree with that. Slagle: So I mean I don't want to be voting for Option 2 if the first time it comes up someone hires an attorney and they come in and say you know what, this isn't. Haak: I, and Roger and I have had that discussion and it goes back to the first conversation that we had about when we were talking about view protection more. I hate to bring it up because Uli's giving me the look. Slagle: And I understand from an environmental concern the desire for that. Haak: Certainly. Slagle: But I've got to tell you, ifI don't see something from the attorney saying that this is indeed enforceable, then I don't want to vote on anything. Claybaugh: Well I'll back up, I'll go one further. I would expect that it wouldn't be put in from of us as an option if it wasn't enforceable. Okay, so let's deal with that one first. Haak: My question to Roger was, and I asked him point blank. I said can we have something on the books, are people entitled to more than, and again we were talking about view so are people entitled to more view than what is in front of their lot. His answer was no. But people regulate things like this all the time. So it's not that well, legally it wouldn't stand I don't, I believe without being an attorney myself, from the perspective I got from him. Claybaugh: Well that's why we have a city attorney, and we're asking what the city attorney, his opinion is on that. Or her opinion is I don't know. Haak: My understanding is that we can try to do what we want, but whether or not it ends up in court is a different story. Claybaugh: Well getting back to the question of fairness then, I mean I just brought up that it was more predictable and the rest and your response was that something more fair. So what you're telling me is that we're bringing something up that, it doesn't sound terribly fair if it's not enforceable under the law. Haak: Well when we were talking about fairness we were talking about the 75 foot, the DNR requirements. So that is, I mean it's across the board. Claybaugh: So we're going outside legal boundaries to be fair? Aanenson: I would prefer we frame this discussion area. Our recommendation is what the city attorney says is people are allowed the 75 feet. You've asked for some other options. You can recommend whatever you choose to the city council. We've given you some other options. If you feel strongly that way and you want to recommend something to city council, I'm confident the city council on the advice of the city attorney will make a good recommendation. If that makes sense. 11 Planning Commission Meeting - May 15,2001 Sacchet: Madam Chair, if I may jump into this. Actually the aspect that the blending ordinance, as a blending ordinance would not be enforceable legally is one thing that Commissioner Kind and I brought back from our government training pointing out that a blending ordinance, and then we get to this later tonight. And like it is in the other agenda item, would be most likely contrary to the uniformity law. Would probably not stand up in court. Because it's not treating everybody the same. Now I'm not lawyer but using my common sense I would take the position that what we're, if we adopt this language, we are not violating the uniformity law in the sense that we're not treating everybody the same way. We're trying to bring it between how people have been treated in one point and how they're treated now with the setback situation, with the sewer situation. Because in the past people were treated that they had to be back the 150 feet and now the minimum setback from the DNR that we have as an ordinance in the city is 75 feet. So I've been saying is that when two areas like that come together, that we're trying to have a little bit of a mitigation because we could say we're not treating the ones that were there before the same as we're treating the new ones. So I really personally don't see a conflict of the uniformity aspect. I think we're trying to put something in place that depending how it's implemented by the city, we would have a little bit of a handle if somebody is not cooperating, which is very minimal. I mean if we say we only apply this in a setback with a maximum that can be counted into this calculation is 150 feet, then we can very well justify where 150 feet comes from, we're not trying to treat people differently. We're trying to find a balance between the different treatments and different points of time. Aanenson: I just want to clarify one thing. The DNR standards didn't change. The city, whether you had sewer or not sewer is what changed so it wasn't the ordinance. That ordinance. It was the fact whether or not you had a septic system or you had a sewer system. Sacchet: The framework. Aanenson: Right, so and the time period. Sacchet: Couldn't we then say that we're punitive to the people that build without sewer? Because all of a sudden they have somebody have... Slagle: Well I wouldn't say we. Sacchet: No but the city, the framework, right. I mean it could really go both ways. I don't want to argue that point too much but I still feel that we should give this a shot. With the addition that the maximum countable would be 150. I think that to me puts it into the balanced framework. Slagle: If it would help the group in it's thinking currently, I would not be in favor of any blending at this point. Listening to what I have heard regarding staff and issues and unique issues and, I mean it just seems even with 150 you're going to have people applying for "hardship" and pros and cons and so I just want you to know that right now I'm personally not in favor of any blending. Sidney: I guess I'd kind of like to bring this to some motion here because it sounds like we're more in an open discussion mode right now. So I guess I'm wondering about how we might proceed, a question for you Kate. Claybaugh: I'm sorry, go ahead and finish your question. I have a question when you're done. 12 Planning Commission Meeting - May 15,2001 Sidney: I guess my thought is, what's before us is that you're uncomfortable and we don't feel comfortable with this current language. Aanenson: Correct. Sidney: And my feeling is that we could act on this and eliminate that. Aanenson: Correct. And so we've given you some options and whatever options you feel strongly about with an intent, we'll pass those on to the City Council. Sidney: Yeah. And I guess the question is if we should look at your recommendation to, and then do we need to substitute language right now? Aanenson: Sure. You can amend any of these in any way you see fit. That's fine. Sidney: At this point or some other point? Aanenson: Sure. No, right now. I mean if you wanted to make a motion and send it up, sure. Any one of these you want to modify, that's fine and then make that, whoever makes the motion, sure. Sidney: Well, I'm wondering if we're moving toward tabling this for. Claybaugh: No...I'm still, there's got to be a piece that I'm missing here. With the DNR standards, if we eliminate the current standards then we just adopt the DNR standards, is that accurate? Aanenson: Correct. Haak: We have, except we have those standards in place now so it's basically just eliminated in this one sentence. Claybaugh: Okay. And the origin for that one sentence was for a specific subdivision? Aanenson: Correct. Claybaugh: Okay. And you were trying to accomplish exactly what at that time? Aanenson: The circumstance would give us a significant setback in the unsewered area adjacent to a subdivision that was sewered. Different standards in place and the intent was to. Claybaugh: So if that comes along in the future and we did both to just eliminate the current standards and adopt the DNR, how are you going to address that situation in the future is my question. That's the one piece that I'm missing. Aanenson: Right, and we've said that before. That's the down side, that's correct. Slagle: It'd be at 75 feet? Aanenson: Right. 13 Planning Commission Meeting - May t 5,200 t Claybaugh: And at that point you don't have any latitude to sit down with the perspective buyer and the existing homeowner and say can you do this, this and this and attempt some of those minor blending things. That's my only concern is that there's nothing in place then, not that you're trying to put too much in place. What are your concerns about that? I'm gathering from your recommendation that's the lesser of the evils. Aanenson: Right, because every one of these now we sit down with. Every one of them. It is very difficult to interpret and it's, people have to get surveys. It's onerous. There is a down side in some, it's going to, but that goes back to what are you entitled to and that's the discussion so. Slagle: And then ifI can Madam Chair. My concern is that you sit down and even if you passed Option 2, we still don't know officially if it's legally enforceable and I think that's just a waste of your time and the applicant's time if it isn't or is, I'd rather just leave it at the DNR and everybody knows what it is and unfortunately for those, and believe me with sympathy, that have lots that are from the 150 feet. Claybaugh: How long ago did we go beyond the DNR standards? When was that done? Haak: I believe that was done in '95 or 6, yeah. Claybaugh: Okay. Beyond the situation that we identified, how prevalent is it where you've had to go through this exercise with. Aanenson: Every lakeshore lot we spend time on those, yeah. Finding out the adjoining properties. It's a requirement. You have to survey the adjoining property. See where they're setting back. If they don't have a file, a survey lot. Some of the other areas don't have a lot survey. Let me go back to what LuAnn was saying. Whatever you want to recommend forward to the city council, that's your discretion. If you feel comfortable doing that. Sidney: If we want to do what's recommended, that's. Sacchet: May I make a motion? Sidney: Yes please. Sacchet: I like to make the motion that we adopt Option 2 with a new version of the third paragraph. I'd like to replace the third paragraph that should read something to the effect, the maximum setback used for calculating subsections (a) and (b) shall be 150 feet. Haak: Okay, so just to clarify your intent. It would be, if you have one structure that's set back tOO feet on one side. On the opposite side you have one that's set 300 feet back. You would draw the line or do the average between the 150 and the tOO. Sacchet: Correct. Haak: Or do the mathematical average so you'd end up with 125, whichever is less onerous at that point. Sacchet: Exactly. Now the one thing I'm not sure is whether we want to say one more thing about undulating shoreline because that seems to be the stumbling block. 14 Planning Commission Meeting - May 15,2001 Haak: I actually think that drawing a line does a real good job in those instances. Sacchet: It works pretty well for that? Haak: I think that if we. Sacchet: Looking at the examples, I really only saw one case where that undulating thing could get into problem which is on the first example where you have that thing, that protrusion out into the lake. Aanenson: Yes, like a peninsula. Sacchet: Yeah, if you have like a peninsula that holds like one house or so, then you run into problems. That's one in all these examples. Haak: And to be quite honest, that's one they needed a variance anyway I believe so you still will see variances with something like this. I'm sure you'd still see it with 75 feet because that same example, most of those houses are set at 65 feet, or 60 feet, so if they even come in again, you're going to be looking at those anyway. Claybaugh: Can I ask a question? Does that help you at all? Haak: It certainly, coming from the perspective of the existing ordinance, we don't have a framework. We don't have a defined method for calculating the average setback. The two that I've provided you with are the ones that staff has traditionally used but they really hold no specific standing because it's not described in the ordinance so certainly this gives us more structure as far as that's concerned. Sidney: I'd like to request that you state where you found in the report and the page. Sacchet: Alright, let me be very specific. In the current report from May 7th, on page 4 there is an alternate language proposed to replace the language that we want to strike out of the ordinance, which is the element that's more restrictive to the DNR. And it reads no structure shall be located closer to the ordinary high water mark than the setback in the above table, which is the DNR. Additionally, any structure, unless otherwise permitted by this article, shall exceed the lesser of the following two setbacks: (a) A line which is drawn between principle structures on the riparian lots on either side of the proposed structure at the forward most protrusion towards the water, or (b) The average setback of the principal structures from the ordinary high water mark on the lots on either side of the proposed structure. For purposes of calculating the average, begin measuring at the forward most protrusion towards the water. It's my understanding that basically documents what staff has done without it being in an ordinance. Then the proposed language goes on defining what a protrusion is. Protrusion shall include any part of the principal structure such as decks, part of the dwelling unit, porches, etc. Protrusion shall not include slabs, detached buildings, detached garages, etc. I understand that's all being worked with the lawyer. Now the third part here that defines when subsections (a) and (b) shall not apply, I'm replacing with the wording, the maximum setback used for calculating subsections (a) and (b) shall be 150 feet. With the intent that that was the setback that was originally in place and I think that would solve certainly the problems that were mentioned that I'm aware of that this ran in in the past. That's what I'm making a motion for. Sidney: Okay, is there a second? 15 Planning Commission Meeting - May 15,2001 Claybaugh: I'll second the motion. Sidney: Okay it's been moved and seconded. Sacchet moved, Claybaugh seconded that the Planning Commission recommends approval of amending Section 20-481. Placement, design, and height of structure to include the following language: No structure shall be located closer to the ordinary high water mark than the setback in the above table, which is the DNR. Additionally, any structure, unless otherwise permitted by this article, shall exceed the lesser of the following two setbacks: (a) A line which is drawn between principle structures on the riparian lots on either side of the proposed structure at the forward most protrusion towards the water, or (b) The average setback of the principal structures from the ordinary high water mark on the lots on either side of the proposed structure. For purposes of calculating the average, begin measuring at the forward most protrusion towards the water. Protrusion shall include any part of the principal structure such as decks, part of the dwelling unit, porches, etc. Protrusion shall not include slabs, detached buildings, detached garages, etc. The maximum setback used for calculating subsections (a) and (b) shall be 150 feet. All voted in favor, except Slagle who opposed, and the motion carried with a vote of 3 to 1. Sidney: Okay, the motion does carry and will go onto city council, and what date would that be? Aanenson: June 114. Sidney: Okay. And nay because? I guess we traditionally had commissioners explain. Slagle: Well I think the nay is just because I think the blending issue is difficult, although I think intended well. Well intended but I think it's difficult to uphold and I just don't think I want to be encourage those kind of gray areas if you will. That's about it. Sidney: Thank you. CONSIDER AMENDMENT TO THE CITY CODE CHAPTERS 18 AND 20~ REGARDING THE USE OF PRIVATE DRIVES AND FLAG LOTS. Sharmin AI-Jaff presented the staff report on this item. Sidney: Okay, so no motion is required. Aanenson: No, we are meeting with the city attorney. Sharmin has spent hours on this. It's a huge undertaking. Because it's not only these two sections of the code, it also, if it's in the nuisance ordinance, what's the definition of street there whatever we do here so it is a huge undertaking and we don't want to cause more ambiguity so we're taking our time and making sure that we're proceeding in the right direction with the advice of the city attorney. 16 Planning Commission Meeting - May 15,2001 Sidney: Questions of staff. Sacchet: Yeah Madam Chair. I basically have two questions. First of all I think you're doing a fantastic job. My two questions, one question. We started this, I mean this is 1, 2, 3, 4, the fifth or sixth report that's coming our way for this. And last time we looked at your proposed ordinance amendment and then we found two things. We found we wanted to say something in the intent type thing, and there is a place in the ordinance. 18-75, number 6 where you put that in. Also that would be specific building orientation increased setbacks could be requested in that framework. My first question, which is the smaller one is, is that just relating to the private street or also the flag lot or is the flag lot automatically have the private street? A1-Jaff: Both. Sacchet: It does relate to both? Because my interest is more the flag lot at this point than private street. Aanenson: The problem is they are so woven together, we can't separate the two. That's been the problem with this. So we need to get the clarity on the street. Actually we're calling it now right-of-way as a definition and get that clarified first so you can see clearly the flag lot issue. Sacchet: Okay. That leads to my second question which is a little bigger. I don't mean to get impatient with this but I liked ordinance recommendation that was coming in last time, and the only thing that I was missing was that little addition in setting the framework of what could be required in the context of the flag lot. Now, and I brought up that question last time and I still feel the same way. Why do we have to have the term definition linked in with this ordinance? Why can't we put this flag lot ordinance in place and as flag lots come up, we have the framework to deal with it. We can tell them it needs a little bit of variance framework and then a separate effort, we work with the term thing which is a very big one. Can we separate those two out? Move forward with the ordinance amendment and then work out the terminology? Do you see a reason why we shouldn't do that? Separate those two. Aanenson: Well staff doesn't have a problem with that but. Sacchet: Staff has no, okay. That answers that. Aanenson: But we have been challenged on that. That very issue. Sacchet: I know. Aanenson: And we want to make sure that it's clear because we will be challenged on it. Sacchet: Okay, you answered my question, thank you. Aanenson: Yep, and so we have to clarify that. Sidney: Other questions? Claybaugh: No. That answered my questions. 17 Planning Commission Meeting - May 15,2001 Sidney: I would like to open this up to a public hearing for comment. Anyone wishing to address the commission, please come forward and state your name and address. Jerry Paulsen: Jerry Paulsen, 7305 Laredo Drive. I'd like to give you a handout here, and I apologize for not getting it to you sooner but you could consider... What it does is supplement the search for the terms that are under discussion here. Private drive, the private street, the right-of-way and easement and so forth. To help you narrow it down a little bit. Generally speaking there are at least 3 instances of private driveways still remaining in the code, which I think were intended to be stripped and changed from the code to modify those terms to private street in the past. And they were not done that way and that's what I think led to an ambiguity in the Igel issue that, that was part of the issue in interpreting the code. Those three instances are in 18-57 and then 20-615 if you want to look at those. Generally speaking, from the standpoint of a citizen, I guess private streets I think should be avoided if you can. Especially in an RSF district. They're probably just fine in PUD where you need narrower streets, perhaps in less area devoted to a street. But in an RSF it kind of, there's certainly an advantage to the developer who comes in. He can make, more use and end up with more property considering the less restrictions put on him because of the private street issue. The little research that we've done shows that a lot of the surrounding cities, either don't allow private streets or else try to discourage them. And that includes Eden Prairie and Chaska. Or Eden Prairie, Shakopee, and.., better if you don't have a loose restrictions. If you loosen up the restriction on private streets it's going to lead to more problems I think, especially in residential areas. Thank you. Sidney: Thank you. Do you have a copy for staff as well? Jerry Paulsen: Yes. Sidney: Thank you. Anyone else wishing to address the commission? Please come forward and state your name and address. Janet Paulsen: My name's Janet Paulsen. I live at 7305 Laredo Drive. I think as I stated before private streets are my nemesis. So what's the deal? Is it a private street or private drive? You're talking about private streets in the report and then in options 1, 2 and 3 they're talking about private driveways. No wonder the citizens are confused. I think the planning department is confused. These terms private street, private driveway are not defined in code, only appear in Chapter 16 and Chapter 20 and staff makes use of them. These two terms are actually remnants of the original private driveway ordinance of 1990. It was changed to private street in 1994. And we've documented this by searching the private drive files and the glitch ordinance file. You have another problem with 18-60 which says all lots shall abut for their full required minimum frontage on a publicly dedicated street as required by the zoning ordinance or on a private street or a flag lot. It doesn't say anything about a private driveway abutting, so what are you going to do with that? That was the issue that caused us such trouble in the Igel development. Chaska and Eden Prairie and Shakopee do not permit private streets, nor does Minnetonka. Minnetonka has a private driveway ordinance connected with their flag lot ordinance. That's all I have to say. Sidney: Thank you. Anyone else? Please come forward, state your name and address. Debbie Lloyd: Hi. My name is Debbie Lloyd and I live at 7302 Laredo Drive. And I apologize that I'm not very well prepared tonight. I had to go through my old paperwork quickly because I've been traveling for over a week, so bear with me okay. I have a memo. I don't have a copy of it but I can get it to you, from a former city councilman. His name was Bill Boyt, and Bill was on the council and he had been on 18 Planning Commission Meeting - May 15,2001 the planning commission before he served on the council when in 1990 the private street issue was adopted. And what I'd like to read to you is his fax to me, because I think it drives at the intent of the ordinance. Slagle: If I can ask, the letter was from him to you regarding questions that you had or? Debbie Lloyd: Right. Slagle: I'm just trying to get the context. Debbie Lloyd: Because when we were looking into this, trying to understand the code relative to this Igel subdivision, Jan, Jerry and I researched. Spent many hours. Staff can attest to this I think, asking for files. Reading back history. Council minutes, Planning Commission minutes and the research led us to the State of Minnesota led us to former council members and we produced a lot of documentation relative to it that I think is really valuable information if you want to know what the intent was. How it's developed over time, etc. Slagle: Okay, but ifI can be sure. His letter or memo to you was that an official position of the city or his own personal views? Debbie Lloyd: If you allow me to read it you'll see that he. Slagle: I just want to make sure I understand. Debbie Lloyd: He clarifies it in his letter. Slagle: Okay, fair enough. Debbie Lloyd: I've been asked to provide some background on the thinking involved in the 1990 revision and development of the city's ordinance on private streets. A review of the minutes would show that I felt strongly about this issue. Although I may have been leading the charge, I think I can speak for the consensus thinking of the council as the ordinance was adopted. We were trying to balance the long term interest of the city with the reasonable desire of property owners to develop the economic value of their property. I believe the council was concerned about protecting the city's ability to support future development by providing space or a transition from private streets to public streets providing room for related utilities, and protecting the lot size and characteristics of future development within the city. Related to these goals, the frontage requirements were intended to provide both reasonable access and to avoid undersized or unusually shaped lot design. We recognize that individual property owners did not always approach the development of their land with the long term interest of the city or their immediate neighbors in mind. While the ordinance was intended to help people develop their property it was also intended to create a consistent standard that would serve to protect the interest of both the city, those living in the area of the development and future owners of the property. It has always been my belief that granting a variance essentially amends the ordinance. So that's just some basic stuff. Okay, I'm getting nervous, and I shouldn't be. I've been up here so many times. Sacchet: You're doing fine. Debbie Lloyd: I think it's the fatigue. Okay. So in 1990 this private street ordinance was adopted. In 1995 a revision was made to the reading of the ordinance. Actually I'm sorry, Section 18-60 Lots read, 19 Planning Commission Meeting - May 15,2001 prior to June of 1995 it read, all lots shall abut their full required minimum frontage on a publicly dedicated street as required by the zoning ordinance, or on a private drive. But then the code was changed because private drive was not construed to be public. So the changes made to the ordinance 18-60, if you look in your books, it will now read a lot shall abut for their full required minimum frontage on a publicly dedicated street as required by the zoning ordinance, or on a private street or a flag lot which will have a minimum of 30 feet of frontage. So there's 3 options when you subdivide. So if you have a piece of land and you want to subdivide it you have to have the full requirement on a street, the full minimum 90 feet, or it can be a flag lot where this lot would have let's 90 feet. This lot needs 30 feet, so this is the flag. Or if you have an upper and lower lot, by code one of the lots would have to have, it could be a flag I guess, but let's say another lot had 90 feet. In order to get down here you'd have to have a private street. That private street you have in the code is called a private street easement. It's 30 feet wide. For safety reasons there must be a mm around and all that. Not just the common portion of another drive, but because of the language it must abut, the private street must abut the other parcel. That's how the code reads. I don't know if I have explained it thoroughly enough but, what you can get into, I mean you're chopping up parcels. Delivering many of these packets over the past year to various council members, Mark Senn for example has a private drive into his property. He has signage that says private drive. It's a nice access to one home. It's kind of a horseshoe shaped deal. It has, it's width is probably is probably self governed as a driveway. Nancy Mancino had, our former mayor, had what was approved as a driveway prior to, which is not what is in code now. Her property is in back of another parcel and they have a very thin, like 10 foot entry through the neighbor's piece. Now their land happens to have no trees or anything, like in the way for emergency vehicles, but you know again the intent was to provide safe in and out to whatever parcel is adjacent to it. The whole reason for a private street was to get access to some of these parcels maybe that were large. My concern is partly based on the shoreline regulation, most of these parcels are around our shoreland and I think it's important that we recognize that if we allow this to occur, we should be abiding by the setback ordinance of structures on the lake. And that's a real simplistic kind of summary of things, but I think there was an intent. I don't think the intent's been followed. I don't think the intent's been challenged before. I don't know that anyone's really looked at code and realized there's no such thing as a private drive and that's why we're so careful about terminology. Please when you review this make sure that there's consistency in this. Because again the intent was changed and it was changed at the suggestion of Roger Knutson that private drive be changed to be private street because street is construed to be public. Thanks. Sacchet: Debbie, if I may ask you a question. Debbie Lloyd: Sure. Sacchet: ... wanted to ask you the same question but with you it applies even more. The concerns you're bringing up in this context, they're related primarily, and that applies to you too. Really primarily relate to the terminology to definition and how it's been interpreted from there primarily. Is that one of the key elements? Basically what I'm trying to get at is the ordinance... Debbie Lloyd: I think the ordinance. Sacchet: ...that was brought to us last time at last meeting suggesting we put a variance procedure in place is really a separate issue. It's actually an element to discourage or have more of a control over what happens with these type of situations. While then the issues that I hear you bringing up, and I really appreciate all the tremendous amount of effort, all three of you have put into this. I think you bring out very valid points. I do believe that those will be addressed certainly much more with this terminology work 20 Planning Commission Meeting - May 15,2001 that Sharmin, that staff started doing. I don't necessarily see that, actually it seems like the ordinance that was brought before us last time would actually be a step in the right direction to put more of a framework around it and then with research and terminology, that these things would then be addressed further. Is that a correct interpretation in terms of what you found with your research and the concerns that you are raising here? Debbie Lloyd: You know I don't know if using a variance procedure for private streets is the way to go. I don't think that our variance tests are properly applied. I mean it seems like it's sometimes the variance is granted on a whim and then for others it seems very strictly applied. There's just so much involved here and a lot, it is all interrelated. I wish I could say these are two separate issues. I just can't. They are all interwoven. When we go to other cities too to seek what they do, I have concerns. I know we've talked about Shorewood. I'm in a ladies investment club. I went to a friend of mine's home I had never been to before in Shorewood and I was just shocked. I mean the standards there are, the old standards. You know they tear down and they build up very close to the lake. The garages are in back of a little drive. Now yeah, that's the way that area developed but I don't like the idea of going to those types of communities to develop land that we have not yet, like let's say destroyed in a sense because I mean some of these old neighborhoods, and I guess we have them in Chanhassen. They have their own character and that's fine but I think we have to look to improved standards when we're trying to develop the land the first time around, and I think we have to look into what neighborhoods are like. The character of neighborhoods. I mean, but nothing is separate and I think these are all, at least in my opinion, really related to one another. And I know it would be nice to maybe have that variance deal in place so at least it gives you a mechanism while you're trying to iron out all the rest of this stuff. Sacchet: Thanks Debbie. Appreciate it. Debbie Lloyd: Thank you. Sidney: Thank you. Anyone else wishing to, yes indeed. Address the commission. Jerry Paulsen: Jerry Paulsen once more. One more comment about private streets in general. And I think I heard it from Teresa, the City Engineer. When the homeowner's obligated to maintain these streets because they're private streets, the city relinquishes the maintenance to them, snowplowing, etc. At some point in the future those streets may become degraded and the homeowners are going to say we don't want to maintain these anymore. You can have it back city and the city starts from scratch in essence and instead of maintaining a road continuously, they'll end up with a surface that they'll have to repave from scratch. Sidney: Thank you. Anyone else wishing to address the commission? If not, I'll close the public hearing and I guess at this point any other comments. This will appear before the Planning Commission again. Aanenson: Yes. Sacchet: Well a question though Madam Mayor. Sidney: Chair. Sacchet: Madam Chair. Thanks for pointing that out. Eventually I'll catch on. You know personally after all this discussion and hearing the input, I do believe I'd like to separate the terminology from the 21 Planning Commission Meeting - May 15,2001 variance amendment that was brought in front of us last time. I think I would be perfectly happy to adopt the recommendation that was brought to us with that additional rewording that specifies that within this framework, with the variance framework, we may, the city may request a specific building orientation and increased setbacks. And I really think it will be good to pass that onto council to put that variance procedure in place. I think it would be in the interest of the city and of the interest of everybody. I do believe that the concerns that were brought up last time, and they were more in detail brought up to us, are really more a terminology thing and I do think that by putting this variance procedure in place, we would actually accommodate some of the concerns that were brought in front of us in that we have, we discourage private streets. Right now it's there. If we have a variance procedure in place, it would at least be a step towards having more control over it and as such discourage it a little bit. Be able to put at least some conditions on it with the flag lot situation that we have better protection of the neighborhoods, of the city and as such I would see that as an improvement of the standards. And obviously we all know that we have a lot of work to do in terms of getting the standards, terminology ironed out. It is this element of private street, private driveway, private drive, all these things. It's very intertwined I admit and putting a variance procedure in place with having that little bit convoluted background is not ideal, but I think it's a step in the right direction and I would, my question is, why couldn't we make a motion to adapt this variance procedure with this additional wording and ask staff. Sidney: Tonight. Sacchet: Tonight. Do that tonight. Pass this tonight so the council can look at it and then staff can keep pursuing what they called a very large task with lining up all this terminology, and we would not wait. Putting at least some tools in place to be able to deal with these flag lots, private drive or street or whatever we call it issues in a better way. So on that basis I would like to make a motion. Sidney: How does staff feel about that? Aanenson: We're meeting with the city attorney on Thursday. Again, there's definitions in both of those and I think we need to be using the same terminology. Sacchet: Because where you're saying private driveway in that proposed language, you're saying that we need to clear this up first? Aanenson: We made an interpretation on, the city attorney did, on the application that brought this into question. And I think that we need to have clear understanding that we're all talking the same language and I think by not doing that we're going to have to go back and maybe readjust it so I think it's premature. Sacchet: So the proposed ordinance that was brought to us last time was not reviewed by the city attorney first? Aanenson: We were giving you options. We could support that but I think to really do justice it would be best that we had the same understanding of the terms that we're using. Sidney: And do we have any applications pending or anything in the near future that if we do not act? Aanenson: We've been talking to people about that, right. We don't have any pending applications. 22 Planning Commission Meeting - May 15,2001 Sidney: So it's not going to impact anything in the foreseeable future so that waiting may not be a problem? Aanenson: Oh, well there's one that's outstanding which we've apprised you before that we approved with common drive. Right, and that was given, may come back. That was approved with a subdivision a year or two ago. Sacchet: But I'd like a little clearer answer still when you brought us the report last time, which was dated March 28th, yOU had, you gave us four options and you made the recommendation for one of those options. And the option you recommended, was that reviewed with the city attorney or not? Aanenson: He looks at the reports, yes. It was also his recommendation that we look at the definitions. Sacchet: He was recommending we look at the definitions? Aanenson: Yes. Sacchet: Okay, well then I rest my case then. Sidney: Meaning? Sacchet: Meaning, I mean if the city attorney recommends we need to straighten out the terms, we can't really pass it at this point even though it would have been nice to. Aanenson: We wouldn't have even put it on tonight but we wanted to show you where we were. Give you a chance to give us some more direction as we're heading down that path and trying to keep you up to speed. Otherwise we wouldn't have even put it on because it became a much bigger issue than trying to. Sacchet: So I guess there's just one question left. Did you get what you looked for? Slagle: Probably more. Aanenson: Yes. Yes. Sidney: Okay. Any other comments at this point? Okay, we'll see this again I'm sure. And let's move on quickly. CONSIDER AMENDMENT TO THE CITY CODE CHAPTERS 18 AND 20 REGARDING SUBDIVISION AND STANDARDS IN EXISTING NEIGHBORHOODS. Kate Aanenson presented the staff report on this issue. Sidney: Okay, any questions of staff? Aanenson: We don't regulate colors of houses in the city. There's a lot of things we don't regulate. Sacchet: In the report you're pointing out that the character of the neighborhood is a neighborhood thing. Not so much a city thing and you say that would be best regulated through PUD or restrictive covenants. 23 Planning Commission Meeting - May 15,2001 Aanenson: Correct. Sacchet: Now the PUD would be, really that's only something that would be in place from the very start. So are covenants for that matter. They're usually there from the beginning. Aanenson: You could still put one together if you wanted to create the homeowners association. Sacchet: Covenants could be added on later on. Aanenson: Sure. Sacchet: And need to be maintained, as we know. Aanenson: Right. Right. Sacchet: Because after 30 years they go away otherwise. So I can see how the neighborhood covenant fits in there. The PUD would only be specific to areas that are developed as a PUD. Aanenson: Correct. Sacchet: Okay. Okay. Aanenson: What the PUD does do too is it would regulate again further subdividing without going through the rezoning because you're adding additional lots. And that also, both of those would restrict, could restrict color, materials, accessory structures, those sort of things. Sacchet: So in terms of lot size, which is the concern that we got into this with, really from our end we're saying that the options we have is the PUD or possibly changing the required lot size overall. Okay, that answers my question. Aanenson: Yeah, because even within the PUD the single family application you can go as small as 11, as long as they're averaging, so even within those PUD's there's a big, and that's kind of the character of that neighborhood. Not ever lot is a cookie cutter and that's kind of added to the ambience of you know you fit what meets, what you can afford or what your tastes are and people reflect that and what they do to their home. If they want to add on or move somewhere else, and we want to leave some of that flexibility in place. And so people like the more restrictive, more controlled neighborhoods, and that's a choice too. Sidney: Other questions of staff? Aanenson: So what we're looking for I guess is, do you want us to investigate? Where do you want us to go with this? Because we think it doesn't make a lot of sense to continue down the path we're going. If you want us to go look at it, compare what the minimum lot size and all the areas without. Sidney: Are you looking for a motion or just direction? Aanenson: Direction. 24 Planning Commission Meeting - May 15,2001 Sidney: Okay. Aanenson: You could give us a motion as a direction too, that's fine. Sidney: We can try that too. I'd like to open this up to a public hearing. Anyone wishing to address the commission, please come forward and state their name and address. Any takers? Okay, I'll close the public hearing. Any questions? Sacchet: ... because I was really pushing for doing something in this context in the past, and then we found out at this government training session that Commissioner Kind and I went to, that this is only one place in Edina is such an ordinance and it was pointed out in that training by the lawyer that was doing part of the training, that we asked him specifically that this type of thing would not hold up in court most likely. That it's somewhat conflicting with uniformity law, treating everybody the same way. So in view of that it's a little bit disappointing because I really would have liked to put something in place to better deal with this type of thing when it comes up to us. But from the legal viewpoint, it's not prudent. And I can accept the notion that neighborhood character is a neighborhood responsibility. That if a neighborhood is defined as a PUD to start with, then these type of things are put in place and they don't need to be abided by if there are restrictive covenants to a neighborhood. If the neighborhood wants to maintain those, they can be maintained in the long term. So really it's not a city issue and I would be comfortable to whether it's a recommendation or make even a motion that we do nothing at this point because it doesn't seem like we have a legal foundation to do anything. So do we want to make that a motion or just a comment? Aanenson: That'd be fine if you want to make it a motion. Sidney: Right, and I guess. Sacchet: But we can take more comments. Sidney: Yes more comments. I guess I'd have one comment. I think the first sentence in the staff memo here is really good and we're really talking about aesthetics and not zoning so I think not doing anything is appropriate response. That's my comment. Slagle: I would say I just don't know if we need an ordinance. I mean I would just, or an amendment to our motion to do nothing. Claybaugh: Sorry, no comment. Sacchet: To make a motion to do nothing is kind of a funny thing. I mean it's nothing. Claybaugh: I can see it showing up in the paper so... Aanenson: Well I guess I would just forward this onto city council that you had considered it and that you're not going to proceed with it. Just so, that you're going to drop it. Sidney; Okay. So do you want to make a statement to that effect? Sacchet: Well I don't think we want a motion to do nothing. That's kind of contradictory but our recommendation is not to pursue this further. 25 Planning Commission Meeting - May 15,2001 Claybaugh: Yeah, who needs Dave Letterman huh. Sidney: Thank you. Okay. So that concludes the old business. Is there any new business on the horizon? Aanenson: I'll just cover my items under ongoing. APPROVAL OF MINUTES: Uli Sacchet noted the minutes of the Planning Commission meeting dated May 1,2001 as presented. ONGOING ITEMS. Aanenson: The City Council meeting last night, there was only 3 council people so the code amendments that you had recently recommended for approval had to be withheld. You do need 4 votes for that. They did approve the first phase of Puke which includes 200 homes. It would be the easterly side so they should begin MnDot with the road restrictions off, start working out there, and Puke will also.., can start grading. The council did also approve with that the project, Bluff Creek which we call definitively BC-7 and 8 which is those two segments which would carry the sewer from Galpin all the way over to Westwood Church. And there is a hearing coming forward on the Dogwood, another segment with a possible subdivision at the end of Dogwood. For your edification for the meeting on June 5th, we have 3 items on. Subdivision on Lotus Lake and two site plan reviews for industrial buildings. And one last item. We do have a new planning commissioner that was appointed last night by the City Council and that's, if I pronounce his name right, Brian Feik. Slagle: Brian or Bruce? Aanenson: Excuse me, Bruce. Thank you. Sidney: And then you also have the. Aanenson: Ongoing items, sure. Just kind of let you know where some of the things are. For example Westwood Church. We asked them to do a traffic study. What the implications would be just coming off of Dogwood with all that traffic and whether or not we need West 78th. At what point so they will be doing a traffic study and kind of pushing their time frame back so they will more than likely be in probably July. Some of the other ones. Presbyterian Homes still in the works. We put spring. Obviously it will probably be summer on that. Lori is working on the fertilizer ordinance. The city council did direct her to do a no wake ordinance so she's been taking a lot of high water calls on that. So that's kind of re-prioritized some of her work load. The design standards, we're still plugging away on. We saw all those slides...that ordinance out. And I'll update your attendance sheet too accordingly. Sidney: Okay. Aanenson: Just to let you, Jay did get reappointed back so he's back on the Park and Rec. Sidney: And I'm wondering, is there a commission who had attended the city council? Aanenson: I believe Alison and Deb were there. 26 Planning Commission Meeting - May 15,2001 Sidney: So we won't have any report tonight on that. Any open discussion items? Sacchet: Yes Madam Chair. I've got a real brief open discussion item. I went to the next training of the government training series called Beyond the Basics. And I just thought I'd point out some of the highlights of that one for everybody's benefit. It was interesting, actually when they started they gave historic framework where ordinances and planning commission and all that sort of stuff came into place, and really what originated zoning was the Bubonic Plague. The rats that started the first zoning in the Middle Ages because if the houses were next to each other back to back and no yard at all, just streets, apparently that was very conducive to the rats. I didn't know that. And then the first step in, it was in England to require backyards so that the houses had to have some natural space inbetween them. The second step of zoning was in the industrial revolution with the smokestacks and all that. So the residential areas wouldn't be where the air is all polluted. And then the third step that was mentioned was in the U.S. Constitution, and it was an interesting context. It was kind of new to me is that the element that many of the founding fathers have wrote the constitution were significant landowners. So besides liberty and all the wonderful things we know so well that speaks important in the Constitution, equally very important, maybe not equally but certainly also very important was property. Was ownership and so that was another very important step how zoning was anchored in legally and how the aspect of due process was put in place. The aspect of due process was elaborated to have two major aspect. One is the procedural aspect, like having hearings and listening to people and getting all the input. And then the other aspect is the substance. The content element of due process. That it has to be fair and it has to be reasonable. Aanenson: Lakeshore setbacks. Existing neighborhoods. Sacchet: Then it was very much emphasized that all actions must be related to public health, safety and welfare. That's really what should be the main driving element in this. That it's for the common good and that it needs a balance between the common good and the individual rights because on the common good side you have the police power of the state. On the individual rights, obviously very much founded in constitution too so we have to balance those two things. And that these have to be stayed focused on the reasons. That there be reasons for everything. Interesting also was that public opposition is not a reason to do something with the land use. There has to be a reason, I mean just opposition is not a reason. Technical points, if somebody make technical points of any sorts, and we don't agree with it, we have to say that because otherwise it's kind of implied that we do. So that's kind of a tricky one. That's some of the highlights that came out of that one. Just thought I'll give a little summary. It was very good. I appreciate having to be able to go to this Kate. Aanenson: Good. Sidney: Thank you. Anything else? If not, meeting is adjourned. Acting Chair Sidney adjourned the meeting at 8:50 p.m. Submitted by Kate Aanenson Community Development Director Prepared by Nann Opheim 27