PC Minutes 8-5-08Planning Commission Meeting - August 5, 2008
Keefe moved, Thomas seconded that the Planning Commission recommend approval of the
attached Registered Land Survey referred to as RLS 123. All voted in favor and the
motion carried unanimously with a vote of 7 to 0.
PUBLIC HEARING:
SCHNEIDER DOCK: REQUEST FOR A VARIANCE AND A WETLAND
ALTERATION PERMIT TO INSTALL A DOCK ON PROPERTY LOCATED AT 640
PLEASANT VIEW ROAD (OUTLOT A, REICHERT’S ADDITION). APPLICANT:
GARY & CYNTHIA SCHNEIDER, PLANNING CASE 08-15.
Public Present:
Name Address
Gary & Cynthia Schneider 640 Pleasant View Road
Dave & Valerie Rossbach 670 Pleasant View Road
Jeffery: Chair Papke, members of the commission, thanks. I am before you tonight with a
request for a dock variance from the 10 foot setback requirement from the lot line, as well as a
wetland alteration permit in this case issuing a decision of what is called no net loss of wetland
function and value. The property is located at 640 Pleasant View Road. It is shown in the red
and orange crosshatch before you. Mr. Schneider is the property owner. He and his wife are
present tonight should you have any questions for them. The lot was created with the Reichert’s
Addition which was subdivided, the subdivision went through in 1978. At this time the
development contract had created, or the subdivision rather had created 4 outlots. Outlot A was
intended to be used, which is the triangular piece. Outlot A was part of 640 Pleasant View Road
and was intended or was given rights for one dock with two slips to be put in there. Subsequent
to that city ordinance 37 was passed which created conditions for dock placement. That a dock
be no more than 8 feet wide. That it be no, that it can be 100 feet long or to that point at which
the lake is 4 feet in depth and that it be setback from the lot lines as they are extended into the
water 10 feet, and that is the variance request that is before you tonight. Chapter 6, Article II
which is on page 3 of the staff report, talks about those governances of dock placement. How it
could be. And it further goes on to state the council may grant a variance from the dock
requirements from this Article if it is shown that by reason of topography or other physical
characteristics of the lakeshore site, strict compliance with the dock requirements would cause an
exceptional or undue hardship to the enjoyment of the use of the lakeshore. Also Chapter 20,
Articles IV, VI and XII apply to this, or being CUP for the wetland alteration permit. VI being
wetland itself. Where installation of a dock or a boardwalk is required to get a wetland alteration
permit and that this is zoned single family residential. One dock is permitted as an accessory
structure. Yeah actually, before you right here, this is a picture taken by Mr. Schneider last
winter. So this is in the same location that it is. What’s interesting about this, if you look at
where the dock is terminated in this picture, that’s approximately what a conforming dock would
look like on this site. That would be within the setbacks. Clearly it would not get you out to the
point where you can navigate into the open water. This is a picture of the site today. The dock is
extended through to the end of the cattails. Clearly to maintain operation through there, you
need to cut the cattails. We’ll come to this in a little bit but the plants themselves are clearly not
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Planning Commission Meeting - August 5, 2008
going to be impeded and that’s where we get into our no net loss. You can cut them. If you
were to remove the dock in the future, those plants would come back, especially with the other
requirements for dock placement that we have before us. As I stated, this lot was, or this
subdivision was created. 73 went into effect. City Ordinance 73 which set the 10 foot setbacks.
Outlot A was platted such that it had the convergent side lot lines which is a unique characteristic
that would not allow the conforming dock to be placed. That would actually provide access to
that of the water. Were the dock to be placed within that conforming area, two things would
happen. One, the actual operation of the outboard motor, it’s less than 2 feet in depth there so
the actual operation of the outboard motor would, if not cut ruts in the bottom in the lake, disturb
the substrate suspending sediment and therefore actually creating a water quality issue and the
navigation of the boat in and out would probably result in more damage to the wetland than
would simply extending the dock to the end of that wetland. Mr. Schneider, who is here, has
worked with his neighbor to the north. Can we go back to the power point, or to the. Actually I
guess it would be the neighbor to the west. Mr. Thielen who has a dock on the site as well. Mr.
Thielen has emailed me that he is in agreement with the placement as is. In fact he helped Mr.
Schneider choose this placement and it still allows access to and from his dock without any
impediment. He did send me an email which is included in your packet under discovery items.
Outlot B which is that large piece where the hand is right now, is Near Mountain Lake
Association and they have, with the same subdivision, were granted rights for one dock with 4
slips. 3 slips. Excuse me. That, within that same document a dock in the northern portion of
that lot is a prohibited use, so the current dock placement is at least 430 feet just by scaling off of
the aerial photography and the GIS from the current dock placement. So again Mr. Schneider’s
dock placement would not impede with Outlot B with the Near Mountain Lake Association.
Outlot C and D are similar situations to Mr. Schneider’s where one dock is allowed for a private
residence. The alteration permit itself, the wetland alteration. Under 8420 of Minnesota Rules, a
wetland impact is clearly defined as wetland fill or excavation or removal of all the vegetation
that would result in loss in quality or quantity of wetland habitat or biological diversity.
Placement of the dock does not preclude this and does not require placement of fill nor does it
require excavation within the wetland. The vegetation that is present today or would be present
without the dock there will still be present if the dock is placed. The placement of the posts
themselves do count as wetland fill. If you think of a 3 inch post though, you’re talking one-
tenth a square foot per post. Under the new rules which were adopted last June, within a
shoreland, a wetland that is within a shoreland setback, which this is, is allowed to have up to 20
square feet of diminimus impact. Diminimus just meaning that it does not need to be mitigated
for after the fact. So unless he is going to put in 201 posts, it’s pretty clear that we will be under
the diminimus impact for this site. In closing, I have spoke with Carver County Soil and Water
Conservation District. As long as there is no excavation or fill placement…they have no issues.
Riley-Purgatory-Bluff Creek has remanded all of their permitting authority back to the cities
st
within their jurisdiction as of January 1 of this year. Staff is recommending the Planning
Commission adopt the motion as shown on page 7, and extending onto page 8 with the
conditions that are shown on page 8. Is there any questions that you have at this time? Mr.
Schneider is here also if you have any questions for him.
Papke: Kathleen, start with you.
Thomas: No, I don’t think I have any questions right at this very second yet.
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Planning Commission Meeting - August 5, 2008
Laufenburger: None.
Dillon: So when the diagrams that we’ve been given, it shows the location of the existing dock
you know. Do you have one that’s penciled in that shows where the proposed one’s going to go?
Jeffery: The proposed dock will be, I’m sorry Chairman Papke, Commissioner Dillon. The
proposed dock will be in the same alignment of the existing dock because he’s already worked
that out with Mr. Schneider and, however I am recommending that the dock be shorten by 13
feet, which would always leave a 20 foot clear zone, 20 foot navigable area between the two
docks at it’s closest point. So it would remain the same length. On page 2 of the planning
packet, it doesn’t show up well but you can see where I’ve made a couple of marks on the dock
that is located to the right or easterly on the plan. Where the dock would be shorten too so, the
number you can’t read on the right is 13 and the number between the docks is 20. My apologies
for that.
Dillon: That’s the only question I have.
Larson: I was just curious, looking at the picture that’s on page 6. It kind of appears that the
property next door comes over, or it comes very close to the property line of this property. Are
they in compliance or is there any issue with that? I mean obviously since they are in agreement,
I guess they don’t have an issue but I was just curious.
Jeffery: Chairman Papke, Commissioner Larson. It is a non-conforming use. It’s a legally non-
conforming use though it has been in place since before the ordinance went into effect, therefore
it would remain. So if you were to take it and remove it for a year, then you would have to place
it in a conforming matter on this site. I believe Mr. Schneider’s actually had discussions with
them, because one of the things we’re allowed to do is within the setback zone, if two adjoining
properties wish to share a dock and have two slips off it, then you can be in the setback zone for
that. He did approach the neighbor and he was not receptive to that.
Larson: That’s all I have.
Keefe: Yeah, I don’t remember what, I think it was Outlot B which was in here before, is that
correct? And we were trying to determine, I mean B serves what? Lots 6, 7, 8. 6, 7 and 8 or is
it?
Jeffery: I will actually defer that question to Mr. Schneider but yes, it is intended for anybody
within the Reichert’s Division to be a part of it.
Keefe: But this is, 5 is not part of that? Doesn’t have access to B. They just have access to A,
right? They’re not part of the association or they are a part of the association?
Jeffery: They are a part of the association but they do not have dock rights.
Keefe: But they also have dock rights on the outlot?
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Planning Commission Meeting - August 5, 2008
Audience: No….to the dock.
Jeffery: They could, yeah. Chairman Papke, Commissioner Keefe, they could go onto the dock
but they have no dockage rights. They could not put in.
Keefe: Okay, no overnight boating.
Jeffery: Correct.
Keefe: Okay. So as I recall we got into the discussion of well, so each 6, 7 and 8 then is allowed
one equivalent of one boat overnight at a dock that’s on the south end of Outlot B, is that
correct?
Jeffery: There are 3 slips. Correct.
Keefe: Okay. So in this case we would be approving that A would get an overnight privileges,
but they get privileges for 2 docks. Or 2 boats, correct?
Jeffery: Actually we’re only recommending privileges for 1. Under the original subdivision
they were allowed 2 dockage rights but.
Keefe: So is it in the, you know, yeah. Not everything has to be fair and equal but you know it
seems like it was platted out in such a way that you know people would be able to have a boat
out there and these people apparently have been restricted from having a boat. Do we run the
risk of the residents that are associated with Outlot B coming back and saying well wait a
minute. Now that you’ve done that, we should have our own dock out there. Has there been
anything along those lines?
Jeffery: Chairman Papke, Commissioner Keefe. I think there’s always that risk. I mean it’s
human nature to look at what somebody else gets and say well I want some of that as well.
However I think it is fairly clear that it was intended under the subdivision for there to be a dock
dedicated to this lot, so I do not think it’s taking away a right from Outlot B and giving
something to the Schneiders that isn’t rightfully theirs. Alright let me, and then it does look like
the dock goes, this dock actually goes over Outlot B, does it not?
Jeffery: That is correct. It extends 52 feet onto Outlot B. Shorten that by 10 feet so, or 60 feet
rather so it’d be 50 feet extended over the property line.
Keefe: And that requires, is that part of the variance then?
Jeffery: Yes. Yes. Yeah, and.
Keefe: Does it require consent from the homeowners associated with Outlot B?
Jeffery: I will defer that question. Bob, if you would.
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Planning Commission Meeting - August 5, 2008
Generous: Chairman, Commissioner. It does not because it is the riparian portion of the
property. It’s an extended lot line. It’s not an actual.
Keefe: So where it goes over the lot it’s actually over the water.
Generous: Right. It’s on public land.
Keefe: Alright. That’s the only questions for now.
Papke: Kind of following on Dan’s lines of questions here. Is there any precedent? You know
whenever we look at granting variances we’re always concerned about setting precedence, and
my memory is a little hazy but I remember seeing diagrams like this before so has the Planning
Commission and the City Council ever granted similar variances to this one before or is this a
first time?
Jeffery: Chairman Papke, I can only speak to the time that I have been here, and I have never
brought a variance forward like this. However, prior to my being here I know Lori has handled a
number of dock variances. As to whether or not they were granted, I cannot speak to that.
Generous: If I may Chairman, this is a unique circumstance. This was a lot that was created to
permit this property to extend a dock out.
Papke: Right.
Generous: It doesn’t infringe on anyone else’s right and enjoyment to use the lake. The other
comment, there was one on the north end of Lotus Lake. It was, the only way they could do it
was to extend the dock so that either one or the other of the neighbors wouldn’t lose any dock
rights. And then we have you know for wetland alteration permits, we’ve permitted that because
we have a lot of shallow lakes.
Papke: Right. Right. Just one last question. You’re proposing to shorten the dock. Is the
applicant willing to do that? Are there any issues there or?
Jeffery: Chair Papke. The applicant has been very amenable to whatever suggestion staff or…
council has had to make.
Papke: Okay. That said, if the applicant would like to start off at the podium. State your name
and address for the record and maybe color in some of the lines for us.
Gary Schneider: Thanks. I’m Gary Schneider and my wife, Cindy Schneider and I own the
property at 640 Pleasant View Road which includes the Outlot A in question. You know in view
of the positive recommendation by the commission, you know my comments are going to be
brief and really only to I think address, flush out, clarify some of the questions that have been
here. This, Cindy and I lived in the original Reichert house, and at some point in the past the
Reichert’s owned 8 or more lots along the lakefront, and there was a document created
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approximately 30 years ago to create this Outlot B and this homeowners association. And I can’t
speak for the Reichert’s but I think the intent was let’s solidify the sale of these lots and try to
create a little sense of community here. So the city granted 3 overnight spaces on that
community dock. Cindy and I are members of that association. We have dock rights in the
sense of day docking or whatever there but we have no overnight dock rights. And those 3
overnight spots went to the homes that are, what do I call that?
Generous: Northeast.
Gary Schneider: Northeast of me. So for some reason this Outlot A was drawn in a kind of odd
shape if you will. The neighbor to the west, Pete Thielen has a non-conforming dock that is
grandfathered in and I’ve spoken to Pete several times in the last 2 years about would he be
willing to flip the L, just the L on the end of the dock, which he’s not willing to do. At the same
time I became aware, I’m just being very candid with you. At the same time I became aware of
his intent to sell his property at some point in the future, which it is now for sale, and for a
variety of reasons Cindy and I just never pursued putting a dock out there because of other
priorities, expenses, etc. So this Outlot A was written in this city planning, association document
as having 1 dock. Overnight space with 2 boats. So then when I began to work with Terry and
the Planning Commission. Basically his attitude was, you need to research it and you need to see
what’s fair to everybody. So I think what we’ve come up with is a way that we can have 1
overnight docking space. Not 2. We’ll have a somewhat shorter dock but we understand we can
trim some vegetation only as needed. Pete Thielen seems to be okay with the situation. He in
fact helped me, I placed the dock candidly not to get away with anything but because then we
would have a physical representation of what we were agreeing to. The dock’s been out for over
2 years. It’s never been used. Other than for just placement idea with Pete and the did give his
okay to where it’s at. My motivation for asking him to flip his L was hoping that there would be
no encroachment at all, you know on Outlot B, which is the association land, even though we’re
all the way to the one end. I think other than that, that’s it in a nutshell. If there’s further
questions or something I should elaborate on.
Thomas: No. I’m okay.
Laufenburger: None.
Keefe: How do you have a 1 boat dock? You know, I’m thinking of the configuration of the
other association. I mean they may be just limited just sort of the physical size of it and then it
can only accommodate 3, maybe 4 if they come out during the day but in the case here I mean
how do you, you know and maybe that goes to the city as well. How do you enforce that?
Gary Schneider: Well I think in my mind, I have not placed a boat out there yet. I mean the
dock simply has not been used and it’s overgrown, as Terry has showed you the current photo.
One boat, meaning you know a small fishing boat or something. With some you know modest
trimming, I think one boat could be you know perpendicular to the end of the dock or parallel to
one side as far out as possible. Right now there’s about, I think I’m correct, there’s about 12 to
14 feet between the outer edge of my dock and the corner of Pete Thielen’s L you know, and this
is one of the rationales Terry has for me bringing my dock back a little bit I think. Not only to
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not restrict Pete in any way. Well I’m not but you know, give any appearance of that. But also
have room for the boat. Yeah.
Papke: Okay. Thank you very much.
Gary Schneider: Thank you.
Papke: Alright, at this time if there’s anyone from the audience that would like to voice their
opinion on this matter, please step up to the podium and state your name and address for the
record. Tell us what you think.
Dave Rossbach: My name’s Dave Rossbach. I live at 670 Pleasant View Road. Like 3 houses
away. My concern is, that end of the lake is really heavy with vegetation and any dock that’s put
out there has to be, there has to be tons of chemicals put in the water to even get to a dock.
Okay. My concern is what happens? I mean the dock that he has there is way in from the water.
From where you could even put a boat. I mean Thielen’s got a dock there and he has to put in a
lot of chemicals in the water in order to even get to his dock. I’d be down there kayaking and
you can barely kayak through there. And my concern is, I mean how much is a person allowed
to do, to put chemicals in the water in order to get to your dock? I mean how many feet is he
going to be allowed to go out because I think he’d probably have to go out 100 feet or whatever
to get to the water. Maybe even more. And I’m just curious as to, because it’s going to kill all
the vegetation in that area.
Papke: When you ask the question, you know how far he’d be allowed, how far out he’d be
allowed to go. The drawings stipulate how far his dock can go so I’m not quite sure what your
question is.
Dave Rossbach: Well my concern is with the chemicals that are going to have to be put in the
water in order to clear a path for him to even put a boat there. I mean doesn’t that kill
vegetation?
Papke: Terry, can you comment on any chemical application regulations?
Jeffery: Chairman Papke, commissioners. Yes I can. Under the conditions of approval he
would not be allowed to do anything other than cut the cattails down at the elevation of the
water. There can be no mechanical removal or chemical removal of vegetation. The placement
of the dock actually will bring him within the end of the vegetation but he will not be allowed to
go in there and mechanically grub out or chemically spray vegetation. In order to do that it
actually requires a DNR permit for vegetation management within the lake. Now clearly there
are individuals that do not always follow and get the DNR management, and I am aware of
those. But in this case those are recommendations that we put in there. Other than to create the
path to get out there and place his boat and then it’s only cut as much as necessary. So for
instance where the dock is, he can cut it at the lake level to place the dock because it has to be 8
inches above it. So in the event that you were to move the dock, the vegetation would still be
there to come back. Whereas if you mechanically excavated it.
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Planning Commission Meeting - August 5, 2008
Dave Rossbach: Right.
Jeffery: Or chemically sprayed it, then yes. Then it would be a wetland impact. We’d need to
go through mitigation. Do you have?
Dave Rossbach: That was it. Thanks.
Gary Schneider: Could I just comment on…
Papke: Sure. Maybe step up to the podium.
Gary Schneider: Yeah. I’m sorry, go ahead Val.
Valerie Rossbach: No, you can comment on that.
Gary Schneider: Oh, okay. This is just what I know so far. Not from an expert standpoint but
what I think I’m observing. My dock currently does touch the end of the open water. So in other
words if I put a boat at the end of the dock right now, I’d be just barely in open water. Pulling
the dock back 13, 15 feet, I might have to do, candidly I might have to do some trimming. Pete
Thielen, who has this large non-conforming dock next to me, that area around his dock is open
today, and I know certain times of the season, because of the lower water. Like last year I
believe Pete said that was the worst water level he had seen in 30 years. Things do get low and
you know quite overgrown. But it was even modestly open last year, even in the worst time of
the summer. You know in August. Highest vegetative time now. And I think Pete does put
some chemicals in and I believe that he does that every other year or so. And I don’t want to
speak for him but I also believe that there is a, and maybe this just goes to speak to lily pads. I
don’t know. But there is some kind of approved, I get the mailings. I haven’t paid attention to
them until now but they come out and there is some chemicals that can be used to…lily pads and
that so again, the Rossbach’s know I’m not a heavy duty outdoor guy so I wouldn’t be trimming
anything unless it was needed to be done.
Valerie Rossbach: My name is Valerie Rossbach. I live at 670 Pleasant View Road. I am part
of the Near Mountain Lake Homeowners Association. I want to clarify a few things. I mean
he’s talking about right now if he gets these variances and he won’t cut the weeds and he won’t
put a big boat out there but if he plans to sell his house, the next owner’s going to go in and say, I
can cut these. I can have a big boat because I have rights. That’s my first issue with the last
conversation that we’ve had here. Secondly we have been, he’s been a member of our
association for quite a few years. When we wanted to have a second dock put in for the usage of
all 8 parties in that household we vote you know, they voted against it. They didn’t want that
second dock put in. Another thing about that property there. Outlot A initially was not put there
by Reichert to use it. It did not belong to these people and that lot. Years later David Bodine
owned that original household. That house on 640 Pleasant View Road. Outlot A was a separate
property owned by Reichert. It did not belong to that property. It was not intended to be part of
that property. Years later David Bodine bought the property from Reichert who was off living in
Arizona or someplace. So then he acquired that land, which is fine. He never used it. He moved
away and I think that the problem lies here, we had a Dr. Rockwell come out and she discerned
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Planning Commission Meeting - August 5, 2008
that this was wetlands. When we came in a year ago as an association with all our paperwork
and all our investigation. I don’t know if you recall at all, we were turned down because they
said it wasn’t a hardship and we didn’t need it, because we were able to use that outlot. We have
600 feet of lakeshore. We have a common area that’s grass. We have picnic tables. A fire pit.
It’s walking distance. I live beyond his house. I walk down there just fine and use the property,
and as far as the lakeshore goes he, and another issue that I have with him. Putting this dock out
here.
Gary Schneider: My name’s Gary Schneider. Gary Schneider.
Valerie Rossbach: Yeah I know Gary. I know what your name is. I’m sorry.
Gary Schneider: Thank you.
Valerie Rossbach: I’m a little nervous here, alright?
Gary Schneider: That’s okay…but you can use my name.
Valerie Rossbach: Sorry. I didn’t mean to insult anybody. I’m just saying that, now I lost my
train of thought.
Gary Schneider: You have another issue besides the potential future holder use.
Valerie Rossbach: Do you mind if he not speak to me. He needs to be at the podium doesn’t he?
Okay. Now I’ve lost my train of thought. As far as, oh. This is where I go with this with the
dock. Last spring, a year ago spring he put this dock out there. I’ve been there 25 years. There
was no dock. I’ve never seen a dock there and now he’s telling you that he just put it out there to
see how it looks. He didn’t get permission from anybody. Can you do that? Can you just put a
dock out there like 100 feet to see if it’s going to look right or if you’re going to be able to use it?
I find that questionable. I think that that was wrong. That’s just my opinion. But as far as the
homeowners association, he has ample access to that lake. He can use it anytime he wants. Just
like us he can dock at the dock. We do that. We have a pontoon, and the 3 people that have
overnight dockage, they use it and we’ve all been fine with it for as long as I’ve been there, and I
was there before most of those people. They build new houses and they were vacant lots and
whatever. So what I’m trying to say is, I don’t believe, and he’s never used the lake. He doesn’t
have a boat. He has no interest in it. Even when we had the association, he never wanted to use
it so I’m questioning his motives as far as, I mean I think he’s just doing this, my opinion, just so
he can sell his land and have dock rights or make his property value more valuable. But that
goes against my knowing this lake that all these years we were told we couldn’t use it because it
was wetlands. We’ve protected it. We keep two-thirds of our property by his. We keep it
natural for wildlife and we don’t cut things down. We, all 8 houses share our common area
which is about 200 feet. We share the dock. We share expenses. Our dues are like $50 a month
that we’ve had for 25 years. It’s not a hardship for him to pay $50 a month I wouldn’t think.
And I just feel that it’s not fair that you turned us down and we had really, we did our research.
We had the lake like when it recedes or when it comes up in the spring and what have you, we
did all of that and presented it to you. You turned us all down. Now the same place, just right at
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Planning Commission Meeting - August 5, 2008
the end of our lot, our lakeshore area, now you’re going to say it’s okay to put a dock in there? I
don’t understand that. And as far as him being grandfathered in, that property was not part of his
property when, until right before he purchased the house. So that’s all I have to say. Thank you.
Papke: Thanks for speaking up. Much appreciated. Anybody else? Okay. Seeing no one come
to the podium, close the public hearing and bring it back to the commission for discussion.
Comments. Thoughts.
Keefe: Yeah. Well you know I was here a year ago and I do, you know it’s kind of coming
back. A little bit hazy but it is coming back and yeah, I do remember us turning it down even
though it was a pretty well prepared presentation. You know one of the issues I think that I’m
struggling with is, there seems to be you know a lack of agreement amongst the neighbors here
and I’m struggling with that a little bit. It does seem like there is some access from this property
to the association, but it’s not overnight access. I’m struggling a little bit just with, with you
know not all the neighbors kind of agree to this and it seems like perhaps there should be.
Dillon: They’re not all here either because there’s only…the person that just spoke, spoke on
behalf of the association or themselves. But if the association had an issue with this, you’d think
they’d be here in force if they were that well organized the last time around.
Papke: If I can kind of paraphrase your main issue seems to be that you are not convinced of the
hardship clause perhaps?
Keefe: Yeah.
Papke: Would that be a succinct…
Keefe: Yeah, I think so. Yeah.
Papke: There’s an alternative here.
Keefe: Yeah. I think that probably would sum it a little bit more. You know if I were to go with
it, and one other thing that I would want to see is I would want to see an amendment to the
development contract as well, because you’re going to have a conflict here. I mean you allow it
through the variance to have one boat, but the development contract which stays on with the
property will allow for two boats so you really want to make sure those are synced up so I would
want an amendment to that as well before.
Papke: Okay. Good comments.
Undestad: Yeah I think you know regardless of who purchased which lots and who’s owned on
both sides, maybe the previous owner purchased that piece down there from Reichert so that he
could eventually have access to his, get a dock in there and get his boat on the lake down there.
The association, again I’m not exactly sure how all that came together but I agree with Kevin,
you know if everybody was in agreement then it might be a little different out here but I think
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they’re separate issues. They don’t have rights to overnight docking. They live on a lake but
they can’t have a boat on the lake. I guess I might probably be in favor of it like this.
Larson: I kind of remember the argument last year as well and it seems to me there was an issue,
and I could be mistaken but because the water level was so low, I’m thinking it was the opposite.
Why was I thinking the water was high on that beach? It seemed like it was eroding away which
was the reason why they weren’t wanting to allow to have dockage for 3 more boats on that
property. And again I mixing this up with something else but that seems to be sticking in my
mind. Like Mark said too, I’m inclined to think that no matter who owned it and how long, it
doesn’t matter. The person who, Mr. Reichert that owned property across the street, if he bought
that for the purpose of possibly putting in a dock, I guess I don’t see a problem with that. The
association encompasses the other Outlot B and that’s a whole separate issue and I don’t think
that has anything to do with this.
Papke: Good comments. Kevin.
Dillon: So I do remember this being on the docket last year. Unfortunately I was out that day so
could someone just recap with me real quick the difference with why that was you know, the
rationale for why that was you know denied.
Papke: Do you guys have access to that? I think all of our neurons are…I’m sorry, the public
hearing is closed.
Gary Schneider: Oh, I’m sorry.
Jeffery: I can speak to a few items on that. First of all the Near Mountain Lake Association
would fall under the beachlot rules, whereas this falls under single family residential zoning
rules. But secondly, much as the original subdivision contract confers a dock and 2 slip rights to
Outlot A, it confers 1 dock and 3 outlots, or 3 slips to Outlot B. So they were asking to go
beyond what was approved in subdivision whereas Outlot A is just actually going less than what
is approved in the subdivision. But as to the actual discussion that night, I was not party to that.
Papke: Yeah, appreciate that clarification.
Dillon: So then you know this is a public hearing and if people really have a burr in their saddle
blanket about this, they should be here. Everyone was notified. You know the one family that
would seem to be affected most by this seems to be supportive. Some of the other reasons that
were put forth in the public hearing tended to focus on more personal attack and motive really
than, than really what’s at issue here. It seems to me the applicant and staff have followed good
process. Come up with some good recommendations. Tried to mitigate some of the negative
stuff that could possibly come from this, so in light of all that I’m inclined to support the
variance.
Laufenburger: I was not here a year ago so I don’t know what happened with the other situation.
I assume that staff work was done properly at that time and the council, or the Planning
Commission made a good decision based on that facts at that time. I’d also like to say I’m
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Planning Commission Meeting - August 5, 2008
pleased that the public, members of the public did come forward but based on the facts that I see,
and taking the emotion and the potential enforcement of wetland regulations which is clearly
outside of our boundary, I’m most concerned I think that Mr. Jeffery satisfied this. That the
wetland will not be impaired by this so I tend to approve.
Thomas: Well I too was here a year ago and I do slightly remember the case but kind of hard to
remember but I am, there’s been great comment and I am in agreeance with pretty much
everyone else saying that it makes sense that Outlot A would like to have dock rights to be able
to have an overnight boat. I mean it makes sense. I would think that’s very reasonable and
logical so I’m in agreeance.
Papke: Thank you. I guess my only perspective on this that I can add is, this is obviously a very
unusual situation. Outlot A is almost triangular in shape here and the way the lot lines are
extended into the lake makes it pretty much impossible to put a dock out there without a variance
so I think this is a highly unusual situation where the rules we have you know kind of tie the
property owner’s hands behind his or her back and I think this is the kind of case that clearly a
variance application is designed for because the city code just doesn’t fit this one very well. But
very good comments. I appreciate all the comments and questions from the commissioners on
this one. This is obviously a very tough case. Okay with that said I will entertain a motion for
approval or denial of this variance. Would anyone like to make a motion?
Dillon: I’ll make a motion that the Planning Commission recommends that the City Council
approve a variance from the 10 foot dock setback zone for the placement of a dock on a lot
zoned single family residential which will extend through the 10 foot dock setback zone and 51
feet past the lot line extended, and the Planning Commission recommends that the City Council
approve a Wetland Alteration Permit to issue a decision of no net loss of wetland function and
values based upon the attached Findings of Fact and subject to the following conditions 1
through 8. And Dan, did you have something else that you were thinking of?
Keefe: Yeah well I’d make a, I think you have to have a second before you.
Papke: Yeah.
Dillon: Oh, okay.
Papke: Is there a second to the motion?
Larson: I’ll second.
Keefe: For a friendly amendment to incorporate an amendment to the development contract. I
think that’s what it’s referred to in here is the development contract to only allow for one.
Papke: We can’t really amend the development contract.
Keefe: Require the amendment of the development contract.
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Planning Commission Meeting - August 5, 2008
Papke: Okay.
Keefe: To coincide with approval of this so that we have a consistent look because what will
happen is, the development contract says 2. Well now we’ve got a variance for 1. It’d be nice if
they kind of lined up so that they’re both there so that when somebody comes in and buys it, they
understand it’s 1 overnight. Instead of saying well what is it? Is that 2 boats or is it 1 boat?
Papke: So the staff recommendation says nothing about 1 boat, is that the?
Keefe: No, it says 1 boat overnight.
Papke: Okay.
Keefe: The development contract allows for 2. The development which runs with the property
allows for 2.
Papke: Right.
Keefe: So what I’m saying is that if we’re going to allow a variance for 1 overnight, we should
also amend the development contract to allow for only 1 overnight so that they’re consistent.
Papke: Bob or Terry, is this, how administratively would this, does that work? Do we actually,
can we actually force a change in that or maybe you can comment on whether stipulation,
condition number 6 here has enough teeth to allay any concerns about this or.
Generous: Well, Mr. Chairman I’m not sure that we can actually the DC because who’s it
between? Development contracts are for physical development of a property. It puts in a will of
at the time of the subdivision. I think we have more teeth with this variance and CUP that
specifically relates to this property and these are the conditions of approval and we can enforce
that against this property in the future.
Papke: Okay.
Generous: The problem with one dock, how are we going to find out unless the neighbors…
because we don’t have a shore patrol in our staff right now. Of course we have people who’d
probably like to do it.
Papke: So Dan you want to withdraw that or do you want to try to keep that in there even though
it doesn’t sound like it’s legally viable?
Keefe: I don’t know if it’s legally viable or not. You know contracts get amended all the time.
Undestad: Well more so they get amended during the process. During the development, but like
he said it’s, the agreement could have been between somebody how many years ago that.
Keefe: Yeah.
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Planning Commission Meeting - August 5, 2008
Undestad: They’re not around anymore…
Keefe: Just trying to run out the potential…in the future which you know the next owner comes
in. I mean he’s going to put this property on the market. He gets approved and the next guy
reads the contract, I’m approved for 2 boats here.
Papke: Yeah but, are you willing to go with city staff’s recommendation that this has enough
teeth to be able to do that without changing the development contract or do you.
Generous: This will be recorded against this property.
Papke: Okay.
Generous: It will be in the chain of title.
Keefe: Right. My preference would be to leave it in but I mean if it’s not accepted then it’s.
Papke: It’s your motion.
Dillon: I understand. I mean you know I think it’s fine to leave it in. You know I mean we’ll let
it sort of self out you know with the City Council and all that.
Papke: Okay. Alright, we have a motion. We have a second. We have a friendly amendment.
All in favor of all three of those say aye.
Larson: Two or three?
Papke: Huh?
Larson: Two or three? I’m not in favor of Dan’s friendly. So how do you do that because you
said all three.
Papke: You, unless.
Keefe: It’s kind of all or nothing.
Larson: Okay.
Dillon moved, Larson seconded that the Planning Commission recommends that the City
Council approve a variance from the 10 foot dock setback zone for the placement of a dock
on a lot zoned Single Family Residential (RSF), which will extend through the 10 foot dock
setback zone and 51 feet past the lot line extended; and that the Planning Commission
recommends that the City Council approve a Wetland Alteration Permit to issue a Decision
of No Net Loss of Wetland Function and Values based upon the attached Findings of Fact
and subject to the following conditions:
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Planning Commission Meeting - August 5, 2008
1. No aquatic vegetation is to be removed by uprooting of the vegetation. The applicant
may cut only that vegetation which is necessary for the placement of the dock, the
mooring of the boat, and the navigation of the boat to open water. The vegetation shall
be cut at a height equal to the bottom of the dock or at a depth of the propeller.
2. The dock shall be installed eight (8) inches above the Ordinary High Water Elevation.
3. The dock shall be no wider than the current three and one-half (3.5) feet as shown on the
survey submitted by the applicant.
4. The dock shall be shortened by thirteen (13) feet from what is shown on the survey to
allow for a minimum separation between docks of twenty (20) feet.
5. The boat shall be docked as close to the lakeside end of the dock as possible so as to
minimize the disturbance of aquatic vegetation for the docking of the boat.
6. No more than one watercraft may be docked on the subject property.
7. No fill or excavation may occur within the jurisdictional wetland boundaries or below the
ordinary high water elevation of Lotus Lake except for the fill associated with the
minimum number of posts necessary to maintain a safe dock.
8. The applicant shall abide by all applicable provisions of Chapter 6 and Chapter 20 of the
Chanhassen City Code.
9. Require an amendment to the development contract to allow storage of one
overnight boat.
All voted in favor, except for Commissioner Keefe who opposed, and the motion carried
with a motion of 6 to 1.
Laufenburger: So we have a motion to approve the staff recommendation?
Papke: Yes. And we have a friendly amendment.
Laufenburger: And we have a friendly amendment. Does that friendly amendment.
Keefe: Which was accepted.
Laufenburger: Does that friendly amendment require second prior to voting on the friendly
amendment?
Papke: No.
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Planning Commission Meeting - August 5, 2008
Laufenburger: Okay. So the friendly amendment, by the agreement of the person who made the
motion.
Papke: Yes.
Laufenburger: Is incorporated into the motion.
Papke: That’s correct.
Laufenburger: So we’re not voting twice.
Papke: No, because one vote.
Laufenburger: The inclusion of the friendly amendment is subject only to the person who made
the motion. That would be Mr. Chair, Commissioner Dillon.
Papke: That’s correct, if he accepted it.
Laufenburger: Okay.
Dillon: I accepted it.
Papke: Okay.
Larson: Can we do this again?
Papke: So we have one nay?
Keefe: That’s correct.
Papke: One nay, okay. Alright, motion carries. Okay, thank you very much.
PUBLIC HEARING:
ORDINANCE AMENDMENTS TO CHAPTER 18, SUBDIVISION AND CHAPTER 20,
ZONING.
Generous: As you stated, this is a public hearing to provide some amendments to the
Chanhassen City Code to Chapter 18, which is the subdivision ordinance, and Chapter 20, which
is the City’s zoning ordinance. The first one deals with the subdivision ordinances. Part of the
ordinance, we’re recommending that the city provide standards for a 1 foot separation between
emergency overflow areas and the lowest floor openings on buildings. This came to light as part
of the review of the Lakeside subdivision. There’s a parched wetland in the northwest corner of
the site that had an emergency overflow behind the buildings and we wanted to make sure that
when they build in there, if there’s a super storm event, that those houses don’t get flooded and
so as a condition of approval for that subdivision we added the language that they had to
maintain that 1 foot separation. We just want to codify that so everyone who comes in will know
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