1990 03 21CHANHASSEN PLANNING COMMISSION
REGULAR MEETING
MARCH 21, 1990
Vice Chairman Erhart called the meeting to order at 7:35 p.m..
MEMBERS PRESENT: Steve Emmings, Annette Ellson, Tim Erhart, Jim Wildermuth
and Joan Ahrens
MEMBERS ABSENT: Ladd Conrad and Brian Batzli
STAFF PRESENT: Paul Krauss, Planning Director; Jo Ann Olsen, Senior
Planner and Sharmin A1-Jaff, Planning Intern
PUBLIC HEARING:
WETLAND ALTERATION PERMIT FOR THE FILLING IN AND SODDING OF AN EXISTING
WETLAND LOCATED AT 80 AND 100 SANDY HOOK ROAD, STEPHEN FROST AND BOB
PFANKUCH.
Public Present:
Name Address
Bob & Sandy Pfankuch
Steve Frost
Steve Christenson
80 Sandy Hook Road
100 Sandy Hook Road
Attorney for Mr. Pfankuch
Jo Ann Olsen presented the staff report. Vice Chairman Erhart called the
public hearing to order.
Steve Christenson: Good evening. My name is Steve Christenson. I'm with
the Dorsey and Whitney law firm in Minneapolis. Steve Frost and Bob and
Sandy Pfankuch have asked me to come tonight and represent them with your
permission. As your staff told you, this filling was all done in 1988. At
that time the homeowners had retained a contractor who was familiar or
supposedly familiar with how these sorts of things worked around this lake.
At that time the City stopped construction because the contractor did not
have a permit to do that so the City was aware that construction was going
on. They stopped construction and gave the contractor an opportunity to go
get a permit which he promptly did. So based on that, the City was aware
or should have been aware that there were wetlands there and went ahead and
granted a permit to construct it. Here's a copy of the application for the
excavation permit and I think this is in the materials that you have.
Under Minnesota law, a local government that grants a permit and allows
people to take an action like these homeowners, is estopped. What's called
legally estopped from later changing it's position on that if the
homeowners act in reliance on that permit. Spend considerable amounts of
money which these homeowners have done. So basically our position is that
the City knew about what was going on at the time in 1988. Had an
opportunity to stop it, which they did and then went ahead and granted the
permit to continue allowing what happened. Under these circumstances, it
seems to us that the City shouldn't be allowed to change it's position. I
think the homeowners may or may not want to contribute to that. If you
Planning Commission Meeting
March 21, 1990 - Page 2
have any questions, I'd be happy to answer them.
Erhart: Yeah, if you'd stay there Steve. I guess I'd like, could you
respond to that Jo Ann or Paul? ~.
Olsen: Well the application was filled out and was not granted. Did not
go through the whole process for granted. They did come out and fill out
the application but that does not necessarily mean it was immediately
granted.
Erhart: Was it ever granted?
Olsen: It never went through. It was never finalized.
Erhart: Is that different?
Steve Christenson: I don't believe that's correct. We have a letter from
the City indicating that that application was promptly granted and that the
contractor complied with everything required by the City.
Olsen: What that letter said is that they have come in. That you had made
the application. Where is it? Also you know, that still doesn't mean that
the City cannot go out and find that there still is a wetland.
Emmings: Let me interrupt. Has Roger looked at this? Has Roger looked at
the point that he's raising in terms of it being estopppal based on the
grading permit?
Olsen: No.
E~m~ings: I think we ought to table this until he does. I don't think
there's any point in going forward with the public hearing. I think the
City Attorney ought to take a look at it.
Erhart: Yeah. I mean clearly, I guess if Steve is correct in that he
feels, and which I haven't accepted that you're correct but if you are
obviously then it's a different situation. If the issue is a contested
issue on one versus that, it may not be an apporpriate forum. Paul, what's
your opinion on this?
Krauss: Well, we'd be happy to get an opinion from Roger. I guess these
sorts of things have come up before and I'm not an attorney and I don't
wish to argue points of law but I've been told by two separate City
Attorneys that I've got a lot of respect for that city staff, if we made a
mistake which we don't think we did, but if we did, we can do that. I mean
the worlds not a perfect place. You can then try to rectify that error and
that's a legitimate way of handling things. If you'd like, we'd be happy
to get an opinion from Roger specifically on this activity. We could do
that for you at the next meeting.
Erhart: Well yeah. I think the point Steve is making is this is not the
group that decides who's right or wrong in an argument. I mean we're
essentially, I came into this understanding that it was a clear cut. You
Planning Commission Meeting
Ma~ch 21, 1990 - Page 3
didn't have a permit and I still believe that.
E~mtings: The other thing we could do is act on it tonight and get that
opinion between now and the time the City Council sees it.
Steve Christenson: If the Co~tission does make an decision tonight, I
think that you should consider as a matter of fairness that the homeowners
did try to do everything that they thought they were required to do and
indeed the City stopped them from filling and then allowed them to go
ahead.
Olsen: I've got a copy of that letter and I'm sorry. It had been in the
other report but I don't see it in this report but I'll read it to you if
you'd like. It does not say that the application was granted. It says.
Emmings: Are you sure you're looking at the same letter he is?
Olsen: Yes. I'm positive it is.
Krauss: June 29th? Yes.
Olsen: Attached is a copy of the excavation permit for the grading work
that was done adjacent to Lotus Lake in-the early part of June on your
property. It's addressed to both parties. As you are aware, the City
stopped work on the grading until the appropriate permit was obtained. The
contractor, Mr. Johnson, promptly complied with our request to submit plans
and the needed information for the issuance of the grading permit. However,
it has come to our attention that the area in which you conducted the
grading may have contained wetland vegetation. The City has a wetland
ordinance which protects wetlands of all sizes. In order for the City to
determine whether or not a wetland alteration permit needs to be processed,
we need to determine the extent of the wetland on your property. In order
for us to determine this information, please contact me and submit any
pictures which you would have of the shoreline so that we can resolve this
issue.
Emmings: Was the date of letter was what?
Olsen: June 29, 1988.
Erhart: Any other co~-mtent?
Steve Christenson: I would like to make the commission aware that the
filling was done before June 29, 1988.
Olsen: Right. They came in after the fact.
Erhart: Yeah, I understand.
Wildermuth: But the real point was the excavation permit granted?
Erhart: Yeah, it wasn't I don't think.
Planning Commission Meeting
March 21, 1990 - Page 4
Krauss: No, it was not granted.
Ahrens: It doesn't sound like it.
Erhart: My feeling is Steve, I think we can do our job here tonight and
get is passed on one way or the other and let Roger take, let him take that
up afterwards so why don't we proceed then. Did you have anymore Steve?
Steve Christenson: I would like to make one further point about what the
commission did a year ago. They postponed making a decision until the DNR
had made the determination. The DNR has now come in and concluded that
they think the shoreline should be moved back and the homeowners are fully
willing to comply with that and improve the shorelines so that the erosion
is stopped to protect the environment and the erosion of water and soil
into the lake in that way. Further than that, the DNR does support
granting the permit and I think you should consider that too given the
DNR's expertise.
Erhart: Okay, thank you. Is there anybody else that would like to speak
on this matter?
Steve Christenson: Can I make one more point?
Erhart: Yeah. You bet. The staff reco~ends that 45 feet of wetlands be,
or fill be removed.
Bob Pfankuch: She mentioned 78.
Olsen: I'm sorry that was the width.
Steve Christenson: 78 was the width. 45 feet is the depth. We wouldn't
agree that it's actually 45 feet deep. I was there looking at it tonight
and there's a substantial increase in the grade which seems to me, at least
it looks less than 45 feet away from the shoreline. Although we didn't, I
didn't measure it with a tape so.
Erhart: Any other co~m~ent from the public on this?
~-~ings moved, Wildermuth seconded to close the public hearing. Ail voted
in favor and the motion carried. The public hearing was closed.
Emmings: I have a couple of questions. If you look on page 4 of the staff
report Jo Ann, and just as an example. There's a little table there where
it says, under what it says the DNR is asking to remove. For Frost it says
depth x width x depth. Depth is used twice and I imagine one for going up
and down and once for going into the property? What the hell does that
mean?
Olsen: I knew you were going to ask that.
Bob Pfankuch: Steve, I can answer that. In depth they don't mean up and
down. They mean back from the wall on the lot line.
Planning Commission Meeting
March 21, 1990 - Page 5
Emmings: The word depth is used twice and I'm trying to figure out.
Bob Pfankuch: That's for each lot line.
Olsen: What I was doing, because of the graduating line...it would be 45,
72. That might be just 45. 45. 72 across and 45. The other one it has
45 and 42. The 45, 78 and 42 because it's at an angle. So each side of
the lot line, that's the depth back.
Emming s: Alright.
Olsen: We have those numbers. Sorry to interrupt but we also have those
numbers on the grading permit application that the contractor's provided
showing us what they...
Emmings: You at least understand what they mean and they seem to
understand what they mean so that's good enough for me. Under the
reco~m~endations, we've got one down there for Lot 2, Block 1 which is
Pfankuch?
Olsen: That's Frost.
E~-m, ings: Where's the other one?
Olsen: It's supposed to be in there. I had two different. I had 1 and 2.
Number 2 is missing. So 2 would read, Lot 1, Block 1.
E~m, ings: Okay, and it would be the same general format as that number 17
Olsen: Yeah. The numbers would be 45 x 78 x 42.
Emmings: Okay, and then 3, 4, 5 and 6 would apply to both?
Olsen: Right.
Emmings: Well as far as, the only comment I have is, we acted on Outlot A
in a specific way and I don't see why those reasons don't control this
decision so I'd go for the staff reco~m, endation.
Erhart: Anything else Steve?
Emro ing s: No.
Erhart: Okay, Annette.
Ellson: I would choose to go along with the staff recommendation too. I
think I had all may co~m, ents from the first time it came through it but I
agree with Steve. We sort of have a precedence with asking the last
applicant to go beyond that and I believe something was discussed at that
time about DNR jurisdiction or something like that.
Olsen: They go up the ordinary high water mark.
Planning Commission Meeting
March 21, 1990 - Page 6
Ellson: Right, so they would usually never recommend anything beyond that
anyway so taking them as an expert still 'would only go to the one point so
I don't think that that holds a whole lot more weight so I'd go along with
the staff's reco~,endation. No other co~ents.
Ahrens: I go along with the staff's reco~endation on this also. I have
no further co~m~ent.
Wildermuth: I guess I'm not really satisfied that there is a need to go
back the 45 feet. DNR is reco~ending considerably less and I guess Jo
Ann I'd like to hear a good argument why we're exceeding that by several
orders of magnitude.
Olsen: Because the edge of the wetland was beyond that.
Wildermuth: But they must have known that when they made their
recommendation.
Olsen: The DNR can't go beyond. They can't make them remove beyond the
ordinary high water mark. That's as far as their jurisdiction goes.
Bob Pfankuch: The DNR last October had a core sampling tube out on the
property. They were pulling core samples back, roughly 10 or 15 feet from
the rock wall which in itself is like 10 feet into the water I guess
according to the DNR which has to be moved back. Several occasions there
was no wet soil or wetland soil. In fact on the last occasion, he broke
the tube because the ground was too hard and it wasn't frozen. I talked to
Pat Lynch of the DNR the day before yesterday. Unfortunately his notes
don't indicate exactly where he pulled the core samples but I'm sure that I
could get him to testify or get a letter from him to the best of his
recollection where he pulled the samples. Some of them clearly were not
wetland and I'm talking like, you know 5 feet back from the ordinary high
water mark. So 45 feet back is just, has no relation to reality number
one. Number two, the first issue that Steve discussed, you're talking
about well if we did this to the Colonial Grove Association outlot, then
the same thing should apply. It doesn't apply because of the issue of the
permit. The association did not receive a permit. The contractor
apparently did not include that in his requestion for the grading permit.
Only Frost's property and Pfankuch's property were included so whatever you
did to the outlot has no bearing in terms of that issue regarding the Frost
and pfankuch property.
Erhart: Okay. Yeah, I think we're assuming here tonight that the permit
doesn't exist. I think that's the position we're taking there so Jim, go
ahead and proceed.
Wildermuth: Well I think a permit is required. I certainly agree with the
staff reco~,endation in that regard but I guess I'm not satisfied that we
have to exceed the DNR recommendation by several orders of magnitude.
Erhart: Is that it?
Planning Commission Meeting
March 21, 1990 - Page 7
Wildermuth: That' s it.
Erhart: Remind me again so I'm clear, the resolution to Outlot A was what?
Was that in the meeting here?
O1 sen: Yes.
Erhart: I won't ask you if I was here because I'm afraid of the answer.
Olsen: Right. They had to remove a depth of 45 feet.
Erhart: And they agreed to that?
Olsen: They never came to the meeting.
Ellson: They didn't contest it.
Olsen: And that went through the Council.
Erhart: Okay. Is there any possibility to mitigate this in terms of
moving, establish another area on the lot?
Olsen: I don't know where you would do it. No. Typically, I mean this is
a Class A wetland. Adjacent to the lake. I don't know where you could
replace that type of wetland on their property or on that site.
Erhart: You could move it to the Eckankar property. I mean that's one of
the ~recommendations we're having tonight on another one. The real issue is
here, one way to look at this is that if it was just a 1 acre wetland and
they filled it without a permit, how would we react to that?
Olsen: We are right now I believe.
Erhart: Yeah, except that in some cases now we have this new alternative
that we can move it to the other side of town. Not that I want to give
anybody any ideas but.
Krauss: The one you're quoting though Tim is due to an unavoidable public
action and we are in a position to control the acquisition of the new
wetland and it's establishment elsewhere. It's unavoidable and it was in
the public interest for that street construction that that be considered.
Erhart: Yeah, I understand that but it's just that, and obviously we would
prefer to have this discussion before the action was taken so we could deal
with this logically.
Wildermuth: Tim, I just had a little question. If the lake lot removes
the fill 45 feet back from where they currently filled, is that what you've
proposed there or is that what they're charged to do?
Olsen: Well there is a cross section that the DNR has provided and what
that would do is allow the ordinary high water mark to come back to where
it was. Then the remaining portion would come up at an angle and would
Planning Commission Meeting
March 21, 1990 - Page 8
have to be allowed to revegetate in a natural state.
Wildermuth: It'd be an awfully gradual angle then. How does 45 feet blend
with the, or let's see it would be 45 feet. How would that blend with the
lot adjacent to the Pfankuch lot? The next one.
Olsen: It starts at 45 and then as you go to the west or the southwest, it
goes down to 42 and the next lot over is left natural. Is that what you're
asking?
Wildermuth: Yes. I'm asking where the wetland ends on the adjacent
property to the Pfankuch property.
Olsen: These lines don't really reflect or aren't to scale but it is,
wetland vegetation...from what we could tell.
Erhart: If we were to change the recommendation to provide some
flexibility and use the term restored to original condition and allow you
some discussions with the applicant later on to actually determine where
this line really was, would that make it easier or harder for you to
resolve this going forward?
Olsen: There will always be discussions on where it was.
E~-~,ings: I guess my suggestion on that would be this. Instead of, why
don't we put in a condition that says that if they can, assuming that this
is passed in it's present form, that if they can show any evidence that the
wetland, did not extend that far into their property, that the City should
take that into account and these figures should be adjusted accordingly.
Erhart: Okay. Well, that would be my reco~endation so if you would like
to make, I don't know if any of the other co~,issioners would have any
comments, if you'd like to make that motion Steve.
E~m~ings: Yeah, I will. I'll move that the Planning Co~,ission reco~end
approval of Wetland Alteration Permit #88-3 with the following conditions.
Number 1 will read as is in the staff report. Number 2 will be reinserted
to include the other property. There will be 3, 4, 5 and 6. We'll have a
new number 7 that will say that if the property owners can present proof to
the satisfaction of the City staff that the wetland did not extend into
their properties from the lake as far as they're being required to remove
fill, then that should be taken into account and the amount of fill to be
removed should be adjusted accordingly.
Ellson: I'll second it.
Wildermuth: I have one little problem there. If you look at 4 and 5. 4
says the area of removed fill shall be allowed to restore to a natural
state and then 5 says any purple loosestrife that returns should be
i~,ediately removed as reco~ended by Fish and Wildlife. How are you going
to destroy the purple loosestrife without destroying everything else?
Erhart: Pull it out.
Planning Commission Meeting
March 21, 1990 - Page 9
Ellson: According to that manual you can do it.
Erhart: Pull it out by hand.
Ahrens: You can't do that.
Bob Pfankuch: It's never been demonstrated that it can be done.
Erhart: I know I've tried it myself.
Ellson: Do people have this manual?
Erhart: I think 5 is just reiterating. Actually I think there is an
ordinance for a lot that does require the removal of purple loosestrife
already.
Olsen: Nuisance. Yeah, it's a nuisance.
Erhart: So 5 is just repeating what is already a law so does that satisfy
you Jim?
Wildermuth: No but.
Bob Pfankuch: Also in conversation with Pat Lynch, I know there's been
some articles in the papers about illegal sanding of the beaches so I asked
him about that. You can sand the beach to a depth of 6 inches twice
without a permit from the DNR. If we move the wall back and I sand the
beach, what I'm going to have is a water filled ditch if you ask me to
restore a wetland and eventually that will fill up with soil, vegetation up
against the rock so you're just going to make me remove something that's
going to naturally fill in all by itself because the sand on the water side
of the rock is going to be higher than the so called restored wetland. It
just doesn't make any sense. Besides being obviously punitive, you're
asking me to restore something that never existed.
E~ings: That's an interesting point. Are you saying there never was a
wetland down there?
Bob Pfankuch: I'm saying there never was a wetland as described by the
planning staff.
Emmings: Do you have photographs of your property from that time before it
was filled?
Bob Pfankuch: I have some photographs but they're not of a nature that I
think could be used to show that. Some of the photographs that I supplied
that were xeroxed copied with the construction equipment on it at the time
that it was stopped will show the extent of the loosestrife which is on the
water side of the front loader. Then on the other side you can see that
there's a clearly delineated section of land that was sodded going down to
the dock and it would be the left side facing the lake, whatever direction
that is, is where the hill was that actually was carved down to flatten out
Planning Commission Meeting
March 21, 1990 - Page 10
the land. That was solid virgin earth. Shirley's here tonight. Her
property is adjacent to mine. Opposite the Frost's. The ordinary high
water stake is about 2 feet back from the water's edge currently. Her lot
is in natural condition. It certainly does not have 45 feet of wetland. I
mean if it's more than 10 feet I'd be surprised behind the ordinary high
water mark. Thank you.
Erhart: Any comments Paul?
Krauss: Well you know as to the sand beach, the DNR may have regulations
again about that. I'm sure they do but you cannot throw a sand beach down
in a Class A wetland and no DNR official would tell you that you could.
Erhart: What is it? You can put a sand beach down in this city below the
ordinary high water mark? That you can do?
E~m~ings: But you need to get a permit to do that. You can sand above the
ordinary high water mark is my understanding without talking to the DNR but
you can't sand below the ordinary high water mark without talking to them.
He said something different tonight but I just don't...
Bob Pfankuch: It's not the way Pat Lynch explained it to me. He said you
can sand 50% of the lakeshore not to exceed 50 feet to a depth of 6 inches
each time. You can do it twice without a permit. You have to get a permit
for the 3rd and 4th and 5th and 6th time.
E~m~ings: Below the ordinary high water mark?
Bob Pfankuch: If I fill up the water area on the other side of the wall
with sand, what I'm going to have is a triangular ditch.
Erhart: But is it below the ordinary high water mark or above?
Bob Pfankuch: It's on the water side of the ordinary high water mark where
you can sand...
EF~,ings: But not if there's a wetland there you can't.
Bob Pfankuch: It's filled with water. What do you call that?
Wildermuth: If he has to remove all the fill, then it will be covered with
water right.
E~ings: So what?
Erhart: But your feeling is it's above the ordinary high water mark?
Well, anyway I guess what happened. Essentially if the applicant feels the
date is wrong that we dealt with, he has the option to do what?
Krauss: We'd be happy to receive any better data than we have. We made
our best guess reco~tendation after the fact which is difficult to do.
Planning Co~'m, ission Meeting
Ma~ch 21, 1990 - Page 11
Erhart: And so to get it reviewed again and we're going to pass something
here. To get it reviewed with better data, does he go back to Planning
Commission? Does he take it to Council or can you give him some...
Krauss: It would be helpful if it were clarified before it went to the
City Council. Otherwise we could try and do it at staff level.
Bob Pfankuch: I'd say the burden of proof is on the City.
Erhart: Okay, is there any other discussion?
E~m~ings moved, Ellson seconded that the Planning Commission reco~,end
approval of Wetland Alteration Permit #88-3 with the following conditions:
1. Lot 2, Block 1, Colonial Grove at Lotus Lake 2nd Addition, shall have
45' x 72' x 45' of fill removed measured from the property line
adjacent to Lotus Lake as shown on the final plat. The fill will be
removed by June 15, 1990 using the typical cross section provided by
the DNR.
2. Lot 1, Block 2, Colonial Grove at Lotus Lake 2nd Addition, shall have
45' x 78' x 42' of fill removed measured from the property line
adjacent to Lotus Lake as shown on the final plat. The fill will be
removed by June 15, 1990 using the typical cross section provided by
the DNR.
3. The applicant shall be permitted one boardwalk through the restored
wetland to provide access to the dock.
4. The area of removed fill shall be allowed to restore to a natural
state.
5. Any purple loosestrife that returns shall be i~-~ediately removed as
reco~m~ended by the Fish and Wildlife Service manual, "Spread, Impact
and Control of Purple Loosestrife in North America Wetlands".
6. Prior to any work being done on the site, the applicant shall submit
for City staff approval a grading and erosion control plan.
7. If the property owners can present proof to the satisfaction of the
City staff that the wetland did not extend into their properties from
the lake as far as they're being required to remove fill, then that
should be taken into account and the amount of fill to be removed
should be adjusted accordingly.
Ail voted in favor and the motion carried.
E~m~ings: I think Jim is voting no but I'm not sure. Maybe he didn't vote.
Wildermuth: I voted yes but you know...
Planning Commission Meeting
March 21, 1990 - Page 12
Emming: The other thing is the City Attorney ought to look at...
Wildermuth: The other thing is, we ought to have some kind of a provision
in here that the city staff and DNR and the property owners get together to
establish how far back the excavation has to be. 45 feet is an awful long
way.
Erhart: Well I thought we did that. Effectively by adding the new point,
I think we did leave it open for discussion.
Ahrens: If they can come up with some proof.
E~m~ings: But the other thing is Jim, the DNR's interest ends at the
ordinary high water mark. They have no interest above that. We have
stricter standards than they do and we're entitled to have those.
Bob Pfankuch: Just one more thing. City sewe~ extends beyond the ordinary
high water mark. The DNR, Pat Lynch doesn't go with a straight line
between the two markers so I suggested a curving more natural shoreline
certainly at least to the extent of the city sewer. He said if you have to
pull it back to the ordinary high water mark, the City will have to remove
the soil. And incidentally, that 20 foot easement was put in by the City
and the wetlands were covered by the City so I'm really not responsible for
that. That's an existing condition. That's 10 feet on each side of the
sewer. 10 feet on Frost's property...
Erhart: Okay, this will go to City Council, unless you have some further
discussion with staff, on April 9th.
PUBLIC HEARING:
WETLAND ALTERATION PERMIT FOR FILLING AND ALTERATION OF CLASS A AND B
WETLANDS LOCATED ON LAKE DRIVE EAST, SOUTH OF HWY. 5 AND EAST OF DAKOTA
AVENUE, CITY OF CHANHASSEN.
Jo Ann Olsen presented the staff report, vice Chairman Erhart called the
public hearing to order.
Ellson moved, Emmings seconded to close the public hearing. Ail voted in
favor and the motion carried. The public hearing was closed.
Wildermuth: It seems inconsistent that here we're going to fill a wetland
and on the issue just preceeding this we're going to make people restore a
wetland. This is all in the Lake Riley watershed right Jo Ann? So it's
legitimate to do this trade-off as far as the DNR is concerned?
Olsen: What we're doing is we're not redirecting, there's only a small
portion of the area A wetland so the water that purpose is serving has not
been altered. The water runoff would still be maintained in the area B
wetland by putting in the storm sewer. It's just not running above
ground, it's running below ground.
Planning Co~'~Lission Meeting
March 21, 1990 - Page 13
Wildermuth: I support the staff reco~mLendation on this issue.
Ahrens: I had a problem with this too for the same reasons that Jim
stated, although I can see that there is a different situation here. I
didn't hear much talk though when the last discussion about the type of
wetland that was located on these people's property. Whether it was a
Class VII or whatever class it was and whether or not it was good or bad.
Olsen: It was Class A.
Ahrens: Ail the way up? Ail 45 feet up?
Olsen: Right, was a Class A. It wasn't as far as the quality, it did have
purple loosestrife in it and so that wasn't the highest quality but the
wetlands adjacent to open waters are some of the most important so I do
strongly feel that there's a different between these two situations.
Ahrens: And there's no place on this property to relocate the wetland?
Olsen: There are several different properties along here. And again, area
A really doesn't have to be. They're going to be developing. The
McDonalds site is coming in in the near future too so we don't want to
replace it there.
Krauss: The expansion.
Olsen: Or the expansion. Their site plan. The area B wetland, these
sites are going to be developed in the future so that's not really where we
would want to replace them. There is a wetland that was a man made pond on
the DataServ site and we are looking. They are going to be coming in the
future too to replace that wetland and provide a larger one, almost double
the size and create a better wetland. So there was the opportunity to
possibly have, replace some of these areas on that site. It just didn't,
we weren't verified that was going to actually happen and we still aren't.
Whereas with the Eckankar site we do know that that's going ahead. We do
have that replacement there that we can use.
Ahrens: Is that the .only location where you're relocating wetlands?
Olsen: Currently that's the one site that the City is involved with as far
as our mitigation bank this is going. We always prefer to replace them on
that site and we did discuss that with this situation and didn't really
have a place within the alignment to do that.
Ahrens: So if McDonalds comes in with a proposal to...
Olsen: They're not going to be, they're just going to be going up to the
edge of that. That is one, that's the type of wetland that we have allowed
to be filled and then replaced elsewhere on that site or to be improved
somehow. The McDonalds site plan, with their expansion doesn't impact that
wetland so we don't have the opportunity at that time to require them to,
if they're going to be filling it or altering it to replace it with another
wetland on that site. But possibly when that property inbetween those two
Planning Commission Meeting
March 21, 1990 - Page 14
wetlands, when that develops, then we would have that opportunity if they
impact those. But we just don't have control of those properties. We
can't really say. It's a city project so we really can't say that they
have to replace the wetland and we would have to purchase the property.
Ahrens: I'm just curious. How is the City able to keep expanding the
wetland on the Eckankar property?
Olsen: On the Eckankar property? We're purchasing a portion of that for
storm water management. It's part of the downtown, the West 78th Street
realignment.
Ahrens: It's just going to keep expanding? Keep purchasing?
Olsen: No, we already have it designed and it was in excess of the acreage
over what we had to use to replace another wetland that we altered with
Lake Drive near Rosemount.
Krauss: Mr. Chairman, if I could expand on that just for a second. If it
seems like we fly by the seat of our pants with these sort of replacements,
that's in effect what we do right now. Staff has been talking to the City
Council for the last 4 or 5 months about the possibility of undertaking a
· storm water management plan, a comprehensive storm water management plan
that would also embody a very heavy wetland protection effort and probably
a redrafting of our wetland ordinance. Those sorts of trade-offs would be
very clear and understandable under such a plan. I think the Council and
staff see the merit of that and now it's a matter of bringing that about.
We're looking for some financing mechanisms for it. It's rather an
expensive and lenghty process but that's clearly the way to resolve these
things in a comprehensive manner. Until that time, we're doing the best we
can with these replacement programs.
Ahrens: It does Seem arbitrary to me and I don't understand what standards
are being used to determine what wetland should stay and which one should
go except for some are more valuable than others but I still don't
understand those standards. That's why I have a hard time voting on this
to tell you the truth.
Erhart: Annette, do you have something there?
Ellson: I saw this once before and I it confused me at the time and I was
going to ask you if we were buying the land on Eckankar or if we just sort
of tell them to make it bigger and they'll do it or whatever. What I was
wondering is if somebody else was developing and they couldn't build their
wetland on their exact site like we'd prefer and yet they owned other land
within our property, would we allow them that same opportunity that we're
giving ourselves is what I'm saying? I mean for all fairness we should
probably, I've never been involved in one.
Olsen: That's never occurred but yes.
Ellson: I can just see someone coming up to us and say well, you guys just
moved yours when you wanted to take it out and I own a little patch of land
Planning Commission Meeting
Ma~ch 21, 1990 - Page 15
over here, what if I just turned it into wetlands. Would we allow that
sort of thing as a mitigation?
Olsen: That is something that we will be, that's kind of a new thing
that's happening with the mitigation banking. If they don't have other
land and the City does that we can develop and they can provide like a park
fee or wetland fee.
Ellson: Yeah, somehow buy it.
Olsen: Right. The money that would go towards...
Ellson: Get it dedicated towards that.
Olsen: If it's a viable Class A wetland, even with the City we try to work
around that because those you just can't replace.
Ellson: The other question I have was the Eckankar property wetland is
going to be an improvement over the current one?
Olsen: Over these two?
Ellson: Right.
Olsen: Oh yeah.
Ellson: From what I remember. In other words, it's going to be we're
taking 2 okay ones and we're replacing it in a totally different area with
a great one or something to this effect.
Olsen: We are.
Ellson: So that might be another precedence that it has to go to an
improvement or something like that?
Olsen: We've done that too.
Ellson: Well I'd vote to accept the staff proposal. Nothing further.
E~,ings: There's Class A and B wetlands in each of these areas. When
other people come in and want to, just looking to the one to the west
there, when they want to alter wetlands like that. Would we feel it's
necessary for them to alter it, then usually we have them improve the
balance of the wetland. Is there an opportunity to do that there?
Olsen: Again, it's not on our property. I don't know how we would, would
we have to acquire that property or whether we could do it with an
ea semen t.
Emmings: Oh, I see. But we're acquiring...
Olsen: It's just where that dot is.
Planning Commission Meeting
March 21, 1990 - Page 16
Emmings: Yeah, I can see it. We've acquired that property.
Olsen: Through an easement. Well and actually when McDonalds comes
through their platting, we will be acquiring this as right-of-way...
EF~ings: So really it's not ours. We don't have the opportunity to go in
there and improve it.
Olsen: This one will return to it's state. I mean it's going to be
altered but it won't have that water. The ditch running through will be,
the middle will return to it's natural state.
E~ings: Well I guess I can see a rationale, although I think the City
should look for opportunities to improve wetlands that we affect. I guess
it wouldn't be appropriate here but I think we should look for those
opportunities. If we're going to require it of everybody else, we ought to
be setting the tone but this I guess is not a place to do it. It seems to
me to be distinquishable from the last one we were talking about when we
were talking about putting in public improvements that benefit everybody.
That's quite a different thing than filling wetlands on your own land
simply because you prefer to so I don't have too much trouble with that. I
just hope we're doing everything we can to look for alternatives for the
path of storm sewers and everything so we avoid these areas but I vote for
this assuming that all that's already been taken into consideration.
Erhart: Who owns the property?
Olsen: It's Chanhaven Plaza who actually owns it.
Erhart: I mean someone owns that whole piece?
Krauss: Yes. It's privately owned and McDonalds is buying a sliver of it.
Olsen: And then DataServ also.
Erhart: In our ordinance, wetlands ordinance, do we have a minimum size of
wetland? How do you know when a wetland isn't a horse making a hole in the
dirt?
Krauss: Yeah, there's a real dile~,a there frankly Mr. Chairman. That's
one of the other issues that we want to get at with this storm water
management plan. Our ordinance basically says-we know it when we see it.
And depending on who's looking, it's either there or it isn't. We try to
be consistent but it's difficult.
Erhart: Essentially I guess my feeling isn't a whole lot different than
what appears to be the consensus on the commission here. I would add that
in reality I think we have to put a minimum size of what is a wetland
because from the standpoint of people managing their land and trying to, a
practical approach to land development as much as I think most developers
that come in here want to work with us on our wetland ordinance, there is
some point where a half acre wetland, although it may be valuable, it's
value at some point where it just becomes such a small thing relative to
Planning Commission Meeting
March 21, 1990 - Page 17
what the social function of the land is, that you have to draw a line
someplace. I know the DNR I think draws a line at 1 acre.
Krauss: No, it's 10 acres or 2 1/2 in some.
Erhart: Isn't there something that's 17
Olsen: If you fill more than 1 acre of a wetland.
Krauss: What we've been looking at is a system that doesn't take size only
into account but it takes the value of the wetland. You can have a half
acre wetland that's pristine wildlife habitat and you have a 5 acre one
that's somewhat worthless and there are ways now of getting those
gradiations down on a map and you can accept changes in one and not the
other.
Erhart: Anyway, in my mind it's something less than an acre and these are
both less than half an acre and so again, not to repeat but I agree with
the statements here and with that, those comments, if we're all ready,
entertain a motion on this.
Ellson: I move the Planning Commission approve the Wetland Alteration
Permit #90-1 as shown on plans dated March 12, 1990 with the two conditions
outlined in the staff's report.
Erhart: Is there a second?
Wildermuth: Second.
Erhart: Any discussion?
Ellson moved, Wildermuth seconded that the Planning Commission reco~,end
approval of Wetland Alteration Permit #90-1 as shown on the plans dated
March 12, 1990 with the following conditions:
1. The type of wetlands that are being removed as part of the Lake Drive
East improvements including Types II, III, V, VI and VII will be
provided in any equal amount at the wetland site on the Eckankar
property which is being developed as part of the West 78th Street
Detachment Program.
2. Type III erosion control shall be provided to protect unaltered wetland
areas.
Ail voted in favor and the motion carried.
Planning Co~m, ission Meeting
March 21, 1990 - Page 18
PUBLIC HEARING:
PRELIMINARY PLAT TO REPLAT LAKE RILEY WOODS 2ND ADDITION TO CORRECT A
PLATTING ERROR, GEORGE NELSON ASSOCIATES.
Public Present:
Name Address
Joel Cooper
Jim Peterson
Mr. and Mrs. Fraser
Pioneer Engineering
George Nelson Associates
Lot 4, Lake Riley Woods 2nd Addition
Paul Krauss presented the staff report. Vice Chairman Erhart called the
public hearing to order.
Joel Cooper: My name is Joel Cooper. I'm with Pioneer Engineering. We're
the engineering firm that was fortunate enough to have made this mistake.
I guess I take exception with Paul's statements. I guess our position is
obviously we've made a mistake and it's not a little mistake. It's one
mistake that's compounded to another mistake. We have in good faith tried
to resolve this situation in a manner in which we think is reasonable and
most prudent for all concerned. We've had several meetings with the
homeowners on Lot 4 trying to resolve a lot line that would meet with their
satisfaction in this replat. Had met with that satisfaction. The line
that we have moved it over to is at a location where they previously
thought was their lot line and contains all the improvements that is on
their lot. The net result of this of course is that the corner lot
requires 2.2 acres, or is reduced to 2.2 acres. We realize that this is
substandard but we feel that .3 of an acre shortage in a 2 1/2 acre lot
doesn't make that lot deficient in the fact that it can still function as a
lot. You can still locate drainfields on it. You can still place a house
on it and can meet all the other needs and can support a house. Also, with
this replat is the net platted area remains the same. The only difference
here is that one lot is .3 short and I guess we feel like this is the best
solution for all concerned. I guess I don't know what else I can say.
Erhart: Thanks Mr. Cooper. Go ahead Steve. Do you have a question?
E~m~ings: I'd just like to ask you a question while you're up there. Has
anybody estimated the cost of moving the road to where it ought to be?
Joel Cooper: Well, to construct the road where it is presently cost...
E~ings: No, that's not the question. I know that cost.
Joel Cooper: Well okay. To move it to where it would have to go would be
approximately the same cost. Basically what you'd have to do is you'd have
to tear up the whole street. There was extensive earth correction work
done. That would have to be redone into the new location.
Emmings: So your best estimate is that it would be the same?
Planning Co~,ission Meeting
March 21, 1990 - Page 19
Joel Cooper: You'd basically be building the street over again, yes. In
addition, there would be costs in locating the electric that's presently
there and I'm not sure what that cost would be.
Erhart: Okay. Mr. Cooper, maybe if you'd just take this front seat there
in case we have any other questions. Is there any other co~,ent from the
public on %his?
Delores Fraser: My name is Delores Fraser and I'm the owner on Lot 4. I'd
like to express my opposition to the plat being replatted and a variance
given on Lot 5 because we feel that with the position of the way our house
is on the land, that it would seriously depreciate the value of our house.
The only way I can really show that is to show you how our house is sitting
on the land. You have the same map but I think I have it too .... the way
the house is oriented, the surveying company that surveyed the road and put
the road in also staked our house. The ideal was with the road in straight
that they have the house flush with the cul-de-sac and the back of our
house should be looking back into the road that comes here and here houses
and here is the back of their 2 1/2 acres and our house should be looking
straight back into the 2 1/2 acres. Instead with the road coming in at an
angle and they staked the house, it was staked back into the development as
a results of the skew of this road. The only buildable place on Lot 5 is
on this ridge right behind our house so the house is pretty much on the lot
line very close to our house which could have...back yard literally. 50
feet away and it would be really close together. We feel that that is an
unacceptable situation. Another point that wasn't brought up by
engineering, when you're looking at these maps, the way they use the center
line of the road it should have been...the lines that are on the ground are
not the lines that are on there now. This is the way that it looks now.
Emmings: Another thing you might do is we've got a new map from the
engineers and why don't you tell us if this looks kind of accurate to you.
Delores Fraser: It is.
Mr. Fraser: Do you have a red marker?
Olsen: This might work.
Mr. Fraser: When we got this piece of property this is what we thought...
It was staked along that line there. That's what we thought...and in
reality the problem was found when another survey company came in because
somebody was going to buy Lot 5 and jumped the gun a little bit and had the
house surveyed and when he surveyed the house, he put it in the most
obvious spot. The stakes are still sitting there and that's where it is in
our backyard because it happens it all low lying in the front and you can't
see the picture but it's actually swampland almost... That first high
point is the most obvious place to put it but it ends up in our back yard.
Then when they came in, they staked it. They put the corner stakes really
where the line is, 10 feet, 5 feet from our house. That's how close it is
to our house, the corner stake. That's really where the whole problem was
found by another surveying company coming in there and...the way that lot
is existing, the two houses will be about 75-65 feet apart. We'll look
Planning Commission Meeting
March 21, 1990 - Page 20
out our back window and see this house and we bought a 2 1/2 acre lot...
Part of that location problem is when we put this house where we... and
they showed it on the map to us after they surveyed it and put it on there
which had to be wrong because they used the wrong lines so it couldn't be
right. And then when my wife got the paper, she told them something's
wrong here. This looks terrible. It looks really...and it's really wrong
so they brought somebody out to the back of our house. You're looking at
lines on a piece of paper. In the field there is no line. It's just like
this and we find out later, 2 months later that the person who came up
and...was a computer progra~ter and did not anybody of any knowledge and we
raised... Part of that is due to the fact that the survey company, when
they placed the house and we did bring up the point that my wife, when she
picked it up, something doesn't look right. We didn't know what because we
weren't knowledgeable enough.
Emmings: Do you know how far in fact your house is set back from the true
lot line that divides 4 and 5?
Mr. Fraser: Oh I know. It's about, the true lot line, I have less than 10
feet from the corner of my house because the stake ended up... That's
where the stake ended up.
Emmings: That was the stake showing that lot line.
Mr. Fraser: That was the other survey.
E~m~ings: The platted lot line.
Mr. Fraser: The other survey showed the lot line there.
Delores Fraser: We feel the only way...is to go along with staff's
reco~,endation...so we're hoping that you don't approve the variance
because we think it's going to...
Wildermuth: Would you lay your overhead back on there. You show 3
cul-de-sacs. Which is the actual cul-de-sac now?
Krauss: The actual one is where the solid line is.
Wildermuth: The most northerly one?
Krauss: Right. The right-of-way is the dashed line underneath.
Wildermuth: I guess there are only two. It seems to me I saw three.
Joel Cooper: Some of what the Frasers said is true here. However, I guess
I have to take exception to a couple of the co~,ents they've made. Firs. t
of all the location of their house, they mey our survey crew out on the
site and they located on the site where they wanted their house and how
they wanted to orientate it. The lot line that we're showing them right
now is the exact same lot line that they thought they had at the time they
orientated their house.
Planning Commission Meeting
March 21, 1990- Page 21
Erhart: Let's let Mr. Cooper finish.
Joel Cooper: We in good faith met with the Frasers at their house more
than once trying to establish a lot line that would meet with their
satisfaction. What we've shown on the replat at that time had met with
their satisfaction. We agreed also at that time to provide them with
financial money to help them screen themselves from Lot 5. Create some
privacy in their backyard. We sympathize with them. However, we have to
also bear in mind that although the house is skewed, they also had the
opportunity out at the site to look at how their house was sitting on their
lot to get the orientation they wanted and they chose this orientation
because at that time they told us their excavater, they wanted a walkout
lot or a walkout on the corner of their house and told them that this was
the best way to get a walkout on their house so this is how they selected
how they wanted their house orientated to get the walkout to reduce or
minimize their grading costs which be it as it may is basically as I
understand it is how they selected how they wanted their house orientated.
As far as the distances from the existing lot that they're platted on,
their house is presently 20 feet from the existing lot line as platted. It
meets setbacks. The only encumbrance that we've been able to find is that
their septic system encumbers onto Lot 5 in it's present condition or it's
present location. I think the drainfield as we located it is still on Lot
4 as platted. The purpose for putting the line over there where we've
shown it on the replat was to try and create a back yard to the same
conditions as what they thought they originally purchased. I guess that's
all I have to say.
Erhart: Okay, why don't we let the Frasers speak one more time. We don't
want to get this into an argument but why don't you go ahead and if you
would come on up.
Mr. Fraser: The original lot line is obviously always a straight line
because that's, and when they made the error it was still a straight
line...so all that area in the front there would have been included in our
property also... And when we met with Pioneer, to us the optimum solution
and would allow a house to sit on Lot 5 was...if it was up farther...we
would have been a lot more amenable but they said that's not possible. You
can't put any covenants on property whatsoever because, it just requires
grading to do that and that was what it would take if they... So right now
we feel that the...and the way the replat is shown, actually we have more
property...
Erhart: Let me phrase what I thought you said. You said that you would be
better satisfied if the house on Lot 5 was moved towards the front of the
lot line? Is that what you said?
Mr. Fraser: At that point it would have been...but even now the way the
property is and stuff, I have trouble...because I have an additional
problem with the house being...which I still think is Pioneer Engineering's
fault because if the road was straight that wouldn't have occurred.
Erhart: But because the house, where you think it has to be or on that
plan is so close to your view. That's a significant problem for you?
Planning Commission Meeting
March 21, 1990 - Page 22
Mx. Fraser: ...significant problem in that I'm looking straight into the
development...
Erhart: Okay, thank you. Is there anybody else who would like to address
this issue?
Jim Peterson: My name is Jim Peterson. I work for George Nelson
Associates, the developer and I don't know if I'd necessarily like to
address this issue but I will as long as I'm here. I feel empathetic for
all parties involved. I sold the Fraser's the lot. I'd really like them to
be happy in their new home and I don't like to see them going through this
stress that this is causing them. I don't appreciate the mistake being
made but it happened and I have to live with it and I don't see a real
point myself being vindictive towards the engineer or the people that made
the mistake. I really want resolution to get on with things if at all
possible. I feel if there's any hardship here, that I'm probably affected
as much or more than anyone. It's my ultimate obligation to satisfy the
Frasers. Not only in title but their happiness to some degree. It's my
ultimate responsibility to correct the problem. I put the road in. Paid
for the road. Provided financial sureties to the City for the road and I
can't sell a lot until this is resolved. It's not of my doing, not of my
causing but I'll do what I can do to help solve the problem. As I sit here
and listen to this, I've been involved in this from the beginning and I
hear two sides and they don't, I don't know that either one of them are
completely accurate from my perspective. And I'm not in a position to pick
sides here with either of these people but some errors that I've heard in
the discussion of this. One, I don't know that anybody objects to the
replat per se. I think, and correct me if I'm wrong, that staff and the
Frasers and Pioneer are all in agreement that it probably doesn't benefit
anyone to move the road. What I need to know is do we move the road or do
we not move the road and that's the first thing that I have to know. So
that has a bearing on Lots 1 thru 3. To maintain their lot sizes, their
lot lines would be different if we moved the road versus if we didn't move
the road so as we work around, then we get into Lot 4 and the Fraser's lot
and the problem with Lot 5. When I first started to look at resolution of
this problem, the first thing that I wanted to see happen was that the
Fraser's were comfortable with their easterly lot line. Moving it where it
was moved, it was my opinion at the time that this is where they thought it
was originally except for the portion in the front where it turns and comes
toward the new road. But it was shaped that way to put it where they
originally thought it was. I think part of the problem is the
orientation. They didn't really understand I don't think that this is how
their house would face either until it got built. I think part of that is
the road and then part of that is just they're not understanding. But as
we look to resolution or as you make your decision here, there's 3
different reconm~endations that the staff has outlined. As far as I'm
concerend, I'm just looking for resolution because I've got to get on with
my program here. I would ask though if when you consider Lot 5, with Lot
5, if you leave it a lot and we don't, like Joel says, we don't exceed the
overall density. What I told the Fraser's was that I couldn't sell that
lot and guarantee that someone would build their house where they wanted
it. I wouldn't say I wouldn't do it. I said I'd encourage it. I'd try to
Planning Commission Meeting
March 21, 1990 - Page 23
get them to build down low but I can't guarantee it because people have a
way of changing their mind after I sell them the lot so I just didn't want
to get involved in something I couldn't personally guarantee but there are
other adjoining land owners that could use Lot 5 also and it may have some
residual value. Be it to the Fraser's. Be it to the other adjoining land
owner, I would still like to see that portion marketable even if it's not
buildable. At leas% so there is some recovery cost and if that's the
solution that you come up with. I'm available for any questions. Thank
you.
Erhart: Okay, thanks Mr. Peterson. Any other input from the public? If
not is there a motion to close the public hearing.
Emmings moved, Ellson seconded to close the public hearing. Ail voted in
favor and the motion carried. The public hearing was closed.
Erhart: Okay, let's do something different this time. Let's start in the
middle. Annette, why don't you start? I bet you weren't ready for that.
Ellson: That's why I choose the center. I can always hear at least one
opinion before me. This reminded me of a nightmare when I read it in the
first time. Then I kind of read it over a few times. I can certainly feel
for the people on Lot 4 and I know that mistakes can happen and yes, they
have consequences when they do. What I'd like to see and maybe I should
ask the applicant if it's possible, I agree with Mr. Nelson I guess that...
Jim Peterson: Peterson.
Ellson: Peterson. One of those common names you know. But is that I'd
like to see some sort of compromise is possible. I don't like the idea of
absolutely turning that one into dust balls because of this mistake yet I'm
wondering if maybe the staff can answer, is it possible to put a
requirement that the house can only be built in this area and have it
marked. That this is a buildable lot only if the house is here and it
would be someplace toward the front and preferably on the right or
something like that. I don't know, do we have any jurisdiction over that
sort of thing?
Krauss: The City would not be in a position to do that. Ail they can do
is enforce our setback requirements which gives them a lot of latitude to
build wherever they wish. The owner could presumably put some covenants or
restrictions on the property that we would not be in a position to enforce
that may in fact do that but we couldn't guarantee it.
Ellson: I'm wondering, can we approve it asking that this covenant be
done? It sounds like yeah, you could ask it. It still doesn't have to be
done. They'll put it anywhere they want to and we have no...
Krauss: Theoretically you could I suppose but you're depending on a third
party that we have no control over to carry out an action and they might
never record the covenant. They might void it out the next day or whatever
and we don't have any recourse.
Planning Co~,ission Meeting
March 21, 1990
24
Erhart: If I could follow on that point. I guess I find it hard to
believe that someone coming in for a variance request that we can't ask for
that and get it.
Krauss: Mr. Chairman, you can ask but we can't enforce it.
Erhart: We don't have to provide the variance either so I mean it just
seems, just by practice that it could be.
Ellson: We'd get more for a variance because it's out of the ordinary
anyway.
Erhart: Yeah. Anyway, go ahead.
Ellson: I guess that's my concern. I'd like to see that it could be pulled
off or if necessary to people on both sides or at least a portion of it. I
don't want to see them build a house they way it's on that and for the same
reasons that they mentioned. I mean you don't buy a 2 1/2 acre lot so that
you have somebody next to you like you're living downtown. Nor would I
think the person building there probably would want that so I think it
wo,lld be hard to sell a house that's going to next to it either so I guess
if we can't control where the house would be, then what I would want to do
is. I don't know what is it that I'd want to do? If I want it allowed to
be sold but I don't want it allowed to be built. What do you do? If you
still plat it the way they want it but then you say unbuildable?
Krauss: Well what you would do in that case is plat it as an outlot which
we would have a problem with and our reco~endation would be to you that
that not be done. The reason being is that it has no purpose. This is a
lot that's not buildable under current and presumably future ordinances in
the City. What typically happens to those is that they're not maintained.
They become nuisances. They go tax forfeit. Frankly we don't care and
really don't have any authority to tell anybody how to dispose of that
piece of land except to the extent that Lot 4 has to be made whole. They
shouldn't have any setback variances of it's own. If there was a way that
the lot to the north was going to pick up some property, I mean there's
only 2 choices. There's only 2 lots that border the site. If it was
disposed in some manner that gave a share to each, we wouldn't have a
problem with that either. I guess the fundamental issue here though is the
City accepted a plat that on the face of it met all our standards. We had
no comprehension of the fact that when it was actually built it wouldn't.
We accept surveys and subdivision proposals on good faith that they're
prepared accurately and that they'll be developed accurately and in this
case it didn't work.
Ellson: Well that's my coF~,ent. I'm interested to see what the other
people have to say but I guess I'm fishing for a middle ground. Not easy
to get though.
Emmings: Now the replat, would the replat push the line that divides Lot 4
and 5 further away from the house that's on Lot 4?
Planning Commission Meeting
March 21, 1990 - Page 25
Krauss: Yes.
Emmings: So in a way, I'm not sure what's best for the folks in the house
on Lot 4. Nothing's real good but at least the replat gives them a bigger
side yard than you'd have if we deny the replat. My first reaction to this
was that it's very simple, and I'm not so sure it is but we never would
have approved this lot at 2.2 acres. Ever. So I don't know why we want to
accept it now unless it does something maybe good for the people on Lot 4
and as to what ought to be done, it's easy. It ought to be fixed and the
folks who made the mistake ought to pay for it. That's what I do everyday
as an attorney and when I screw up, I have malpractice insurance and people
don't hesitate to come and get their money. And that's why I've got my
insurance for and I invite them to come and get it because that's what it's
there for. And that would certainly be my reaction to this if that house
wasn't sitting there on Lot 4. If it was just the road issue in there, I'd
say sorry Pioneer. Fix it. It's your fault. You've admitted fault. Fix
it at your own cost and get it done. But I don't really know if that's the
best thing for the house on Lot 4 and I could go with, I don't like the
replat except that it gives them a bigger sideyard. I could vote for a
plan to eliminate Lot 5 as a lot. If we did the replat, I'd just as soon
eliminate 5 as a lot but I do like, I kind of like the notion that Annette
brought up, I hadn't thought of it, was conditioning approval of the replat
on the house being built to the front of the lot. Are you telling us that
that absolutely, that we don't have the power to say...
Ellson: To enforce it.
Emmings: Put it on as a condition of the plat. That the house is built on
Lot 5 will, the front of it will be at the setback line or something like
that.
Krauss: We have no authority to enforce private covenants, if that's the
mechanism that's used.
E~,ings: No. It's not a private covenant. That's a condition on the
plat. You see it's interesting because on the map they gave us, that's
where they put the house. They put the pad right where we're saying we'd
like to see it.
Krauss: What they did there is they simply put conceptual pads at the
setback line.
E~ings: But they sure as hell meant us to think that that's where it was
going to be built and it was maybe a little misleading in that way but
I guess I'd be interested to know if you think you could sell that lot to
somebody. If that would be a reasonable place to put a house on that lot.
It would be attractive to a purchaser.
Jim Peterson: I don't think it's the first site. I'm not always, whenever
I look at a site, it's not... The reason we put that house there was not
to mislead you but to lead the buyer and as I told the Fraser's, I'll do
everything in my power to get that person to build...but when I put a
covenant on the lot which I can do, enforcement still remains the problem.
Planning Co~-~,ission Meeting
March 21, 1990 - Page 26
The...and let's say they say okay, we'll buy the lot and the covenants
there. The ordinance says...
Emmings: But maybe we could catch it when they come in for the permit.
Jim Peterson: ...but I don't know that I can honestly guarantee.
E~tings: Oh, no. I'm not asking you to guarantee it. I guess I'd like to
know...
Jim Peterson: ...it's really hard for me to guarantee that.
E~ings: Okay. We're not asking you to guarantee anything. Can we put a
condition on the plat? I guess I'd like a yes or no answer. Can we put a
condition on the plat as to where that pad will be?
Krauss: I don't believe you can. You're creating a condition that's
applied to no other lot in the city.
Ellson: That's because of a variance. We can ask for all kinds of things
on those can't we?
Krauss: Well that's true but getting in the mind set of exchanging
something for a variance is not necessarily an ideal place to be.
Emmings: Well yeah and that's a good point because under our standards
right now there is no hardship here and we shouldn't be granting a
variance.
Krauss: Now there is a possibility. Jo Ann and I were talking about it,
that you could do something like require the platting of a conservation
easement over part. You know over the back, north part of~the lot that
would prevent any construction and we have control over it. As you crowd
that lot through to the front, there is a drainage pond on the corner there
that precludes building real close. It's outside the setback line but
their yard, their front yard in essence would slope down into a pond that
had water in it when I was out there a couple days ago.
Emmings: It seems to me if he thought that he could find a buyer for the
lot with the house to the front and the house to the front would satisfy
the people on Lot 4, then maybe I could swing with the replat. Otherwise
I'm opposed to it.
Erhart: Okay, thanks Steve. Joan?
Ahrens: I think that's a sensible solution but Steve are you saying that
you would reco~,end approval of a lot size of 2.2 acres then?
Emmings: No, and there's no grounds for a variance and I would never go
along with it except it might be the best thing for the people on Lot 4.
That's the thing that really, like I say, to me this is simple. You make
Pioneer fix it but that doesn't really help the people on Lot 4 because it
winds up bringing their lot line in closer to their house. That I don't
Planning Co~ission Meeting
March 21, 1990 - Page 27
think is real fair to them so that's my hang-up on this.
Ahrens: So in order to comply with a variance ordinance, we'd have to see
that there...
E~-~tings: We can't.
Ahrens: We can't do it right. Well if we can't do it because there's no
hardship, what's the discussion about?
Emmings: That's a good literal application. The trouble is it hurts those
folks.
Ahrens: You know it bothers me also but I mean somehow we 'do have
ordinances and we are supposed to be interrupting those and making
decisions based on our ordinance otherwise we can change the ordinance.
E~tings: It's cold but true.
Erhart: Sometimes the human comes out on us. Paul?
Krauss: Mr. Chairman, one thing we did not look into that theoretically I
suppose could be investigated is the possibility of the developer stealing
a little bit of land if you will from the lot that's to the north of Lot 5.
Erhart: He stole my idea.
Krauss: If they have sufficient area and I'm. aware if they do or not.
Erhart: It would appear, if you look at it, it appears...
Wildermuth: That doesn't resolve the homeowner's problem.
Krauss: You would still go through the replat so that Lot 4 would be in
compliance with the ordinance. It may not resolve the owner on Lot 4's
concern about the placement of the house.
Wildermuth: There is an interesting option that does resolve the
homeowner's problem though. The question who would pay and that's to move
the house.
Ahrens: I thought of that too.
Wildermuth: You'd still have to replat but you could replat without a
variance. Without the requirement for a variance.
Ahrens: I mean even if there's a variance and there's a house built
towards the front of the lot on Lot 5, they're still not happy with where
their house is because it faces the rest of the development.
EF~ings: That's their claim against these folks. I don't know, maybe we
shouldn't be getting into this.
Planning Commission Meeting
March 21, 1990 - Page 28
Wildermuth: Yeah, but they're not happy with the way their house is
situated in relationship to the lot line at the present and potentially in
the future is because the cul-de-sac got shifted to the extent that it did.
But even if the cul-de-sac didn't get shifted, their house is not in a very
good position any way you look at it. For whatever reason.
Erhart: Joan, do you have anything more?
Ahrens: I guess I can't go along with the staff recommendation on this. I
can't go along with any of these. I would like to see a solution of the
problem. I mean I think there is a big problem here. I'd like to see the
Lot 5 sold so the developer can make some money off of it. I'd like to see
the people, the Fraser's satisfied but I don't know how we can approve a
variance when our ordinance doesn't allow us to.
~mings: So you agree with the staff recommendation?
Ahrens: Is that what?
Emmings: They're saying to deny it.
Ahrens: Oh, okay. I agree with you. Brilliant.
Erhart: Are you done Joan? Jim?
Wildermuth: I think it's been said several times before. There's no basis
for a variance here but the one attractive resolution, maintaining 5 lots
is still to move the existing house. Failing that, then the second
alternative discussed in the staff report is probably the way to go.
Costly for the developer because it would eliminate one lot but it would
certainly eliminate the problem with the position of the house in
relationship to the lot lines.
Erhart: Okay, thanks Jim. I am not in favor of not making Lot 5 buildable
because it would be a waste of land. I think you know that I think 2 1/2
acre lots are already in my opinion a tremendous waste of land and to make
a 4.7 acre lot is even a bigger waste of land. It would prevent a
potential citizen of Chanhassen moving in. Prevent us for collecting taxes
on that lot which you pointed out Paul. Creating that lot has, the request
to replat has no adverse affect on the environment. It has only adverse
affect on the Fraser's as far as the way the subdivision would be laid out
and certainly moving the street doesn't make any sense at this point.
Regretful as the mistake is and I agree with Steve that quite frankly that
there is a substantial potential liability here that I don't think that the
City is in a position to try to reduce that liability. I think we're
purely try to address the issues I just listed. I'd like to see Lot 5
developed and to resolve it. My feeling then is, my reco~,endation would
be to approve the replat with the condition and recommend the variance with
the condition and only reco~,end a variance and the condition that the
house on Lot 5 would have to be built so that none of it would extend any
further north than an east/west line from the northeast corner of the
existing house or some other terminology that perhaps would be agreeable to
the Fraser's and to the staff to the same effect but I think that kind of
Planning Commission Meeting
March 21, 1990 - Page 29
sums it up. I think that was what Annette and Steve were kind of looking
at the same thing. Paul?
Krauss: Mr. Chairman, if that resolution were to be supported, I guess we
would ask that you consider continuing the item to let us get a reading
from our City Attorney as to what mechanism we might use to guarantee that
%he home is where you expec% i% %o be.
Erhart: Okay.
~m~ings: Tim, how do you justify granting a variance?
Erhart: Well I think if you look at my 3 years history on here, I think
I've reco~tended variances in cases other than pure hardships. I think my
personal feeling is that sometimes and given precedent. Given that you're
dealing with precedence, still sometimes common sense prevails. That's
all I can answer. I think the adverse affects. I think little is gained
to anybody to deny the variance and there's a lot of adverse affects I
think on the City to deny the variance. So if that's common sense, than
that co~on sense prevails in my opinion.
Wildermuth: But we don't meet the test for a variance though.
Emmings: He's not saying we do.
Erhart: I'm not saying we do. That's why I'm not on the variance board.
I think that Paul's request is reasonable. Can I get some input from the
other commissioners?
Ellson: You say that in other words you'd like it tabled so you can look
at it or you'd like us to have more weeks between us and the Council to
take a look at it?
Krauss: Well either table it or direct, if you approved it, direct us to
get a reading from the City Attorney if (a) there is a mechanism that we
can use to guarantee that that condition is enforceable, and (b) if there
isn't, we can bring it back to you so you can take another look at it.
Erhart: I would prefer to have us vote on it and bring it back if you
can't enforce it. That'd be my preference. Steve?
~-~ings: The Fraser's. You understand what's being proposed here is that
we approve the replat but on the condition that any house going on Lot 5
would have to be built, could not be built rearward of your house. A line
drawn across the back of your house. What do you think of that?
Mr. Fraser: ...his lot is on the hill there.
E~m, ings: Well nothing can be guaranteed. Let's not talk about...
Delores Fraser: I feel that Pioneer Engineering who made all this happen
is kind of getting away with...and we're the ones paying the price.
Planning Commission Meeting
March 21, 1990 - Page 30
~m~ings: But you understand that if we deny it, that that lot. The road
may be moved and that lot will be sold and someone will still build back on
that hill. Do you understand that?
Mr. Fraser: At that point we'd be forced to literally sell our house
because our angle of our...
Ellson: Right, so this option might be better for you.
E~ings: Well now, that's up to them.
Mr. Fraser: We would be so far off that road...
E~mtings: Alright. Thank you.
Krauss: If I could add too. This is a little bit, this is really unusual
and I really need to sit down with the City Attorney and find out what sort
of legal recourse the City has because we did not get the subdivision we
bought. You normally expect a registered survey to be accurate. That's
the whole point behind state registration. In this case, it was not. In
my opinion, this lot is not a buildable lot as it sits right now. We would
have to, I believe would take some action through our City Attorney to make
sure that that lot is not marketed in it's present shape because it is not
a legally conforming lot.
Erhart: But aren't they saying that? I mean aren't they coming back in
with this application admitting that it's not sellable unless...
Krauss: This is true but if we deny the application tonight, what happens
then? The situation could exist until possibly there's some sort of a
civil suit brought by one of the developer or the homeowner against the
engineer. I think the City has a stake in this too and our stake is that
we approved a lot that met all our standards and we did what we were
supposed to do. We didn't get that lot.
Erhart: I understand but that's one of the options that the Commission has
here tonight is to deny it in which case you're exactly right. Then you
have another whole set of issues to deal with.
Krauss: We need to take some action, right.
Erhart: And if the potential exists that we could resolve it here tonight
given. The potential exists here we could maybe resolve it tonight and not
be an issue.
Ahrens: Let me ask a question. There is, Paul just stated earlier that
there was a lot of standing water out on that lot during the last rain.
I'd like to ask, whoever can answer this question, is this lot even
buildable in the front of the lot? I mean is that even an option? The
developer, I don't know Paul?
Krauss: There's quite a bit of property there and what you have is you
have a storm water pond basically. It's fairly well defined. It's down
Planning Commission Meeting
March 21, 1990- Page 31
near the street intersection and the land rises rapidly above that. It's a
well defined pond. It may not be something ideally you'd want in your
front yard, especially if the home were pushed towards it but you could
build around it.
Ahrens: So if we required that a house be placed in the front of this lot,
are we in essence creating a situation where there's never going to be a
house built there anyway because nobody would want their house standing
above a pond?
Krauss: Well if you draw a line someplace through here. If you draw a
line across the back corner of the home that's being constructed, you still
have a fairly sizeable area. Just scaled it off and it's somewhere around
100 to 150 feet depending on where it is. That should be large enough to
accommodate most any home.
Erhart: Anything else?
Ellson: I have a question. You're saying that if we approve anything
versus deny it, then the City doesn't have as much ground to stand on if we
wanted to go into, you're kind of talking along that line? Is that where
I'm getting that? In other words, it might be better for us to deny it.
Pass it along to City Council with all our wonderful Minutes on what our
concerns were and then if indeed we chose later through our own city, we
could do something like that. Yet if on the City record there were city
leaders that said that's fine. We'll move it. Then we have less ground to
stand on ourselves if we wanted to look at something like that? Is that
what you're talking about? In other words, you didn't get what we paid for
but if we're accepting it, then you are getting what we paid for? You sort
of confused me when you talk about that.
Krauss: We recommended denial because we didn't see the hardship. It was
self created and there was no neighborhood standard that supported it or
any of the other typical measures we use for a hardship. In thinking about
it this evening and talking with Jo Ann, it occurred to me that if the plat
is denied and everybody leaves here tonight, the problem's still not
resolved.
Emmings: You've got the drainfield for one thing.
Krauss: Well clearly you have that. Now presumably and this is a guess. I
mean there would be some civil action amongst some of the 3 parties that
are out there tonight to rectify that but that doesn't deal with the City's
issues and I would assume that we would have to ask our City Attorney, or
the City Council would have to direct him to take some action. And I don't
know what that might be because I've never seen this before. To revoke the
plat or to make this thing whole again because the plat that we approved is
not the plat that's on the ground.
Erhart: This isn't the first time that somebody's come in and asked for a
replat in the middle, after the fact.
Olsen: But not with variances.
Planning Co~m, ission Meeting
March 21, 1990 - Page 32
Krauss: Well in fact the Ersbo Addition is coming back to the City Council
next week.
Ahrens: For variances?
Krauss: No. They found, remember there's a cul-de-sac in the Ersbo
subdivision and that we wanted that to align with I think it was Arlington
Court to the north. They tried to backtrack through the surveys and when
they were actually out there staking lot corners, they realized that
Arlington Court was 30 feet west of where they had shown it. Now in that
case they were able to rectify the situation without causing any new
variances which we're recommending that the City Council approve, or going
to when it comes before them. If this didn't have any variances attached,
we would do the same here but that's not the case.
Erhart: Does anybody want to make a motion?
Ahrens: Me? Which one are we working on here now?
Erhart: Staff is reco~,ending simply to deny it.
Ahrens: Yes, I see it. I move that the Planning Commission approve the
staff reco~-~,endation here that states that the request to replat Lake Riley
Woods 3rd Addition be denied due to the lot area variance that results
on Lot 5.
Erhart: Is there a second?
Wildermuth: I'll second it.
Ahrens moved, Wildermuth seconded that the Planning Co~m~ission recommend
denial of the request to replat Lake Riley Woods 3rd Addition due to the
lot area variance that results on Lot 5. All voted in favor except Ellson
and Erhart who opposed and the motion carried with a vote of 3 to 2.
Erhart: Annette, would you like to add anything already to the Minutes?
Ellson: I'd just like to try to see a compromise.
Erhart: Okay, thank you. I'll just basically refer to the points that
I mentioned earlier. Okay? Thank you for your co~,ents.
Jim Peterson: I'd just like to ask a question to make sure I understand
it. You recommit, end that the whole replat be denied right? Not just the
variance but the whole replat, street and all?
E~ ing s: Ye s.
Jim Peterson: Okay, for me that's major. I can move the street back...
Planning Co~mtission Meeting
March 21, 1990 - Page 33
Erhart: Excuse me, I failed to explain what happens here. This will .go to
the City Council on April 9th, unless you request that it be delayed at
which point I believe you can come up with alternatives and resubmit the
application. Is that right?
Krauss: That's correct Mr. Chairman. The application could be resubmitted
again for your hearing. In fact, for example if this were resubmitted with
Lot 5 being parceled up somehow, without there being any variance, I'm
pretty confident that staff would reco~tend aPproval of the street in the
current location since it doesn't seem to harm anything else.
Erhart: You're suggesting finding another .3 acres someplace and adding
it?
Krauss: Or lacking that, eliminate it and come in with a plat that has no
variances.
Erhart: I think with a 3-2 vote, I think what that says is that, if you
could do some more work on it perhaps and solve some of the problems that
some of the co~'~issioners have, you could avoid going to the Council with a
denial reco~,endation.
Emmings: And you understand our action isn't final. It's only a
reco~m, endation to the City Council.
Jim Peterson: Yeah. No, I understand that but that's the worse possible
solution...not necessarily for me.
Emmings: Well what is? That's what he asked for so it may be the worse
for him in your mind. It kind of is in my mind but he seems to be
satisfied.
Mr. Fraser: My point was, what I was looking for was what staff had
r econo, ended.
Emmings: That is what the Staff recommended.
Mr. Fraser: But then they said...
Ellson: No, option 3 is the one that we opted for.
Mr. Fraser: ...lots 4 and 5 together?
Krauss: We don't have the authority to order that. I am going to ask the
City Attorney though to tell us what our opportunities are to resolve this.
Now maybe there is a mechanism where we can force the replat and a
resolution somehow in that manner but I frankly don't know. I've never seen
this before.
Wildermuth: Probably the least expensive way out is to move the existing
house and replat without any variances and still retain the 5.lots. And
that would make Mr. Fraser happy.
Planning Co~,ission Meeting
March 21, 1990 - Page 34
Erhart: Thank you very much for coming. I hope we can resolve that one.
That's very unfortunate.
PUBLIC HEARING:
ZONING ORDINANCE AMENDMENT TO AMEND THE SUBDIVISION AND ZONING ORDINANCE TO
REQUIRE THE POSTING OF PUBLIC INFORMATION SIGNS FOR NEW DEVELOPMENTS WITHIN
THE CITY.
Erhart: Is there anybody who would like the staff report on this?
Apparently not. Is there anybody in the audience that would like a
report? If not, then we will not have the repo~t. Is there anybody in the
audience that would like to co~,ent on the proposal to change the
ordinance? If not, I would request a motion to close the public hearing.
Ellson moved, Ahrens seconded to close the public hearing. Ail voted in
favor and the motion carried. The public hearing was closed.
Wildermuth: And I move that the Planning CoFmtission adopt the draft
ordinance.
Erhart: We have to have some discussion. Does anybody have any
discussion? Anybody on the Planning Co~ission?
~,mings: I guess I'd like to know, the only thing that concerned me about
this was the cost. The $100.00 rental fee with a $100.00 deposit and that
really seems, it doesn't seem like a big deal to a developer. What is the
smallest development that this would apply to?
Krauss: The platting of 4 lots.
Emmings: I guess then it doesn't bother me too much. I know that in
Minneapolis I went through a variance proceeding when I lived there and
they gave, I think they gave us the signs and they were kind of flimsy
cardboard signs that disappeared after the first rain but you didn't need
to have them up very long and they were bright orange the whole idea was to
bring attention to the property in a quick and cheap way so that the
neighbors knew something was going on. But I didn't think that was a bad
system. But as long as this doesn't affect something that's very small,
I guess that doesn't bother me.
Erhart: Any other comments from other commissioners? I have a question.
Why did Eden Prairie phase out their program?
Krauss: It wasn't clear. Sharmin talked to them. It sounded like some of
their signs disappeared and they just decided it wasn't all that important.
I don't know. In my experience, I worked in a community that had a sign
program and it was not only very effective but it was something that the
City Council was very supportive of because it did get the word out
effectively. Once you start something like that, it's kind of hard to
believe you could stop it but apparently Eden Prairie did.
Planning Co~-~ission Meeting
Ma~ch 21, 1990 -Page 35
Ahrens: Notification of the public is a hard thing to be against.
E~,ings: Yeah. I think we should try it.
Erhart: I think it's good too. I think it is going to put a burden on the
City that's going to be such a detail in that they tend to fall in cracks
and I'm sure that's what happened in Eden Prairie but with that, would
someone like to make a motion?
Wildermuth: I'll move that the Planning Co~,ission reco~,end approval of
the draft ordinance.
Ahrens: I'll second it.
Wildermuth moved, Ahrens seconded that the Planning Commission recommend
approval of the Zoning and Subdivision Ordinance Amendments Pertainng to
Requiring the Posting of Development Notification Signs. All voted in
favor and the motion carried.
PUBLIC HEARING:
ZONING ORDINANCE AMENDMENT TO AMEND ARTICLE II, SECTIONS 20-56 THROUGH
20-70 PERTAINING TO PROCEDURES FOR THE ISSUANCE OF VARIANCES.
Paul Krauss presented the staff report on this item. vice Chairman Erhart
called the public hearing to order.
~mings moved, Ellson seconded to close the public hearing. Ail voted in
favor and the motion carried. The public hearing was closed.
Erhart: Alright, Joan do you have any questions?
Ahrens: Not right now.
Emmings: I've got one I'd like to ask. Let's say you're in a place where,
a neighborhood that's got 70 foot lots with lake frontage or whatever-and
they are substandard lots. Not only for their width but for their area.
Let's say somebody lived in there but had bought two lots and built a
house. Could they tear their house down, subdivide those lots and build
two houses? You see what I'm saying?
Krauss: Well what you want to avoid I think, and I think what you're
getting at Steve is that you don't want to lower the standard in the
neighborhood. You don't want the lowest common denominator be what is
enforced. The intent of this, and I hope the language does it, is to
establish the neighborhood average and then say, if you meet or beat that
average, we'll probably reco~end that it be approved. So there's a middle
ground if you will.
Emmings: But would you be able to say no to someone who wanted to do what
I just...
Planning Commission Meeting
March 21, 1990 - Page 36
Ahrens: That would be meeting the standard.
Wildermuth: Paul, I like your redraft of the ordinance criteria until you
brought up the Carver Beach. It seems that somebody that wanted to create
an other 7,000 square foot lot, we ought to be in favor of that.
Emmings: Yeah, I don't have any trouble with someone coming in to an area
where everything is substandard but there is a neighborhood standard and
doing something on their lot that everybody else has there. So~Lehow that
doesn't seem that bad to me but the abuse in that, or the limit on that
I guess to me would be I don't want you creating more of it. I don't want
you to take the house off the two substandard lots and build two houses on
two substandard lots.
Wildermuth: That's what I'd be concerned about.
E~m, ings: And I wonder if this protects us or, I'm not even sure if one of
those lots was even empty that I'd want to see a house put on that lot
which is kind of what we had on that one lot on Riley lake that they tried
to make a beachlot out of and we wouldn't let them. We say you can't build
a house on there because it's too small and maybe I'm confusing my facts
but it would seem to me that maybe even you wouldn't want to have another
house built on that if it was real substandard. If you couldn't fit it in
with, so I don't know. I'm generally in favor of what you're doing. I
think that we should not send variances required by a site plan for example
to the Board. I think those should be dealt with here and at the City
Council. I'm generally in favor 'of this. The only thing is I don't want
this to go too far to create more substandard stuff. Do you think that
that could be prevented under the language that you've got in this?
Krauss: As we discuss it, I know the intent here is to do what I said
earlier that we would establish a neighborhood average and say if you meet
it or beat it you're entitled basically.
E~m~ings: Is that expressed?
Krauss: No it isn't and I'm looking at that. I mean that was the intent
when Roger came in and said reasonable ,]se includes a majority of property
within 500 feet. Majority to me means average. Now we could further
clarify that to state that...
~,mings: What about putting in an intent statement that says, it is not
the intent of this ordinance to allow a proliferation of substandard lots
or development but rather to recognize that some neighborhoods have
standards and as long as the applicant for the variance, I don't know.
Finish it. Meets that standard or exceeds it.
Krauss: We can clarify that way I'm sure.
E~'~'~ings: But an intent statement maybe at the beginning would put a bottom
or put a floor on this thing so you're not seeing all kinds of things here
that we don't want to see.
Planning Commission Meeting
March 21, 1990 - Page 37
Erhart: Sure. I think the term, the word district and the last word in A,
that's the one that's questionable to me. District can mean a big area. I
think what I hear you saying, you keep using the word neighborhood. To me
those are terms that mean two different things.
Krauss: Yeah, and that's why we established a 500 foot criteria.
Erhart: Okay, I'm missing that.
Emmings: The ordinance. Don't look at the staff notes. Look at the
ordinance itself. It may be in there but I don't know where.
Ahrens: Not in the proposed ordinance.
Emmings: But look in the ordinance itself. The language is different than
what's in the staff report than what's in the ordinance.
Erhart: Oh, is that right?
E~m~ings: Because I looked for some stuff too...
Ahrens: Yes, 500 feet is in here. 20-58(a) .
Krauss: I think it's real important that you establish some sort of a
criteria like that. 500 may be arbitrary but you don't, you know everybody
comes to us when they want a variance and they say well I know Joe Schmoe 3
blocks away from here has got the identical situation so I'm entitled to
it. Well no you're not. I mean that's a one off situation. If everybody
in the neighborhood had it, maybe you are but otherwise not.
E~,ings: If you apply for a variance, do you have to present a property
list?
Krauss: Yes.
Emmings: Is that a 500 foot?
Krauss: Yes. That's why it matches.
E~ings: So that kind of fits.
Erhart: Okay, and so the only change, procedurally the only change you're
making is that, in the first place ultimate authority here on all variances
today is the Variance Board. That's not a recommendation to the City
Council. That's final.
Krauss: Well there's been a lot of discussion on that but by State law,
yes. The Board is a quasi-judicial body.
Erhart: Alright. So the only change here, yOu're talking about
subdivisions?
Planning Commission Meeting
Mar. ch 21, 1990 - Page 38
Krauss: Subdivisions. Rezonings. Site plans and I think CUP's when a
variance becomes apparent during those that you would make a reco~endation
on it and the Council would approve it.
E~,ings: Ultimately, now does the Board recoF~,end to the City Council too?
Krauss: No.
Emmings: They make the final decision?
Olsen: When there's a split vote.
Krauss: Right. And the City Council has taken to reviewing most of the
actions of the Board which...
Olsen: Right, that's been discussed. They bring it up for discussion that
same night.
Emmings: So you review your own decisions Jay? That's kind of neat.
Krauss: I think it's fair to say, I discussed a draft of this with the
Board at their last meeting and Willard and Carol have copies of the
ordinance. I think they're both concerned with the ordinance as currently
drafted. I will also in this process what we would plan on doing is
getting your reco~endation. Taking it to them for their reco~,endation
and then giving the whole package to the City Council.
E~,ings: Willard called me. He probably called everybody but, and I told
him I wished he could be here to tell us what he thought but he apparently
had a conflict. He said Carol was going to be here and she's not but
they'll have their input in the City Council.
Krauss: Yes.
Erhart: Well to me, conceptually it makes more sense on issues that we
deal with that there's a gradual process of approval working towards the
City Council as opposed to a gradual process working towards the City
Council with this all of a sudden this exception that can come in at the
end. That doesn't seem to make good sense.
E~m~ings: Like it's pointed out in the City Council Minutes too. This is
in fact is what we're doing at the present time. It's really, we've got a
defacto ordinance anyway. At least in terms of site plan variances and
things like that. We've been doing it all along ever since I've been here.
Erhart: Any other co~,ents or questions? Jim anything?
Wildermuth: I think basically it's good.
Erhart: Okay. If not, is there a motion?
E~ings: I'd like to move that the Planning Co~,ission recoF~end the City
Council adopt the ordinance but I'd like to see an intent section added
Planning Commission Meeting
March 21, 1990 - Page 39
along the lines that we discussed.
Ellson: I'll second it.
E~m~ings moved, Ellson seconded that the Planning Commission recommend
approval of Zoning Ordinance Amendmen% to amend Ar%icle II, Sections 20-56
through 20-70 pertaining to procedures for the issuance of variances with
the addition of an intent section. All voted in favor and the motion
carried.
Krauss: Mr. Chairman, I know Co~m~issioner Ahrens has a commitment to leave
at 10:00. I wondered if I could ask a question of the coF~ission prior to
that. We have tentatively scheduled another special work session meeting
for next Wednesday. I think there's a massive case of burn out happening
both at staff and Planning Co~ission level. We've got a lot of work ahead
of us to do and very limited time to do it and we're wondering how best to
resolve that. Now it occurred to me tonight, I mean we really have to get
the work through. I've got a very large packet to send out to you tomorrow
that has a lot of the sections being drafted up. The goals and policies
are in there and everything else. Rather than meet next Wednesday, would
you consider possibly meeting like for dinner before the next Planning
Commission meeting possibly so we can roll over from one to the other and
combine an evening? Is that an option?
E~m~ings: Meet earlier in 2 weeks rather than meeting...
Krauss: Well meet on a regular Planning Commission night. Skip next week.
Ahrens: I like that idea.
Ellson: I'd rather do that.
Erhart: Much better.
Wildermuth: I'll be gone next Wednesday.
Erhart: I will too.
Krauss: Would 5:30 be too early for everybody?
EF~,ings: Are you talking about meeting here for pizza?
Krauss: We'll meet here for pizza, subs, whatever.
E~ings: What's the menu?
Krauss: You want Chinese?
Erhart: Let's get to the core of the issue here.
Planning Commission Meeting
March 21, 1990 - Page 40
Krauss: We could do Chinese in fact but that will give us 2 hours to work
prior to going into the meeting.
Ahrens: That sounds fine with me.
Olsen: It's going to be kind of a long agenda though isn't it?
Krauss: Well, they're all getting longer now. That's not that bad.
EF~tings: Well don't put anything more on it.
Krauss: You've got the grading ordinance coming back. The mining.
Olsen: Can you meet as early as 5:30?
Krauss: We need about 2 hours to really do anything legitimate.
Erhart: It's okay with me.
E~,ings: I'll let you know tomorrow.
Ellson: I'd say you could get a majority if not everybody. At least try
to.
Ahrens: You'd probably get most people in here by quarter to 6:00.
E~ings: Did you talk to Ladd about this? I mean he has a real problem
with early meetings.
Krauss: No, I haven't. This occurred to me tonight.
Olsen: And Brian too.
Krauss: It's tough asking you to keep on meeting like that. We have to do
something.
Erhart: The frequency of the meetings is not making it. It's getting to
be very difficult.
Ellson: I think couldn't we make them more efficient?
E~m~ ing s: No.
Ellson: That last one where the public got all dragged out and those kinds
of things.
Erhart: It's hard.
Ellson: I know.
Krauss: I think that set the trend for what's going to be occurring more
and more.
Planning Commission Meeting
March 21, 1990- Page 41
Emmings: Like the good old days with all those little subdivisions. Ail
those big subdivisions.
Erhart: Well contact Ladd and basically indicate that we would prefer the
earlier meeting.
Ellson: If he can get there f_{ne. If he can't, we have lots. Maybe he
co~]ld send us his coF~,ents...
Erhart: Okay. Let's move along then.
(Joan Ahrens left the meeting at this point.)
PUBLIC HEARING:
ROBERTS AUTOMATIC PRODUCTS, INC., 5.725 ACRES OF PROPERTY ZONED IOP,
INDUSTRIAL OFFICE PARK AND LOCATED OFF OF LAKE DRIVE JUST EAST OF CR 17:
A. PRELIMINARY PLAT TO REPLAT LOT 3, BLOCK 2, CHANHASSEN LAKES BUSINESS
PARK 2ND ADDITION INTO TWO LOTS AND ONE OUTLOT.
B. SITE PLAN REVIEW FOR THE CONSTRUCTION OF A 48,200 SQUARE FOOT OFFICE/
MANUFACTURING FACILITY.
Public Present:
Name Address
David Hunt Opus Corporation
Jay Johnson
Sharmin A1-Jaff and Paul Krauss presented the staff report. Vice Chairman
Erhart called the public hearing to order.
David Hunt: Mr. Chairman, my name is David Hunt. I'm the project manager
with Opus Corporation. We concur with the staff report as was presented.
We'd like to make some clarifications. First one was as Paul has
indicated. The elevations that were shown by our architect do not indicate
clearly that the entire building will be of a texture pre-cast. Either a
racked finish or of a random red. It will all be painted so hopefully that
will satisfy the concerns there. Secondly we would like to go on record on
three items that were mentioned in the staff report. First of all,
Robert's Automatic Products will require some sort of a trash enclosure in
the vicinity of the dock area. We do plan on screening that in accordance
with the City ordinances. We will work that out with the staff. The
landscape easement that's indicated with the church property. We propose
that to be a temporary type easement. We are putting the trees there
primarily for the benefit of the church to remedy some of their concerns
with the views of the building. We will obtain a landscape easement to
place the trees there. We'll maintain the trees for the warranty period as
well as the period required for the landscape bond, whatever at which time
we would propose that the church take over the responsibility for
Planning Commission Meeting
Ma~ch 21, 1990 - Page 42
maintaining those plants as it is on their property and I believe the
church has, in talking with Mr. Robert's, agreed to do this. The third
thing mentioned in the staff report concerning the 30 inch oak tree that's
on the site. We do not plan on disturbing that tree at this time. We are
providing sufficient landscape material such that if the tree was removed
at this time, we would be providing the sufficient caliper inches on the
project. What we would propose is that we would be credited with that
landscaping so in the future when the tree is removed, no additional
requirements be placed on us. The tree will stay in place until expansion,
which is anticipated 8 to 10 years down the road and then if the tree is
still living there, it would be removed. Those are all the clarifications
we have.
Erhart: Okay, thanks Mr. Hunt. Is there any other input from the
public? Questions?
Jay Johnson: Jay Johnson, semi-public. I'd like to know about hazardous
waste at this site. It's a question that sometimes gets asked but it's not
in our ordinance that I just looked through but will a hazardous waste
permit be required? Will hazardous waste be stored and what type of toxic
or combustible, whatever materials are going to be used on the site? If
you can put that information together, I'd like to see it in the future.
I'm on the City Council.
David Hunt: Okay, that's no problem...
Jay Johnson: I always ask that question later so if I tell you now, you'll
be ready for it.
Erhart: Did you get your question answered?
Ellson: He's just saying be prepared because it will come up again.
Jay Johnson: Yeah, if I tell them now then in 2 weeks or whenever if I ask
the question they're already ready for it.
Erhart: Anything else? Is there a motion to close the public hearing?
E~m~ings moved, Wildermuth seconded to close the public hearing. Ail voted
in favor and the motion carried. The public hearing was closed.
Erhart: Who wants to start?
Wildermuth: I'll start. Is that provision that was discussed by Mr. Hunt
acceptable to the City regarding the oak tree?
Krauss: Commissioner Wildermuth, we don't have a mechanism in place to
forward credit the loss of a tree.
Wildermuth: Right. Isn't that a point that has to be addressed at the
time?
Planning Commission Meeting
March 21, 1990 - Page 43
Krauss: Yeah. What would happen when the addition came in, we would
invariably require landscaping be placed around that. In any case I would
more than likely exceed the 30 inches anyway and that would just be to
satisfy normal screening requirement. I don't see it as a major issue.
Wildermuth: I'd like to ask the applicant, are they planning on any
underground storage tanks for oil? How about above ground tanks for
cutting oil? Screw machine operations generally use cutting oil.
RAP Representative: Anything that we'd have would be inside.
Wildermuth: How about spent cutting oil disposal? Do you use a chip
ringer?
RAP Representative: Do we use a chip ringer, yes and we recover most of
the...
Wildermuth: So you won't have any disposal problems to speak of other than
chips? Did Opus build the Empak building?
Erhart: Anything else Jim?
Wildermuth: I really don't have any reservations about these requirements
and apparently you don't either. You didn't seem to take issue with them.
I'm a little bit concerned about what the building is going to look like
but I guess if the occupant is satisfied.
David Hunt: ...elevation showing what we're thinking of.
Wildermuth: Good. So the building's going to be located in a pretty
classy neighborhood as far as industrial buildings go.
David Hunt: It will be gray colored painted pre-cast with some red trim.
The windows and along the top. There will be additional, this wall will
not look like it's shown here. There will be an entrance door as well as
several additional windows that we added along that elevation. I would
call it a moderate...
Wildermuth: How large will the windows be?
David Hunt: These punch windows will be approximately 8 feet wide, 4 to 8
feet wide I believe by 4 to 6 feet high.
Wildermuth: And then the upper sketch.
David Hunt: This is two different renderings. Color renditions of what
could happen...
Wildermuth: That is the front entrance.
David Hunt: This is the front entrance. This is the building steps back
by here by the office portion. This is the main office. This same
treatment will carry around onto the east elevation on there as well as the
Planning Commission Meeting
March 21, 1990 - Page 44
west elevation on this side and across the...
E~,ings: Would the stuff on the rooftop be visible from this hill?
Wildermuth: It will probably be visible to the church but you have that
shrouded.
David Hunt: We're adding additional shrubery. As far as from the street,
the building sits up high enough that anything that is visible, it's
definitely going to be cut off. I mean you would see the...top 1 or 2 feet
of the screening...
E~tings: Yeah, and that's screened with the same material.
David Hunt: The pre-cast would probably be not appropriate. We're
thinking of something that drives material and would appear from a distance
to be a concrete type product. Given the appearance of a flat concrete...
~m~ings: I thought our report said it would be the same material.
David Hunt: Similar.
Krauss: It's similar.
Emmings: Is that alright with you or should we have a condition in here
that it should be approved?
Krauss: Well no. We supported the use of that sort of compatible type of
material. We think it's an improvement over the fencing.
Emmings: Okay, you' re satisfied. Okay.
Wildermuth: That's all I have.
Erhar t: Steve?
E~ings: It looks fine to me.
Ellson: I like it. I like it when people tell you, even though we're not
approving it, where the possible future expansion's going to be so we get a
feel for the site as a whole and I appreciate that in a plan. This is just
for my own interest because I like to know what's coming into Chanhassen
but you're right next door to Empak who runs all week long 3 shifts. What
kind of work hours do you have?
RAP Representative: The plant basically runs two 10 hour shifts 4 days a
week. Fridays are overtime and the office runs five 8 hour days.
Ellson: No, I think it looks good. Welcome.
Erhart: Okay. Isn't there some staff co~ent about landscaping on the
north side of the building?
Planning Co~-~tission Meeting
March 21, 1990 - Page 45
Krauss: What we made reference to is that we would have liked to be able
to have the flexibility to do some landscaping up there. However, there's
utility easements that preclude that and as we looked at the site more in
depth, we looked at the site from difference vantage points. It's not
right next to TH 5. The area with the easements is that basically blank
area north of the building. Sharmin if you have an overall map of the
area, it's displaced by the railroad tracks and that embankment helps to
screen it further. What we really want to get away from is, I hope they
take no offense but the buildings where as you pass by on TH 5 all you see
is a sea of rooftop equipment. I don't think that's going to be the case
here and as you can see, what's happening is this traffic as it comes up
and over TH 5 is tailing away from the site. You've got the railway
embankment and this is quite a bit lower. I can't tell you that you won't
see it all but it's going to be pretty obscure.
Erhart: But the ordinance requires that they have to plant a tree every 40
feet on that property line doesn't it?
Krauss: But it doesn't say where you have to plant it. What we do is we
take those trees and we distribute it to the areas that we feel are the
most appropriate.
Erhart: That's what you did here?
Krauss: Yeah. They meet that requirement.
Erhart: By distributing the trees they would have had up there?
Krauss: Yes. We would never reco~,end that we arbitrarily put a tree
every 40 feet. That's just one mechanism in getting enough trees to do the
job correctly.
Erhart: I never thought of the ordinance that way. Not that I disagree
with the concept. Anyway, and the applicant is acceptable to the idea of
requiring, did you say 10 foot spruce?
David Hunt: ...some of the 6 to 8 foot...rather than adding additional
trees?
Krauss: Well there were some additional trees requested as well. We
didn't come up with a number. What we're looking for is these trees to be
increased and that these trees be increased in height and several more of
them placed back in here.
RAP Representative: ...the top of that berm...
Krauss: Well to the extent there is something here but it's quite nominal.
RAP Representative: 2 to 3 feet.
Krauss: There's like 6 loading docks?
RAP Representative: There will be 3 loading docks with drive in doors.
Planning Commission Meeting
March 21, 1990 - Page 46
Erhart: Well I just wanted to point out when you start getting into the 10
foot spruce trees, the price over a 6 foot tree is more than twice and it's
great. I just want to make sure that we try to treat everybody the same in
going forward. Obviously 10 is better than 6 and I think we have to have a
feel for consistency.
Krauss: We would be willing to look at a plan that mixes the sizes if it
accomplishes the goal. Fundamentally we don't think anybody should have to
look at truck loading dock from a public right-of-way and there are a lot
of situations in town where you do just that. There are more activist ways
of screening that. You can bring the building wall out beyond to screen
it. That's a relatively expensive proposition. I happen to think trees
look better but they needed some improvement for that screen to be
effective.
Erhart: You feel that is our policy to try to screen all loading docks
from the public right-of-way?
Krauss: Yeah. No question.
Erhart: And you feel the 10 foot tree here is needed to do that?
David Hunt: ...as you look at the elevations there, we are probably in the
neighborhood of 15 to 20 feet lower on the public right-of-way than you are
on that loading dock so if you're looking up from public right-of-way, a 6
foot tree, 6 to 8 foot as we're proposing,~ it's going to... I could agree
with the staff on that west side...
~mings: It may be a benefit to the City in having quantity and getting a
6 to 8 foot tree because presumably it won't stay that tall.
Krauss: Of course the trailer you're putting behind is quite a bit taller
than the tree. You know we're not opposed to working this out...driving
down Lake Drive. When you're right here, Lake Drive is dropping down. You
do have that issue, well that view when you're looking uphill and a 6 foot
tree may just do the trick there and if we could get a site perspective
that showed that.
Wildermuth: Is it just...and those trucks aren't going to be there that
long anyway are they?
Erhart: Another thing here. What ordinance do we have that prevents
somebody from cutting down an oak tree?
Krauss: We do have regulations that say when you cut down a tree you have
to replace the caliper inches.
Erhart: For a subdivider or individual lot owner?
Krauss: That's a site plan ordinance.
Wildermuth: I think it's for a developer.
Planning Co~,ission Meeting
March 21, 1990 - Page 47
Erhart: It's a developer not a lot owner and I guess I'd be opposed to any
tree ordinance that affected a lot owner.
Emmings: Me too.
Erhart: I mean you can't tell people they can't cut trees down.
Krauss: Oh, you mean you as an individual homeowner?
Erhart: Yeah.
Krauss: Well, actually that's one of the things on our work list is tree
ordinance.
Erhart: You haven't got our comments yet either. But from a developer I
think we agree. Just to ask Brian's question here. You're confident that
the additional runoff and the contaminants from the roof and so forth are,
we're adequately protecting the water that flows into the Lake Susan there
as well as we have on the roof on Empak? Essentially the same standards
are being applied?
Krauss: There's an overall drainage system that intercepts all that water.
There's a large wetland that's in front of the Rosemount facility that
would serve to filter the water before it's discharged into the lake.
That's one of the few areas in town that we actually have a comprehensive
storm water plan for.
Erhart: Okay, I really have no other issues. I think it's a reasonable
plan for the site. And again, also welcome this company. If there's no
other discussion, does someone want to attempt to make a motion here?
Wildermuth: I'll move that we reco~tend to approve Site Plan #90-3 and
Preliminary and Final Plat #90-2 as shown on the plat dated March 5, 1990
subject to the following conditions 1 thru 11.
Ellson: I'll second.
Erhart: Okay. Now the agenda here states that there's, essentially does
this one motion cover both the Preliminary Plat and the Site Plan?
E~'~,ings: Which is kind of unusual.
Krauss: Yeah, you should have both. We gave you one reco~endation but
yeah, it would be adviseable to have two separate motions.
Erhart: Would you prefer that?
Krauss: Then we'd have to disegregate the conditions I suppose.
E~,ings: We never combine two like this before but I don't know that you
can't. The trouble is there are conditions in here that relate just to the
plat and conditions that relate just to the site plan.
Planning Commission Meeting
March 21, 1990 - Page 48
Krauss: Right. Can we have a compromise. If you could approve it this
way, we'll disegregate it before it gets to the Council?
Erhart: If the attorney here is okay with that, it's fine with me.
Wildermuth ~oved, Ellson seconded that the Planning Co~tission reco~end
approve Site Plan #90-3 and Preliminary and Final Plat #90-2 as shown on
the plat dated March 5, 1990 subject to the following conditions:
1. Revise architectural plans so that exterior walls have textured
surfaces or exposed aggregate patterns. Provide information showing
location of trash storage on the site. Provide final details on
rooftop screening for approval by staff.
2. The applicant provide a detailed signage plan and apply for city
permits. Post stop signs on the driveway access to Lake Drive.
Provide details on site lighting for approval by city staff.
3. Revise the landscape plans as reco~,ended in the report to improve
screening of the truck loading area. Provide staff with a detailed
cost estimate of landscaping to be used in calculating the required
financial guarantees. These guarantees must be posted prior to
building permit issuance.
4. Revise the plat to designate Lot 3 as an outlot and provide an access
easement over the church driveway. An additional 25 foot wide drainage
and utility easement over the west side of Lot 1, Block 1 is required.
The Roberts Automatic site shall pay the required park dedication fee
at the time building permits are requested.
5. The applicant shall obtain and comply with all conditions of the
Watershed District permit.
6. The westerly driveway access shall be widened to 36 feet and the apron
area shall be concrete instead of bituminous. Revise internal
circulation as required to facilitate access by city fire equipment,
for approval by the City Fire Marshal.
7. The applicant shall enter into an agreement with the City to allow
construction of the parking lot and landscaping within the City's 25
foot drainage and utility easement on the west side of the property and
releasing the city from any restoration obligation for the parking lot
and landscaping in the event sewer repairs are necessary.
8. The applicant shall add additional catch basins to intercept storm
runoff before draining out onto Lake Drive and at the entrance to the
truck loading dock area. The storm sewer system shall be redesigned
for a 10 year storm frequency and revised drainage calculations
provided to the City. B-612 concrete curb and gutter shall be
constructed around all parking lots and driveways.
Planning Commission Meeting
March 21, 1990 - Page 49
9. Appropriate gas and power company permits shall be obtained prior to
grading within the utility easements along the north and east corner of
the site.
10. Type III erosion control shall be used along Lake Drive and added to
the northeast and east corner of the front parking lot. Straw bales
and silt fence shall be deployed to protect CB-2 from silt and
sediment. Wood fiber blankets shall be installed along the disturbed
side slopes in the northeast corner of the site. After sodding, the
erosion control shall be relocated to the sod/seed line. The southwest
corner of the site should be sodded to the north edge of the parking
lot.
11. No utility cuts shall be allowed to Lake Drive without the approval of
the City Engineer.
Ail voted in favor and the motion carried.
APPROVAL OF MINUTES: E~tings moved, Erhart seconded to approve the Minutes
of the Planning Co~m~ission meeting dated February 21, 1990 as presented.
All voted in favor except Wildermuth who abstained and the motion carried.
CITY COUNCIL UPDATE:
Krauss: I'm sorry, I realized I broke my streak and forgot to give you
one. I'm trying to remember what we did. I remember we were there quite
late.
Emmings: Well you broke your own streak. It's fairly typical over time
here.
Krauss: Hopefully it won't be now.
E~mtings: What happened?
Krauss: We had the private driveway ordinance on again I think for the
third time for final reading and it was continued again. Councilman Boyt
continues to have concerns about the possibility that the private driveway
mechanism would be used to avoid building a public street where public
street is in fact required. My own personal feeling is that the ordinance
is specifically designed to say that if there's a public street that we
think is required, you can't use it, the ordinance for it and we've
hopefully clarified some of the language. We've also added some language
that requires that the street be plowed and maintained so that emergency
vehicles are passable at all times or else the city can do the work and
assess the cost back to the property owner. That's rescheduled again for
Monday night and hopefully that will go through. The R-16 district
ordinance passed so that is now on the books.
~-~,ings: Is the beachlot one done? Did that get a second reading?
Planning Commission Meeting
March 21, 1990 - Page 50
Krauss: The beachlot one was done as well but that was several meetings
ago. In fact, they were very complimentary to you.
Emmings: I read the Minutes. Only one.
Erhart: You just can't take a compliment. Anything else? I just want to
emphasize how much we do appreciate those su~,aries. It's very, very
helpful to know wha% goes on so.
ONGOING ITEMS:
Erhart: Any of the commissioners have any comments on the ongoing item
list? Anything going on, are we actively pursuing the business fringe,
BF district thing?
Krauss: What we've done to date is I got an opinion from Roger on our
ability to rezone it back to agricultural. We really need to bring it back
in front of you. In fact I think the issue may come to a head. Peter Beck
from Larkin Hoffman has been delaying this celluar telephone tower that
they want to put in down there. Celluar Telephone, or telephone radio
antenna towers are allowed in the A-2 district as a conditional use.
They're not allowed in the BF district and the site where they feel their
computer program tells them they have to be is in the BF district and I
said well that, you want us to amend an ordinance that we may cancel in a
very short period of time anyway and I'm not sure how the Planning
Commission's going to proceed with that. We really need to schedule it for
your action. I don't think there's a whole lot of things to do with that
district. Either you make it agricultural or you don't. There's not a
whole lot of options in our ordinance. What else do you do except maybe
that existing use district which in that case you probably wouldn't want to
preserve.
Erhart: No, but there's some other areas there that might. I was thinking
about that after last week's meeting. As much as I think it's a very
dangerous ordinance for some areas along that...
E~ings: ...a landowner in southern Chanhassen.
Erhart: Yeah, the Minnesota Valley would be an appropriate place to look
at applying that kind of thing because it clearly, it is simply an area
that I think it warrants trying to preserve it in a real long period of
time and I don't, the question is, are you imposing a hardship on the
existing landowners down there and I don't think, I just don't ever see
that being developed there quite frankly.
E~ings: The issues isn't whether it's imposing a hardship. The issue is
whether it's a taking because you're taking away their development rights,
at least according to that article. It's not a taking to take away
development rights. I'm sure there are people that would argue that with
you but that was the point of the article.
Planning Commission Meeting
March 21, 1990 - Page 51
Krauss: The thing that it doesn't do down there which rezoning it to ag
would do, is make those uses that are offensive down there non-conforming.
Erhart: Anyway, yeah I would encourage that we move ahead on this one. I
think it's the item, other than the Comp Plan it is one item here that I
think we all agree on at this point and it's hot. It's a hot deal.
Anything else?
Emmings: Have you made any adminstrative approvals?
Krauss: Yeah. I did one and I said geez, I've got to tell you about it.
Now I don't remember what it was. Well, we've tinkered with the site plan
up at the HSZ site. Roger Zahn's. He changed some grading out there and
we required larger than approved trees to make up the difference. Except
he hasn't installed those either. But the one I was going to tell you
about I can't remember what it was.
E~-m, ings: I think you made some notes on it and you put them with the City
Council action.
Krauss: Yeah, probably.
Erhart: Any other issues anybody has to discuss? Anybody want to
adjourn?
Krauss: You had raised some questions about the contractor's yard.
Erhart: Yeah.
Krauss: Did you want to go into that or give us some direction for that?
Erhart: I'll just take a minute here. We spent a lot of time and I guess
at my prompting to move contractor's yards into the industrial zones. Then
less than a year later that was completed and then we came up with this
interim use thing that the State legislature allowed us which we all agreed
would give us an opportunity to do some better planning and to be more
liberal in terms of allowing uses on an interim basis. We reco~ended the
application of interim uses but when we passed it on to City Council we
didn't spell out which districts and what uses. No, we didn't assign uses
to districts and identify those as interim uses and we discussed that and
decided not to do that here. City Council felt that they wanted to do that
and so without any input from Planning Co~ission then, correct me if I'm
wrong but I think this is what it is, without any input from Planning
Co~-~,ission, they assigned the uses to districts.
Emmings: One of which was?
Erhart: One of them which was contractor's yards to my neighborhood again.
Krauss: If I could expand on that a little bit. You're right. The
ordinance that you first reviewed had very limited uses assigned by Roger
for the interim use ordinance and when it did get to City Council...
Planning Commission Meeting
March 21, 1990 - Page 52
Erhart: And this is a possibility I think. I think it was that. These
are some ideas.
Krauss: Well, no. The ordinance was drafted and it had 3 or 4 uses for
like the CBD district. A church and that kind of thing and when we got to
the City Co~lncil Bill Boyt asked that we go through all the conditional
uses and decide which should be interim and we did that. However, the
draft ordinance that the Planning Commission reco~tended approval of did
have contractor's yards in there as an interim use.
Erhart: But certainly not to any particular district.
Krauss: Yeah. I pulled out the old staff reports on that.
Emmings: I have a feeling that that seems familiar to me. If it was done,
it would have been done going along with the feeling a lot of people had
that the mom and pop contractor's yard when they've got a few machines and
they live there, that we were not really opposed to that, especially as an
interim ,]se.
Erhart: That's what I say. I'm not so adamantly opposed. If we can
really effectively put a cut-off date or some time on it where you can
actually end it, I'm not so opposed.
E~'~,ings: You have to.. To call it an interim use we have to do that.
Krauss: I wasn't aware of the history behind that. I didn't notice it.
Erhart: But I'll tell you, then it drives another thing. Then I think
what we ought to do since they aren't permitted in RR, then I think it's
important that we go back and do the other thing on here and that is to
relook at our map as it is today and designate the rural subdivisions as RR
because now you could put a contractor's yard in Riley Lakes Wood South or
whatever that is.
Emmings: Can't that be done as part of updating the map now and everything
else?
Krauss: Well no. You can't just unilaterally do it. You actually have to
go through rezoning action. Notify everybody and have a public hearing.
Erhart: I think we need to protect those neighborhoods from the ma and pa.
E~,ings: I think we should get going on that. I think that's a good thing
to do. If that's what they are.
Krauss: I guess I don't understand why when those subdivisions were
reviewed, rezoning wasn't processed concurrently. I never asked the
question.
Erhart: We probably went a year without a full time planning director that
a lot of things got dropped.
Planning Commission Meeting
Ma~ch 21, 1990 - Page 53
Emmings: I'll tell you. That was a hot and heavy time. We had meetings,
every meeting was 12:30-1:00 and we had subdivision after subdivision and
it was just a nightmare. It seemed to go on for a long time.
Erhart: So yes. I agree with Steve that that's one we should be moving
on. Particularly if someone can come in in a subdivision and now if they
can come in with a contractor's yard request. Although they still have to
have 5 acres but I think we've just got to do it. Anything else?
E~m~ings moved, Ellson seconded to adjourn the meeting. Ail voted in favor
and the motion carried. The meeting was adjourned at 10:30 p.m..
Submitted by Paul Krauss
Planning Director
Prepared by Nann Opheim