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4b. Non conforming use permit for Recreational beach lot for Trolls Glen II . , . ,. , CITYOF 412_ 10.4. 1 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 1 (612) 937 -1900 • FAX (612) 937 -5739 N 1 Mon by City AdministratdT MEMORANDUM EAdorse `� I Modifier' Rejected..,-..,_ - TO: Planning Commission Date....... ' - Date Submitted to Ccmmission I FROM: Kate Aanenson, Planner II Dete Submitted to Council 1 DATE: May 1, 1992 6 - 92-- SUBJ: Trolls Glen Non - Conforming Recreational Beaehlot BACKGROUND . The Trolls -Glen Homeowners 1st Addition and Cedar Crest Association have been in existence since 1975. A beachlot was created with this subdivision. The beachlot has 70 I feet of frontage with an area of 5,270 square feet. These dimensions do not meet the minimum requirements for a recreational beachlot which is 200 feet of shore line and 30,000 , square feet in area. I An inspection of this beachlot was done by the city in the 1981 survey, but based on a legal ty Y g action brought against the Association by John Merz and Terry Johnson, it was determined 1 by deposition that in 1981 there were two boats being docked and two boat lifts (see attached deposition). The homeowners association readily admits there were only 2 boats being docked in 1981, but they always had the right to 4 boats. They have stated that the 1 demand for docking 4 boats did not exist because all of the lots have not been developed. The city received a complaint in June of 1991, as to the number of boats at the association's I dock. At that time, the city had requested compliance with the two boats documented to . be existing in 1981. At subsequent meetings with the association, it was determined that I since the city was in the process of adopting the Non - conforming Recreational Beaehlot Ordinance, the city would hold off on taking action until we could take the association through this permit process. 1 The association is seeking approval of 2 boats to be docked and 2 boats to be moored. Since there was no inventory taken by the city in 1981, we are unable to provide information 1 about the length of the dock. The best information about the length of the dock is the z a PRINTED ON RECYCLED PAPER Planning Commission May 1, 1992 1 Page 2 ' survey taken in 1991, which showed a 60 foot dock. The legal deposition does not mention the length of the dock. There is not a boat launch, motor vehicle access, canoe rack or swimming raft at this beachlot. 1 PLANNING COMMISSION UPDATE On May 6, 1992, the Planning Commission held the public hearing for the recreational beachlot at Trolls Glen. The Planning Commission made the determination that in the summer of 1981, it appeared that there were only be two boats at the dock. They therefore made the determination that the association should be allowed two boats. In addition, they allowed the continued use of the 64 foot dock, one canoe rack, and swimming beach. SUMMARY ' The association is requesting the use of 4 boats to be docked. The association contends h q g that they have always had this right based on the fact that not all of the lots were developed in 1981, and the covenants permitted this many boats. The association is also requesting a dock of 64 feet in length and one canoe rack. 1 1 1 1 1 1 1 1 1 1 NON - CONFORMING RECREATIONAL BEACHLOT PERMIT ASSOCIATION P.C. CITY COUNCIL 1 REQUEST RECOMMEND ACTION Association Trolls Glen 1 Lake Minnewashta 1 Number of Homes 12 Size, square feet 5,270 I Shoreline 70' I Motor Vehicle Access not requested Off -Street Parking not requested Boat Launch not requested 1 Buildings not requested Picnic Tables not requested Grills /Campfires not requested 1 Seasonal Dock 64 feet 64 feet I Diagram Canoe Racks 1 1 I Boats on Land not requested Boats at Dock 4 2 1 Boats Moored not requested 1 Swimming Beach yes yes Marker Bouys not requested I Swimming Raft not requested 1 Miscellaneous Items requested by the Association for determination. II CITY OF CHANHASSEN 690 COULTER DRIVE II CHANHASSEN, is 55317 NON - CONFORMING RECREATIONAL BEACHLOT APPLICATION II HOMEOWNERS ASSOCIATION: TROLLS -GLEN HOMEOWNERS ASSOCIATION II CONTACT PERSON: Anne Cathcart or Bernie Schneider ADDRESS: 3895 Lone Cedar, Chaska, MN 55318 II P. 0. B Chanha sen MN 53 TELEPHONE (Day time) 47,,(8);919.03, TEL'EPHd Evening) : 474 -8902 Please provide all requested data consistent with what existed in II the summer of 1981. 1. Number of homes in the Homeowners Association 19 Of the 12 in the association 4 have homes on the lake. 2. Length of shoreland (fee tie _ q fear II 3. Total area of Beachlot (in square feet) • 5,270 square feet 4. Number of docks One II 6. Length of dock(s) 64 feet 7. Number of boats docked 2 boats 8. Number of canoe racks 1 1 9. Number of boats stored on canoe racks 0 10. Number of boats moored, i.e. canoes, paddle boats, I sailboats. 2 11. Number of boats on land None II 12. Swimming beach Yes x No Buoys Yes No A 13. Swimming Raft Yes No x 1 14. Boat Launch Yes No X 15. Motor vehicle access Yes No x II Number of parking spaces Nnnp 16. Structures, including portable chemical toilets: 11 None 1 1 I II RECREATIONAL BEACHLOT INVENTORY 1981 1986 1991 Trolls Glen 1 27 homes Lake Minnewashta II 3,000 sq. ft. 60' of shoreline II Motor Vehicle Access no no Off- Street Parking no no II Boat Launch • no no Permanent Buildings no no 1 Setbacks Temporary Buildings no no 1 Portable Restroom no no Picnic Tables no 1 1 Grills /Campfires 1 2 Seasonal Docks 1 1 Approximate Length 60' Canoe Racks no no 1 Boats on Land 1 1 fishing fishing II boat 2 boat canoes 1 sailboat Boats Moored no no II Boats Docked 4 speed 1 power boats boat II Swimming Beach yes Yes Marker Bouys no no 1 Swimming Raft • no no Comments: volley , II II • . 1 1 Ic.8, T. Ili;, R. 73 00 _ -- - -- • — 60.00 ., id. 70 6.99 OUT LOT: ''.8 Ilk 5.89 ° 15'56 ; i' , • o . 60.00 ^ \ '� 1 _J c� Q ...,,, O CD - Q c, , 1 .-4) • (t, O 0 a. I! .* 6) vs ?) . ta„,‘) ir \ I eh i t t ks \ \ D 57 � `�'o �^ a'�•� �� i t 5 \ L _ 60 , .'. , �� ,�' , ... 1111) . • • .• . ,- • , .4, "Zi. �- a ....... . . •\ ,. . • \ ..._ \ \\ 75 5° • .. titi s \ �. r • M r �. o o _ 0 39 . 14 G• Z 8 \\ Z �ti� . . 4 NB1 • c 4 gy p • - 1q,65 - �. , ti Q Y ^ ••• • - • • • + 10.0u. • ,, • - : - ...-, : ‘.- i0 • 00 • % - . \ - • �'pti 0 0 qm .. 0 1' • 1 ,.. • c• ; + o ; a ; c o i v • • • ♦ .s� _` v� .4 v..... . _ ,.; ,.., -. cq - • .. .. 1 _ .� — '\ , 6 ‘ r . • • G.,,,,,,, , ...,r,..... : -i 7 - ' X '- '.\- ".,7_;`';' -- -i1' 74-1 ::- -1 -.. '-fio°0 . ., .. • • O i /1 N D w J , 1 City of Chanhassen Chanhassen,MN March 30, 1992 1 The Troll's Glen Homeowner's Association has been in existence since the Covenants were approved and accepted by the City of Chanhassen in 1975. Members have abided by the Declaration of Covenants, Conditions, and Restrictions since that time and have also governed effectively by strictly following the Association By -Laws. As a corporation we have elected officers, 1 held annual and special meetings, kept minutes, and maintained general comp+ iar,ce under our declaration for over 15 years. r The attached documents chronicle important rulings regarding this boat docking issue. Of particular note is the Board of Director's meeting on I/ 6- 6-81. The docking of FOUR boats has been an Association ruling since then and was rea by a. majority vote on March 24, 1992. Therefore, at this time, we request a permit for mooring FOUR boats on our non - conforming 1 beachlot. If there is ever a demand for more boats, a request will be made at a later date and would never exceed seven. Our non- conforming beachlot may be unique in that we have had docking ' rights years before the city's imposed ordinance. If the city wishes to restrict the conditions of our covenants thus stripping all their merit, we , would want monetary compensation in lieu of decreased property values. Also we should point out that rendering our Covenants useless may present the city with a Troll's Glen Pandora's box. Property owners may feel justified to 1 build storage sheds, part: F:V's, and construct cyclone fencing. We take our Covenants seriously and have accepted them for better or for worse. In turn, we readily accept the privileges and rights attached therein. We hope that this permit application letter clarifies our position. Included 1 1 with our permit approval, we request an opinion by the city attorney on the merit of our Covenants in relation to city ordinances. ' ThM you for your consideration, President, Troll's b len Homeowner's Association 1 1 I 1 1 1 1 1 1 1 1 1 I/ 11 Troll's Glen Homeowner's Association supports a non - conforming beachlot ordinance requiring a permit for boat docking and a 1991 baseline. We feel, 1 however , that this ordinance allows for interpretation beyond the 'physical evidence" of record. Mooring rights are tied to each property owner's abstract through covenants sanctioned b> the city of Chanhassen in 1975. This also includes the right of the association to govern the use of its 70 foot beachlot. Since 1981 there has been a stipulation in our association minutes that there be a 64 foot dock for mooring four boats. We fail to see the logic that "physical evidence" take precedence over our association ruling. Troll's Glen addition has been developing steadily since 1975. In 1982, there were three vacant lots. These were homesteaded by 1991, thus ' reflecting the increased use of our dock from the "physical evidence" of two boats in 1982 to the "physical evidence" of four boats in 1991. Lots were marketed and purchased with a mooring right. We are sure that the use of our beachlot probably reflects the use of other non-conforming beachlots throughout the city. The 1991 boat baseline reflects B. more fair, equitable, and up -to -date use of these properties. If the goal of this ordinance is to decrease the number of boats on the lake, ma.•be a 1959 baseline should be a =_ -ed. In that case, an "ex post facto" ruling would warrant Troll s Glen and probably other small beachlots useless. The 1991 baseline ruling may increase the number of boats over the 1982 "physical evidence" but we feel that small increase will not be detrimental to the ecol c'QQ, of the lake or the safety of its residents. Mi nnewas•hta lake is still considered by most a fairly 1ci traffic lake. Best efforts to maintain the beauty and :.a.fet•: of our lake would be to enforce the dock setback ordinance and watch for miifoil. The setback ordinance will lawfully limit the n'Jmber of boats on these non - conforming beachlots. An otuicus effect of a 19 1 baseline with a few more boats will be an increase in property tax revenue. Mooring rights will increase market values of residences in our neighborhood at least 10 -12:.. One neighbor recently had his home aptraised at $150,000 and $168,000 with docking rights. We would want monetar compensation in lieu of decreased value to our property if our decking rights are not honored when applying for a permit. We are sure you are aware of the controversy in our neighborhood over the use of our beachlot. The neighbors bordering the association lot sued the association and certain individuals stating the beachlot was "dangerous, neglected, and a nuisance ". They wanted no boats. Our defense cost over $13,000 and the judge dismissed the case as not being in the court's I/ jurisdiction. It is finally up to the city council to rule on and interpret a new ordinance pertaining to non - conforming beachlots. It is our hope that the council will make a fair ruling and follow the city attorney and staff's recommendation for the 1991 baseline and permit proposal. Sincerely, 1 artyt., Cat President, Troll's. Glen Homeowner's Association 1 ' ITra -Glen Homeowners Assn. 1 ' dock w ith four boats in July, 1(:. I le i • ' iiiit t. o . '' ' ' %.,,. ... ?- ..' '..;', , ;•..,"," . q.... 1 . 1 "4 4 .,,ifi;•.--1.1:4:::Zy — . - 1r.:-. _' 1 . to � J • i •:a . . • 1 . 1 • "- i • 4 ItL .. �J:w^ ' � i , I �Y y ;.:.. i `- , ° 1 •4 t^ r . • I 4 a, t _7 ,. y t � .i • .. Y.. ■ S ,� ,N �..t ,r Y t • 4 • h r ..� 7 {� Lti { ; AVY, , y.,,,11;.. s t� i b ~ 'f) { .tf ::-. 7ti -t - ♦ l - y 6 +; . ' ''' , `-' �Ll \3 t . it r . • .- . ia.. r •-•'!•,..;:"...--.....,::: — T - . - -� fail SL ,� n II John Merz dock on the north side of the Trolls -Glen dock and the Terry Trolls -Glen property. July, 1991. Johnson dock and pontoon on the south side of the Trolls -Glen 1 property. July, 1991. i\. 1 TROLLS -GLEN HOMEOWNER'S ASSOCIATION '36 Ann Olson, Senior Planner Cl'`` “ s `, ' `( r City of Chanhassen __ ----- II 690 Coulter Drive Chanhassen, MN 55317 Dear Ms. Olson: II We acknowledge receipt of your letter of June 3, 1991, stating that we are in violation of tw boats were grandfathered Ordinance, in atothe your time tation thh t that only two p ordinance was adopted. Your letter states that if the power boats are not reduced to two within 10 days, the matter will be turned over to the City II Attorney's Office. We have a difference of opinion on what was grandfathered in at the time the II ordinance was adopted. According to the DECLARATIONS OF COVENANTS, CONDITIONS AND RESTRICTIONS of Trolls -Glen 1st Addition and Cedar Crest Lots 111 and 112, dated September 22, 1975 and approved by the City of Chanhassen, it states that all property owners in this subdivision shall have boat mooring rights II at Outlot B. I am enclosing a copy of the Declarations, Article X and XI. We are also enclosing a copy of the minutes of Trolls -Glen Homeowner's Assoc- iation DIRECTORS'MEETING of June 6, 1981 and also of February 27, 1984, whereby the directors approved mooring of 4 boats, with.annual approval for changes, if necessary It is called to your attention that John Mori, who submitted the Affidavit and complaint to your office, was a director II of the Association and made the motion to allow four boats at the dock. On June 4, 1990, Trolls - Glen Homeowner's Association received a SUMMONS by John Merz.and Terry Johnson praying for .an order of the court of Carver County as follows: • 1. Ordering that the present private dock owned'by Underdahl and Schneider be removed from Outlot B. 2. Ordering defendents Ferm and Cathcart to cease and desist their private (is( of Outlot B. 3. To permanently enjoining defendants Hudson .and Mecus from constructing im- provements.of..any sort on or adjoining Outlot B. 4. Permanently enjoining all further use of•Outlot B'by.individual members of the Association .unless and until said uses of or improvements to Outlot l; are ordered :by or approved :by the .Association after the .Association has coin; plied with all notice .and meeting requirements set forth.in the governing II documents. 5. For such other and further relief as may be deemed justly the court. On February 21, 1991, we were advised that John Merz filed for an injunction II preventing the Association from installing boat docks this season. On March 26, 1991, Judge Thomas R. Howe dismissed the suit in its entirety. II 1 • Jo Ann Olson page #2 The legal proceedings to this date have amounted to $13,470.90. Our Association board of directors is of the opinion that this latest action by John Merz and Terry Johnson is continuing harassment, involving con- siderable addtional costs. We request that the City of Chanhassen dismiss the Johnson -Merz complaint for the reasons stated earlier in this ' letter and restated here: The rights to moor a boat at Outlot B are listed as a Warranty on ' the Abstracts of Title to the property owners in Trolls -Glen 1st 'f Addition and Cedar Crest Lots #1 and #2. 2. The rights to moor a boat are part 'of the Declarations of Covenants II and Conditions of the Trolls -Glen subdivision, which were approved by the City of Chanhassen in 1975. • 3. John Merz was a director of Trolls -Glen HOmeowner's Association and ', -which approved the dock and mooring of four boats, (Director's meet- ings of June 6, 1981 and February 27, 1984. 4. It is the opinion of the directors of our Association that the rights given to each property owner, boat mooring, were not denied by the City Ordinance passed in 1985. ' 5. The boats moored at the Association dock have not created any hazard to any person wishing to use the beach lot. All persons using the boats are responsible individuals. We do not intend to remove any of the boats from the Association dock, II • as demanded in your letter of June 3, 1991. We request an early review of the Johnson -Merz actions so that the matter may be disposed of without further costs to the members of Trolls -Glen Homeowners'Association. • very truly yours, David Tester, President ' Daniel Hudson, Vice President Bernie Schneider, Secretary- Treasnry • cc: Don.Chmiel, Mayor Steven Lemmings, Chairman of the Planning Commission • • , June 10, 1991 1 The Honorable Don Chmeil, Mayor , City of Chanhassen 690 Coulter Drive Chanhassen, MN 55317 Dear Mayor Chmeil: Attached is the Trolls-Glen reply to Jo Ann Olson, Senior Planner, letter to our Association dated June 3, 1991. Her interpretation of the Recreational Beach Lot Ordinance as it applies to Trolls -Glen Outlot B, is not agreed to by the Board of Directors of the Trolls -Glen Homeowner's Association. The Trolls Glen subdivision was approved by the City of Chanhassen in 1975. Along with the approval, the Declarations of Covenants, Conditions and Restrictions, warranted that each property owner in the subdivision had boat mooring rights. We do not believe that the Recreational Beach Lot Ordinance passed by .the City of Chanhassen, some ten years later, applies to our subdivision. Each person purchasing a lot in our subdivision, purchased the lot with the warranty that boat mooring was available at Outlot B. This past year, two new homes were built and as a result, two additional boats were moored at the Association dock. John Merz and Terry Johnson, the persons filing the complaint, own the property abutting the Outlot B. They apparently do not with to have any property owners in our subdivision., using the boating privileges. John Metz and Terry Johnson started a lawsuit in June, 1990, through the Carver County Court system.The case was dismissed by Judge Thomas Howe in March of this year. We had asked for the Plaintiffs to be responsible for legal fees incurred (13,470.90) but the judge ruled that the Plaintiffs and Defendents pay their own legal fees. We won our defense but lost in . that all property owners are responsible for .over $1,100.O0.in.fees. In order to stop their continued actions, we request that you give this 1 matter your early attention. We do not wish to incur..any additional legal fees if we can avoid the retaining of an attorney.. We are willing to appear before a City Council or Planning Commision hearing at.any time to state our position in this matter. • • Very truly yours, ��]]� �-c - L� . l, t er . z,c(�- cc: Steven Emmings Bernie Schneider Planning Commision , Secretary - Trolls -Glen II January 15, 1992 TROLLS -GLEN HOMEOWNER'S ASSOCIATION RE: AN ORDINANCE AMMENDING CHAPTER 20 OF THE CHANHASSEN CITY CODE CONCERNING NON - CONFORMING BEACH LOTS i TO: CHANHASSEN PLANNING COMMISSION AND CHANHASSEN CITY COUNCIL ' FROM: TROLLS -GLEN HOMEOWNERS ASSOCIATION 1ST ADDITION AND CEDAR CREST LOTS 1 AND 2 The Trolls -Glen Homeowners Association is comprised of the following property owners as members of the Association: Lots 1 through 4, Block 1, First Addition 4 members ' Lots 1 through 4, Block 2, First Addition 4 members Lots 1 and 2„ Block 3, First Addition 2 members Cedar Crest Lots 1 and 2 2 members ' Of the twelve property owners belonging to the Association, five properties abut Lake Minnewashta, and therefore have no need for access to Lake Minne- washta in our Common Area, OUTLOT B. Several members have asked that they be allowed to withdraw from the Association. All of the properties have homes constructed and there will be no further ' additions to our Association and likewise no further demand for boat mooring at the Common Area Outlot B. All of the properties have as a part of their ABSTRACT OF TITLE, rights of ingress and egress to Outlot B of the Common Area and boat mooring rights. The following is a listing of these rights, as stated in the Declarations of Covenants, Conditions and Restrictions of the Trolls -Glen Homeowners Association: ARTICLE IV, Section 1, Property Rights in the Common Area. Members Easement of Enjoyment. Subject to the provisions of Section 3, every member shall have a right and easement of ingress and egress over the Common Area, and an ease- ' went of enjoyment in and to the Common Area, and such easement shall be appur- tenant to and shall pass with the title to every lot. ARTICLE X Restrictions on Common Area. No boats shall be launched from the Common Area. No recreational vehicles shall be allowed on the Common Area at anytime. Boat mooring in the Common Area shall be moored only in the area designated for mooring by the Association. Article XI Rules Established by Association. ' The Association shall have the authority to promulgate reasonable rules and regulations concerning the Common Area, including but not limited to providing garbage service including containers, providing weed control, providing for additional sand for the Common Area beach, establishing hours during which the Common Area may be used, providing hours during which the Common Area may be used for public gatherings, and providing regulations concerning the mooring of boats in the Common Area. 1 • PAGE 2 January 15, 1992 TROLLS -GLEN HOMEOWNERS ASSOCIATION 1 Chanhassen Planning Commission re Ordinance Amending Chapter 20, concerning Non - Conforming Beach Lots The above warranty applies to all of the property owners of our Association. The City of Chanhassen approved the Subdivision and the Declarations of Covenants, Conditions and Restrictions September 22, 1975. No restriction was placed on the number of boats to be allowed to moor at the Common Area dock. • At the June 6, 1981 Board of Directors meeting of Trolls -Glen, the directors 1 passed a resolution allowing the mooring of four boats at the Association dock. Not all of the properties in the Association had homes constructed on said lots, and therfore the four boat limitation was sufficent for the years 1981 to and including 1990. In 1991 four boats were moored at the Association dock. The fifth property owner had his boat lift abuting the dock, but he did not moor his boat at the dock. In the year 1992, we have requests for five boats to be moored at the dock and we request that the Chanhassen Planning Commission approve our request for five boats at this time, with the maximum permissable boats to be moored at one time be restricted to seven. Again, the right to moor a boat is part of our rights under our Warranty Deed to our property. If, in the opinion of our Board of Directors that seven boats would create a hazard, the Board of Directors will make a determination on the number to be allowed for each particular year and grant mooring rights either on a lottery system or a yearly rotation system. Our request is for the approval for seven boats to be moored at our dock, with policing to be by the Board of Directors for an orderly boat mooring arrangement. 1 ANN CATHCART, PRESIDENT 1 BERNIE SCHNEIDER, SECRETARY 1 1 1 II ' BOARD OF DIRECTORS MEETING 6/6/81 A meeting was held at Outlot B and attended by Schneider, Freeburg and Crompton and also II at the meeting were members Underdahl and Tester. Since legal action had been decided in favor of the homeowner's association Schneider talked with Kit Peterjohn and she indicated that she planned no further legal action ' in the association matter. We discussed the legal bill of $637.50 and recognized that the treasury balance fell short of th bring the bank account above the amount of the money ye3na Crompton advanced $ anced $50.00 assessments to rin II legal bill so it could be processed for payment. Question was raised regarding the summary judgment as to whether or not Peterjohn would II have to pay our legal fees. Question was also raised as to whether our lawyer was entitled to his $633.77 fee when he, in fact, failed to respond to the Peterjohn cross claim in the first place. II Tax dedrthatsed that the Outlots A and decided that Schneider would attend in Chanhassen. 11 It was moved and seconded that we should send a notification letter to the Trolls Glen No sub - division that the beach was private property and they should refrain from using it and it was agreed that Schneider would purchase a private property sign and have it 11 posted at the head of the public access way. The discussion of repairs to the public access way was held and it was estimated that there would be 120 ft. of walkway to be taken care of and an estimate of $1200 for concreting and $600 for blacktopping was 11 offered by one of the members. We discussed the chains on the post and whether or no they should be replaced or removed. Freeburg was to get prices on materials to repai the walkway to Outlot B. He was to determine the cost of black polyethylene to lay di n II as a base, 1" x 6" lumber to contain the fill, gravel to fill in to an appropriate de; 'h. Boat Dock - Schneider offered to install at his expense and redistribute the cost to any I one who wants to make use of it. He estimated a cost of $1200 for a 60' section of dock. A motion was made by to establish dock privileges for 1981 for a maximum of - T - boat moorings an• is mo ion was secon•e• •y ree.urg. n years •eyon. • e •o-�. mooring arrangemen was o •e •etermine• .y t e :oar.. o ion or a•journmen was ma II by Freeburg and seconded by Schneider. • • i 1 1 1 1 1 • 1 TROLLS GLEN HaMEOWNERS ASSOCIATION 1 BOARD OF DIRECTORS MEETING February 27, 1984' 1 The meeting was held at the home of Bernie Schneider and was attended 1 by Directors Schneider, Underdahl and Merz. The minutes of the January 25, 1984 meeting were read by Bernie Schneider. A motion was made and approved to accept the minutes as read. Under old business, the Board acknowledged the letter received from Joel and M. C. Anderson regarding payment of the assessments of July 9, 1983, and October 10, 1983. The Directors advised that there shall be only one dock located on Association Outlot B, and that those members who choose to moor a boat at this clock shall share in the cost of this dock. A motion was made by Director Merz that the Board of Directors determine that there shall be only one dock located on Uutlot 1; of '!'rolls Glen Homeowners Association. Such dock shall be governed by the Trolls Glen Homeowners Association, but the initial cost of the dock snail be shared proportionately by Association members who choose to moor a boat at the dock. The motion was seconded by Director Underdahl and was carried. Under new business, the Directors questioned the reason for no reduction in taxes on Outlots A and B. Director Schneider will pursue this matter by a letter to the County officials. President Schneider will contact a City official as to soil erosion concerning Outlot A caused by dirt piled on a building lot adjacent to the Underdahl home. A notion of adjournment was offered by Underdahl and seconded by Merz, 1 and the meeting stood adjourned. John Merz ?)--- Secretar l 1 • • 1 1 1 1 • • 1 • ARTICLE IX Temporary Structures, Signs Section 1. Temporary Structures. No structure of a tcrnpar:•r,r character, trailer, basement, tent, shack, garage, boat house, I barn or other out - building shall be used on any Lot at any i :irncr as a residence either temporarily or permanently. There shall be no. storage of. any type of recreational vehicle including, buy not limited to, camping trailers; snowmobiles, motorcycles, motor- _ II bikes; or boats, canoes, dock parts, rafts, etc. unless the vehir1 is not visible from the street. There shall be no cyclone fenc:iwi installed which is visible from the street. I Section 2. Signs. No signs of any kind shall be displayed to the public view on any Lot except one professional sign if not more than one square foot, one sign if not more than five square feet advertising the property for sale or rent, or signs used by the Declarants to advertise the property during the construction II and sales period. ARTICLE ): I Restrictions on Common Area No boats shall be .launched from the Common Area. No r. ocrc•a;.i r• i . vehicle shall be allowed on the Common Area at any time. Boats rnr>r, II in the Common Area shall be moored only in the area designated for: mooring by the Association. ARTICLE XI • 1 Rules Established by Association • The Association shall have the authority to promulgate rear.;c..lkuh rules and regu)atior.s concerning the Common Area, including but not: I limited to•providing steps and a dock and the maintenance thereof, providing garbage service including containers, providing weed control, providing for additional sand for the Common Area beach, establishing hours during which the Common Area may be used, prov.i.c1i 11 hours•during which the•Common Area may be used for public gather.irr<1s: and providing regulations concerning the mooring of boats in the Common Area. • • ARTICLE XII II • • General Provisions ✓ .• Section 1. Duration. The covenants, restrictions and easement. 11 of this D' eclaration shall run with and bind the land and shall inur-c' to•the benefit of and be enforceable by the Association or the Owns•,: of any Lot'subject to this Declaration, their respective legal representatives, heirs, successors and assigns, for a term of twenty (20) years from the date this Declaration is recorded; after which time said covenants, restrictions and easements shall be automatically renewed for successive periods of ten (10) years. The covenants and restrictions of this Declaration may be amended during the first twenty (20) year period by an instrument signed II -"t less than ninety percent (90 %) of the Lot Owners and there- - instrument signed by not less than seventy -five percent ^ «ers. Any amendment must be properly recorded. •,: -lc. • • II . II c aw Offices of 1 SCHOLLE AND BEISEL, Ltd. 430 PILLSBURY CENTER MARK SCHOLLE 200 SOUTH SIXTH STREET OF COUNSEL BRADLEY N. BEISEL MINNEAPOLIS, MINNESOTA 55402 -1413 STEPHEN G. SCHOLLE LESLIE C. SCHOLLE (1909.1988) (612) 3381330 ,JOHN E. CRABTREE ID 1.800. 4224819 (MN WATS) (412) 349.6409 FACSIMILE May 10, 1991 City of Chanhassen 1 Administrative Office 690 Coulter Street , Chanhassen, MN 55317 Attn: Jo Ann Olsen 1 Re: Merz /Johnson v. Trolls -Glen Homeowner's Association Our File No. 5521 -90 1 Dear Ms. Olsen: I an writing on behalf of John Merz and Terry Johnson, each of whom owns property in the Trolls -Glen First Addition subdivision of Carver County. I know you are generally familiar with that subdivision, and with the fact that Outlot B of that subdivision I/ is a beach lot which has access to Lake Minnewashta. We are writing to formally complain of persistent and repeated violations of the applicable zoning ordinance regulating that beach lot, and to demand that the ordinance be enforced by the City of Chanhassen. I am enclosing with this letter Affidavits of John Merz, Terry Johnson and myself which outline the uses to which the beach lot ' has been put since it was first improved in 1981. These Affidavits are made from the personal knowledge and observation of Mr. Merz and Mr. Johnson, and from my own knowledge of the situation. My Affidavit includes copies of pertinent portions of sworn depositions given by members of the Trolls -Glen Homeowner's Asso- ciation. As you can see from examining the enclosed material, it is undisputed that the use to which Outlot B has been placed since 1981 is as follows: 1 1981 - One sixty four (64) foot dock, two boat lifts, two power boats. 1 1982 - One sixty four (64) foot dock, two boat lifts, two power boats. 1983 - One sixty four (64) foot dock, two boat lifts, two power boats. RECEIVED 1 __ MAY 14 1991 . CITY. OF CHAN SAN 1 a::x 1 May 10, 1991 Ms. Jo Ann Olsen Page 2 1984 - One sixty four (64) foot dock, two boat lifts, two power boats. 1986 - One sixty four (64) foot dock and additional section of dock and three power boats. 1987 - One sixty four (64) foot dock and two power boats. 1988 - One sixty four (64) foot dock and three power boats. 1989 - One sixty four (64) foot dock and three power boats. 1990 - One sixty four (64) foot dock and four power boats. You will also see from the enclosed materials that the Trolls -Glen Homeowner's Association has passed a motion to allow the same sixty four (64) foot dock to be erected and a maximum of four power boats to be docked at the dock. We believe that the use of the beach lot for docking of any more than two boats at a time is a clear violation of the applicable beach lot ordinance. Through research and previous conversations with you and other city officials, I understand that the original ordinance regulating recreational beach lots was adopted by the City of Chanhassen in February of 1982 as Ordinance 47AB. It provided requirements for recreational beach lots which clearly ' were not met by Outlot B of Trolls -Glen First Addition. However, it also provided that uses which were being made of existing beach lots at the time the ordinance was passed were "grandfathered in" so long as they were not increased or intensified. Clearly, the use to which the beach lot was put when the ordinance was adopted was one sixty four (64) foot dock, two boat lifts and two power boats. The recent and contemplated uses certainly constitute an intensification and increase of the use of the beach lot which would be a violation of the ordinance. The present beach lot ordinance is Section 20 -263 of the Chanhassen Zoning Code. • 1 1 1 1 May 10, 1991 Ms. Jo Ann Olsen Page 3 Mr. Merz and Mr. Johnson will report the usages to which the beach 1 lot is being put this season. In the meantime, we would appreciate your beginning the processing of this complaint as I believe that enforcement action is clearly justified at this time. 1 Very truly yours, `?? OLLE S ` LTD. 1 //- 4 gie :radley N. eise1 BNB / j rb 1 cc. w /enc. John Merz Terry Johnson Scott Has Roger Knutson 1 1 1 1 1 1 1 1 1 1 1 FFIDAVIT OF TERRY JOHNSON 1 Terry Johnson, first being duly sworn on oath, states and deposes as follows: 1. I reside at 3998 Lone Cedar Circle, Chaska, Minnesota. This property is legally described as: Lot 5, Block 1, Trolls -Glen First Addition, Carver County, Minnesota. I have resided at that location since 1986. 2. As an owner of property in Trolls -Glen First Addition, I am a member of the Trolls -Glen Homeowner's Association. That association owns Outlot B of Trolls -Glen First Addition, which is 11 a beach lot which has approximately 69.3 feet of lakeshore on Lake Minnewashta. 3. Throughout the time I have resided at my present residence I have frequently observed the beach front area at Outlot B and I have noted the uses to which Outlot B has been put by the association. 4. From my personal observation, I know that Outlot B has been put to the following uses during the summers of the years set forth below: 1986 - One sixty four (64) foot dock and additional section of dock and third power boat. 1987 - One sixty four (64) foot dock and two power boats. 1988 - One sixty four (64) foot dock and three power boats. 1 1 1 1989 - One sixty four (64) foot dock and three power boats. 1 1990 - One sixty four (64) foot dock and four power boats. l 6. Also attached to this Affidavit is a true and correct copy of the minutes of a meeting of the Homeowner's Association 1 which took place on March 8, 1991. At that Homeowner's Association 1 meeting a resolution was adopted to allow up to four boats to be docked at the Outlot in 1991. 1 7. I am making this Affidavit for the purpose of requesting that the City of Chanhassen enforce its beach lot ordinances as , • they apply to Outlot B of Trolls -Glen First Addition. FURTHER, YOUR AFFIANT SAYETH NOT: TE'•Y JOHNSON OF STATE OF MINNESOTA) SS COUNTY OF HENNEPIN) Subscribed and sworn to before me this !e day of 1991 by Terry Johnson. 21;,a4j! 4010 ary Publi 1 BRUCE E, LUND3RE OTARY M N UOLIO • MINNE5OTA CARVER COUNTY My Co-4,7144°n Er,ir.s APkIl 16, 1992 1 1 2 1 II 11 AFFIDAVIT OF JOHN MERZ 1 John Merz, first being duly sworn on oath, states and deposes i as follows: 1. .I reside at 3900 Lone Cedar Circle, Chaska, Minnesota. This property is legally described as: Lot 1, Block 2, Trolls -Glen First Addition, Carver County, Minnesota. I have resided at that location since 1977. 2. As an owner of property in Trolls -Glen First Addition, I am a member of the Trolls -Glen Homeowner's Association. That association owns Outlot B of Trolls -Glen First Addition, a beach 11 lot which has approximately 69.3 feet of Lakeshore on Lake Minnewashta. 3. Throughout the time I have resided at my present residence I have frequently observed the beach front area at Outlot B and I have noted the uses to which Outlot B has been put by the members of the association. 4. From my personal observation, I know that Outlot B has been put to the following uses during the summers of the years set forth below: 1981 - One sixty four (64) foot dock, two boat lifts, two power boats. 1982 - One sixty four (64) foot dock, two boat lifts, two power boats. 11 1 1 1 II 1983 - One sixty four (64) foot dock, two boat lifts, two power boats. 1 1984 - One sixty four (64) foot dock, two boat lifts, two power boats. 1 1986 - One sixty four (64) foot dock and additional section of dock and third power boat. 11 1987 - One sixty four (64) foot dock and two power boats. 1 1988 - One sixty four (64) foot dock and three power boats. 1 1989 - One sixty four (64) foot dock and three power boats. / 1990 - One sixty four (64) foot dock and four power boats. 5. In the summer of 1990 I took a series of photographs 1 showing four boats being used at the Outlot. Prints of these photographs are attached to this Affidavit. 1 6. Also attached to this Affidavit is a true and correct copy of the minutes of a meeting of the Homeowner's Association which took place on March 8, 1991. At that Homeowner's Association 1 meeting a resolution was adopted to allow up to four boats to be docked at the Outlot in 1991. , 7. I am making this Affidavit for the purpose of requesting that the City of Chanhassen enforce its beach lot ordinances as they apply to Outlot B of Trolls -Glen First Addition. 1 FURTHER, YOUR AFFIANT SAYETH NOT: JO ' 1 RZ 2 1 1 111 4 STATE OF MINNESOTA) SS COUNTY OF HENNEPIN) Subscribed and sworn to before me this 0 day of 1991 by John Merz. II Notary Public Claudia a cSfimac ,`� dour vuek►c - M.INNklOI ANOKA COUNTY =4` My commission expire= a -1S -y0 • 1 1 1 1- 1. 1 1 1 1 1 1 3 March 9, 1991 1 TROLLS -GLEN HOMEOWNERS ASSOCIATION A special meeting of the members of Trolls -Glen Homeowners Association was held at the Chanhassen American Legion Hall at 12:15 P. M. on the above date with the following property owners represented: Ann Cathcart (Lot 4, Block 2, lsddition, Daniel Hudson, Lot 2, Cedar Crest, Terry Johnson Lot 5, Block 1, 1st Addition, John Merz, Lot 1, Block 2, 1st Addition, Bernard and Irene Schneider, Lot 1, Block 3, 1st Addition, David Tester, Lot 2, Block 2, 1st 1/ Addition and Ivan and Mildred Underdahl, Lot 3, Block 2, 1st Addition. The total properties represented were seven (7). Absent were. the following: Jerry and Ione Ahlman, Lot 4, Block 1, 1st Addition, Joel and M. C...Anderson, Lot 3, Block 1, ist Addition, Gordon and Jacqueline Freeburg, Lot 2, Block 3, 1st Addition, Gary and Janet Mecus, Lot 1, Cedarcrest, John D. and Kit Peter - john, Lot 2, Block 1, 1st Addition. Total properties not represented were five (5) . f The meeting was chaired by President David Tester. Secretary Schneider advised the members that due to an emergency at Northern States Power Company, Daniel Hudson had delivered a proxy to Secretary Schneider authorizing Schneider to vote for Daniel Hudson on all matters to come before the members. The meeting opened with considerable discussion following John Merz statement 1 that he did not agree with the minutes of the July 9, 1990 annual meeting, which stated the following: "Ann Cathcart made a motion to have the Trolls -Glen Association correct the location of a section of the sidewalk that encroaches on the Terry Johnson property, with work to be completed by John Merz by Labor Day. This motia: was seconded by Terry Johnson and on vote taken, all members voted in favor." John Merz stated that he did not remember the particulars of the vote but he would� now agree to take out the section of the sidewalk and put in the curbing fcr the new section, with Trolls -Glen Association to pay for the materials for the curbing, cement and labor for installing the new sidewalk. Since this improvement was previously approved no vbte was necessary. Secretary Schneider then read the minutes of the March 4, 1991 Board of Directors meeting, at which the directors made the following motion: On motion by Bernie Schneider, seconded by Daniel Hudson, the following was proposed: "All members that are delinquent in the special assessment of July 10, 1990 in the amount of $200.00 shall not be entitled to vote at any meeting of the Association until thei special assessment is fully paid. This action is empowered by Article V, Section 1,(b). of the By -Laws. On vote taken all directors voted in favor and the motion was carried. At this time Ann Cathcart informed the members that she was present at the March 4, 1991 meeting and said that she was not aware that the meeting was a directors meeting. She was of the opinion that it was a meeting of the members named in the Johnson Merz lawsuit against Trolls Glen and certain members. At this time both John Merz and Terry Johnson objected to the directors calling a meeting of the directors and notifying only certain members, not directors, of such a meeting. Secretary Schneider advised Ann Cathcart that she was not present at the start of the March 4, 1991 meeting. Her husband, John Ferm was present and was aware that the directors were acting on the delinquent member voting status while the special assessments were delinquent. He also stated that the directors had no responsibil�: in notifying all Association members of a particular meeting of Be further s t ated • that it is the membership's right to call for a full to vote on removal of the present directors and elect new directors and officers if they are of the opinion that the directors are acting unfairly. ,- - s '' Trolls -Glen Homeowners Association Meeting, Na,zch 9, 1991 page 2 At this time Johr. Merz asked that a discussion be held (off the record) regarding il - the pending lawsuit. All members present were asked to make a statement, if they so desired, regarding the lawsuit or any particulars regarding the problems on or about Outlot B. The discussion continued for about 45 minutes after which II President Tester officially reopened the meeting. It was again noted that the original suit against the Association and certain members served June 4, 1990 stated as follows: Wherefore, Plaintiffs pray for an order of this court as follows: II 1. Ordering that the present private dock owned by Underdahl and Schneider be removed from Outlot B. II 2. Ordering defendants Perm and Cathcart to cease and desist their private use of Outlot B. 3. To permanently enjoining'•defendents Hudson and Necuswfrom constructing II improvements of any sort on or adjoining Outlot B . 4. Permanently ejjoining all further use of Outlot B by individual members of the Association unless and until said uses or improvements to Outlot B I are ordered by or atproved by the Association after the Association has - complied with all notices and meeting requirements set forth in the govern- " ing documents. 5. .For such ocher and further relief as may be deemed just by the court. I John Merz advised the members that his attorney had made the following suggestion that Mr. Merz would be willing to resolve his claims were the Association be willing to limit the placement of docks at the Outlot to TWO BOATS. This II was previously stated in the letter from Kelly Law Off ices on Feburary 21, 1991 to Trolls -Glen and members named in the suit. II The members present were not willing to make such a concession. At this time Ann Cathcart stated that she had to leave the meeting and had given David Tester her proxy to vote. Daniel Hudson then appeared at the :meeting. Shortly there - Iii after John Merz advised the members that he was to continue with his suit and stated that it was going to cost the Association a lot of money. He then left the meeting. A motion was then made by Ivan Underdahl that the Association shall allow no II more than four boats to be moored at Outlot B, and that of the four boats, no more than two shall be high jowered boats. This motion. was seconded by Daniel Hudson. On vote taken the following voted in Favor: Tester, Hudson, Underdahl. 1 Against the motion was Schneider. The motion carried. The matter of legal fees was then discuesed. The Association DECLARATIONS AND COVENANTS, CONDITIONS AND RESTRICTIONS, Article V, Section 5 state: Annual and special assessments to be Borne Equally. Both annual and special assessments must be fixed at a rate which is equal for all Lots in Trolls -Glen. II • `` - i.i-.1_'ril•,.0v n _i -_ TEL 1•■��.fi- i:f 1 Hal ...'.'.i1 .ii .LJ': r..'i Trolls -Glen Homeowners Association Meeting, March 9, 1991, page 3 II II . The anticipated legal fees was estimated at $12,000.00. We have twelve property owners and therefore, the assessment per lot, needed to meet the legal expenses amount to $1,000.00. A motion was made by David Tester that an assessment of $1,000.00 per lot be levied at this time, with the law firm, Kelly Law Office, II to bill all property owners. with the Assessment to be paid in 30 days. This motion was seconded by Daniel Hudson. On vote taken the following votes were recorded in favor: Hudson, Schneider, Tester, Underdahl and by proxy, Cathcart. There were no negative votes. The motion carried. Schneider was advised to send the names of the property owners and addresses to Kelly Law Offices for billing. II There being no further business the meeting was adjourned at 4:00 P. M. 1 Bernie Schneider II Secretary II 1 1 1 1 1 1 1 1 • 1 K. 1 - 1 I j.PFIDAVIT OF BRADLEY N. BEISEL Bradley N. Beisel, being first duly sworn on oath, states and deposes as follows: 1. I am an attorney duly licensed to practice law in the state of Minnesota and I represent John Merz and Terry Johnson relative to their request that the beach lot ordinances of the City of Chanhassen be enforced with respect to Outlot B, Trolls -Glen First Addition, Carver County, Minnesota. 2. I have taken the sworn depositions of Bernard Schneider, Ivan Underdahl, each of whom is a member of the Trolls -Glen Homeowner's Association. 3. Attached hereto are copies of portions of those depositions, each of which pertains to the use to which Outlot B of the Trolls -Glen Homeowner's Association was put during 1981 and subsequent years. FURTHER, YOUR,AFFIANT SAYETH Neel / 1 11( .' BRADLEY . BEISEL STATE OF MINNESOTA) SS COUNTY OF HENNEPIN) ) Subscribed and sworn to before me this� day of 1991 by Bradley N. Beisel. / `` - -- - �'ar y�Public irilhi■Irr..--'101.2.1SZI*41/ •WV V W \NbY1Y•IV•. M 1 1 1 26 ' II 1 Q. Now, I understand that as time went on, you and 2 Mr. Schneider came to an arrangement with another party with 3 respect to selling an interest in your dock; is that true? II 4 A. Yes. 1 5 Q. And that -- was that person Patrick McGurk? 6 A. Yes, it was. II 7 Q. Okay. And what was that arrangement? II 8 A. That he purchased a one -third interest in the 9 cost of the dock. II 10 Q. From you and Mr. Schneider? I 11 A. Yes. 12 Q. And do you know when that arrangement was made? 11 13 A. In the fall of 1986, I believe it was. II 14 Q. And do you know or did you have an 15 understanding as to what use Mr. McGurk would be making of 1 16 his interest in the dock? II 17 A. He would use it to get to his boat. 18 Q. Okay. So he had a boat too? 1 19 A. Yes. 20 Q. And when did he get his boat? 21 A. I presume late summer or whatever of 1986. I II 22 am -- that was his doings, but I think that's when it was. II 23 Q. Okay. Up to 1986, then, as I understand it, 24 the dock was the property of you and Schneider only; is that `' 25 true? II KIRBY A. KENNEDY & ASSOCIATES DEPOSITION OF (612) 922 -1955 IVAN UNDERDAHL II 1 27 II 1 A. We were the ones that paid for it. 2 Q. And therefore you were the ones that owned it? II 3 A. I guess that gives us ownership -- II 4 Q. Okay. 5 A. -- if we paid for it. II 6 Q. Now, up to that time, then, were you and II 7 Mr. Schneider the only ones that had boat lifts on the dock? 8 A. Yes. 1 9 Q. Did -- were you and Mr. Schneider the only ones II 10 to dock your boats at the dock up to that time? 11 A. Yes. il - 12 Q. But after 1986, Mr. McGurk started docking his II 13 boat there? 14 A. Yes. II 15 Q. Did he also use a boat lift? II 16 A. Yes. 17 Q. And was that boat lift owned by Mr. McGurk II 18 solely? 1 19 A. As far as I know. 20 Q. Do you recall the kind of boat that he had in II 21 terms of size and power? II 22 A. It was a Lund. I don't know if you call it a 23 bass - fishing boat, or that sort of thing, I guess. il 24 Q. With an outboard motor? ' 25 A. Yes. 11 KIRBY A. KENNEDY & ASSOCIATES DEPOSITION OF (612) 922 -1955 IVAN UNDERDAHL 13 II 1 A. Well, the decision was to put our dock into the 1 2 lake -- we are talking about the 64 -foot section -- and Mr. 3 Underdahl had a boat and a boat lift and I had a boat and a 4 boat lift, and these were put in. John Ferm apparently 1 5 decided he did not need to put his section on, so he left it 6 in his garage. 7 Q. All right. Is that to say that you feel'that Mr. 8 Ferm could put that out there if he wanted to at any 9 particular time? 10 A. Yes. 1 11 Q. Now, in 1981, there was a dock and two boat lifts 12 and two boats at the association outlot, correct? 13 A. Yes. 1 14 Q. And I am showing you what was previously marked 15 Underdahl Deposition Exhibit Number 8. It's a photocopy of a 11 16 photograph plus some writing on the back that Mr. Underdahl 1 17 testified that that's what the dock and boats looked like in 18 the fall of 1981. Is that accurate? 19 A. Yes. 1 20 Q. Would that also have been about what it looked 21 like in the fall of 1982 and '83 and '84? 22 A. Uh -huh. 23 Q. You have to say "yes ". 24 A. Yes. 1 25 Q. So in '81 and '82 and '83 and '84, two boats were 1 KIRBY A. KENNEDY & ASSOCIATES DEPOSITION OF • (612) 922 -1955 BERNARD SCHNEIDE I 14 1 used at the association dock? 2 A. Yes. 3 Q. Now, it's also my understanding that in 1990 Mr. 4 Hudson started docking a boat at the outlot. Is that true? 5 A. Yes, he did. 6 Q. Was it in 1990 that he started that? 7 A. I am sure it was this past year, yes. 8 Q. And do you recall how it was that he felt he was 9 entitled to dock a boat at the outlot? 10 A. I can't give you that answer. I assume that when 11 he purchased the property, that he was advised that he had 11 12 boat mooring rights the same as all other residents of the 13 association. He did not specifically ask me or Ivan 14 Underdahl whether he could put the boat at the dock, but he 15 assumed it was an association dock for the use by the 16 members. 17 Q. Do you know whether his docking of the boat at 18 the association lot was ever discussed at a meeting of either 19 the association or the board of directors? 20 A. I am sure it was not. 21 Q. How about when Mr. McGurk started to dock his 22 boat at the association dock, was that ever discussed at the 23 association meetings? 24 A. I question whether it was discussed. The 25 original motion made and approved by the board of directors KIRBY A. KENNEDY & ASSOCIATES DEPOSITION OF (612) 922 -1955 BERNARD SCHNEIDER 37 1 1 property. 1 2 Q. Okay. Now, we're up to 1986 when McGurk buys a 3 portion of the dock and puts his boat up there, or stores his II 4 boat there, docks his boat there. Okay? 1 5 A. Okay. 6 Q. All right. Now, from that point forward, I II 7 want you to tell me the use that the dock was put to for 1 8 docking boats. In other words, whose boat was docked on the 9 dock from 1986 on? , 10 A. Bernard Schneider's boat was docked on his II 11 lift. My dock was docked on my lift. Pat McGurk's boat was 12 docked on his lift. I 13 Q. Anybody else dock a boat there? II 14 A. Not during that time. Not that I am aware of. 15 Q. Well, how about after that time? 1 16 A. Well, after that time, Pat McGurk left. II 17 Q. Okay. What happened? 18 A. And so did his boat leave. II 19 Q. And how about his one -third ownership, what II 20 . happened to that? 21 A. That stayed in his ownership for possibly r. 22 almost two years, because he still owned a vacant lot -- 23 Q. Okay. 24 A. -- in the Trolls -Glen First Addition. II 25 Q. Now, during that two years, McGurk -- did II KIRBY A. KENNEDY & ASSOCIATES DEPOSITION OF 922 -1955 IVAN UNDERDAHL r (612) 38 II 1 McGurk dock his boat on the dock? 2 A. It was gone. 1 3 Q. So the answer is no? 11 4 A. State the question -- restate the question. 5 Q. During those two years, that would be -- I I 6 believe you said for two years he -- 1 • 7 A. Well, whatever length of time. - 8 Q. At least one season? 1 9 A. Yes. II 10 Q. He did not dock his boat on the dock? 11 A. That is correct. I/ . 12 Q. All right. But now I understand that in 1988, II 13 he found a buyer for his one -third interest, and that would 14 be Mr. Ferm and Ms. Cathcart; is that right? I 15 A. Yes. II 16 Q. Okay. And as I understand it, McGurk then sold 17 his one -third interest in the dock to Ferm and Cathcart, and 1 18 that was okay with you and Schneider? II 19 A. Yes. 20. Q. And that was in the summer of 1988? 1 21 A. I believe it was in 1988. I don't know the II 22 exact times. 23 Q. Well, I am going to show you a document that's 1 24 been previously marked as Cathcart Deposition Exhibit No. 1. I 25 And it appears to be a letter to Mr. Schneider from Mr. McGurk. I KIRBY A. KENNEDY & ASSOCIATES (612) 922 -1955 DEPOSITION OF IVAN UNDERDAHL ' It &y it: .- .t ,- : i .-, . . 0 - i; 4-, . *-, - , : . 4. • .. ' .., A' 14.4 r ‘11-. 1 * t • • • . 1 L k t Pi 4 . I . . $ t . 4 7 t44 , r .4 i • / • ,:, %, -* 0 . . i 1 T. . II 44. V.2i • i t. i .; • . . • • A .. t.- 1 • . ; ' .' .. t 1 . - - ...- • , . . . I • . . .4 , . • . ,i, sie:."' 1 . . II& I . , . .. . " r . • 1 • . I ' . 4 . 1:. 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'4' " • - ' ii • • Ir i 1.- '',, • ,,, • •• . i. _ • p t -..*,- - * , • • - I • 'T l . 4 .• 4: "‘.• . •4 • f ..■ 1 1 1 MEMORANDUM 1 TO: Planning Commission, City of Chanhassen FROM: John and Marianne Merz il Terry and Pam Johnson 1 1 RE: Application of Trolls -Glen Homeowner's Association for non - conforming use permit for recreational beach lot II DATE: May 1, 1992 11 , II 1 1 1 1 1 1 1 1 II TABLE OF CONTENTS I. Introduction 1 II. Outlot Usage During Summer of 1981 2 III. Conclusion 4 1 Appendix "A" 1 Historical Background of Beachiot Ordinances 6 Appendix "B" History of Attempts to Enforce Recreational Beachiot Ordinance 9 I/ LIST OF EXHIBITS 1 Ordinance Number 163 1 Plat of Outlot B, Trolls -Glen First Addition 2 11 Excerpts from Bernard Schneider's Deposition 3 Excerpts from Ivan Underdahl's Deposition 4 Photograph Showing Dock and 2 Motor Boats in 1981 5 1 Affidavit of John Merz 6 Affidavit of Terry Johnson 7 1 Letter Dated 5/10/91 from Bradley N. Beisel to City of Chanhassen 8 Beach Lot Survey Dated June 4, 1981 9 Letter Dated 1/5/88 from City of Chanhassen to Ivan Underdahl... 10 1 Letter Dated 6/3/91 from Joanne Olson to Trolls -Glen Homeowner's Association 11 Letter Dated 6/24/91 from Elliot'Knetsch to David Tester, Bernard Schnedier and Daniel Hudson 12 1 Letter Dated 7/11/91 from Elliot Knetsch to members of the Trolls -Glen Homeowner's Association 13 i 1 1 I. INTRODUCTION On February 24, 1992, Ordinance number 163 amending the Zoning Code of the City of Chanhassen was passed. This ordinance, a copy of which is attached hereto as Exhibit "1," establishes a permit- ting process concerning non - conforming recreational beach lots existing in the City of Chanhassen. Outlot B of Trolls -Glen First Addition is such a non - conforming recreational beach lot. At 69.3 feet of shoreline and approximately 25 feet of depth Outlot B comes nowhere near the requirements established for recreational beach lots. A copy of the plat showing said Outlot B is attached as r Exhibit "2." A summary of the historical background pertaining to ordinances regulating recreational beach lots in the City of 11 Chanhassen is attached as Appendix "A." The ordinance states that "the permit shall be issued following receipt of satisfactory proof concerning the nature and extent of the legal non - conforming use as it existed on or before January 18. 1982." ' Thus, the task of the Planning Commission is to determine, by 1 "satisfactory proof," the extent of the non - conforming use of Outlot B on or before January 18, 1982. 11 The application for a non - conforming use permit submitted by the Trolls -Glen Homeowner's Association asks for a permit for the use of four motorized boats at Outlot B. There is no evidence whatsoever that four boats were used at the beach lot on or before January 18, 1982. Rather, clear and uncontroverted evidence, including photographs, sworn affidavits, and sworn deposition testimony conclusively establishes that prior to January 18, 1982 i 1 II Outlot B was used for one 64 foot dock, two boat lifts and two power boats. This level of usage is the maximum that can be allowed in any non - conforming use permit requested by the Trolls - Glen Homeowner's Association. ' II. OUTLOT USAGE DURING THE BUMMER OP 1981 1 The question of the extent of usage of Outlot B was examined in great detail in a lawsuit previously brought by John Merz and Terry Johnson against the Trolls -Glen Homeowner's Association and 1 other members of the Association in the spring of 1991. As a result, it is possible to determine with certainty the usages of r Outlot B at the crucial time of the summer of 1981. The home- owner's association and the members who were defendants in this lawsuit had every incentive in the lawsuit to prove the largest 1 possible usage of the Outlot in 1981 and subsequent years. The depositions of Bernard Schneider and Ivan Underdahl were taken in 1 the course of the lawsuit. Both Mr. Schneider and Mr. Underdahl lived in Trolls -Glen during the summer of 1981 and thus are among the few homeowners in a position to testify from actual memory as to the usage of the Outlot that summer. Mr. Schneider was specifically asked in his deposition: 1 Q. Now in 1981 there was a dock and two boat lifts and two boats at the association Outlot, correct? A. Yes. , Copies of pertinent pages from Mr. Schneider's deposition are attached to this Memorandum as Exhibit "3." A complete copy of 111 2 1 r II the transcript of Mr. Schneider's deposition is available from John Merz. In Mr. Underdahl's deposition, the following exchange occur- 111 red: Q. Ok. Up to 1986, then, as I understand it, was the dock the property of you and Schneider only; is that true? A. We were the ones that paid for it. Q. And therefore you were the ones that owned it? A. I guess that gives us ownership - Q. Ok. A. - if we paid for it. Q. Now, up to that time, then, were you and Mr. Sch- 11 neider the only ones that had boat lifts on the dock? A. Yes. Q. Did, were you and Mr. Schneider the only ones to ' dock your boats at the dock up to that time? A. Yes. ' Q. But after 1986, Mr. McGurke started docking his boat there? 1 A. Yes. Copies of pertinent pages from Mr. Underdahl's deposition are attached to this Memorandum as Exhibit "4." Both Underdahl and Schneider identified a photograph taken by Mr. Underdahl in the fall of 1981 showing the dock and two power boats. A copy of that photograph, together with the notes that were written on it by Mr. Underdahl, is attached to this Memo- ' randum as Exhibit "5." 1 3 r 11 Affidavits from John Merz and Terry Johnson concerning usage II of the Outlot were submitted to Joanne Olsen of the City of Chan- 1 hassen in May of 1991. Copies of those affidavits are attached to this Memorandum as Exhibit "6" (Merz) and Exhibit "7" (Johnson). 1 Also attached as Exhibit "8" is a copy of a letter submitted by Mr. Merz' attorney to the City of Chanhassen dated May 10, 1991 1 summarizing the evidence concerning the usage of Outlot B 1981 II and beyond. Many issues pertaining to the Outlot have been disputed among 1 the members of the association over the years. However, there has never been a dispute as to the level of usage of the Outlot. It's II clear and undisputed that during the time period which is crucial II to the Planning Committee's determinations, Outlot B was used for two power boats, two boat lifts and one 64 foot dock. There is no II evidence of any usage prior to the summer of 1981. For instance, the City's survey concerning existing conditions at recreational 1 beach lots which was done on June 4, 1981 indicated no docks or boats as of that time. A copy of said survey is attached to this II Memorandum as Exhibit "9." II 1 IV. CONCLUSION The question before the Planning Committee boils down to the II use to which Outlot B was put in the summer of 1981. The recently 1 adopted ordinance requires the Planning Committee to consider only the use, and not the intended use, of Outlot B at that time. 1 4 1 1 II the use, and not the intended use, of Outlot B at that time. There is no question as to the extent of that use, namely two 1 boats, two boat lifts and one 64 foot dock. Any application for a permit to maintain anything more than two boats, two boat lifts and one 64 foot dock must be denied. 1 1 1 1 1 1 1 1 1 1 1 1 1 1 5 1 Planning Commission Meeting 11 May 6, 1992 - Page 22 PUBLIC HEARING: ' NON- CONFORMING USE PERMIT FOR A RECREATIONAL BEACHLOT FOR TROLLS GLEN HOMEOWNERS ASSOCIATION. ' Public Present: Name Address ' Mary Jo Moore 3231 Dartmouth Drive John P. Merz 3900 Lone Cedar Terry Johnson 3898 Lone Cedar Circle ' David & Mary Ann Tester Bernie Schneider 3897 Lone Cedar Lane 7501 West 77th Street - Ivan Underdahl 7502 West 77th Street ' Ann Cathcart 3895 Lone Cedar Circle Aanenson: I'll just make a couple quick comments. Thank you. The Trolls Glen Homeowners 1st Addition and Cedar Crest Association has been in existence since 1979. There's 12 homeowners in this association. There was an inspection done on this beachlot in 1981 but based on a legal action brought by John Merz and Terry Johnson, there is depositions on this one ' documenting what was in place in 1981. Just for historical perspective, there was a complaint to investigate these beachlots back in June of 1991 but because we are going through this beachlot process, that has been put ' off until this time to go through the non - conforming process. The Association is seeking approval of 2 boats be docked and 2 boats to be moored. Again some of the concerns that we have is that the dock, again the ordinance says 50 foot. They've shown that they've always had a 64 foot length dock. They're also requesting a canoe rack. As I mentioned the two boats docked and the two boats moored and they do have a swimming beach. Batzli: Would the homeowners association representative like to address the commission? ' Ann Cathcart: My name is Ann Cathcart and I live at 3895 Lone Cedar. I'm the President of the association. I think this is going to be the easiest case. I might mention something. I'm glad to be here, listening to that first case because I think one of the problems is the non- conforming recreational beachlot application that we got. The directions said please provide all requested data consistent with what existed in the summer of 1981. So we put down what was there in 1981. But then with what we wanted, along with what was physically there is what we put. But to clarify it, the application really is the letter. That is pretty self explanatory in what we want as far as the request. The non - conforming ' recreational beachlot permit. Because I can go down this and somewhat see the confusion. There really wasn't a place to request the picnic table, although we would like to have a picnic table. We have had a picnic table since way before 1986. You see what I'm getting at? Aanenson: I can explain. The ordinance doesn't address picnic tables. The beachlot ordinance. What we've done, we just want to document that there is a picnic table in case someone in the future complains that they've got a picnic table, we've identified that it's there and that's the intent. 1 11 Planning Commission Meeting May 6, 1992 - Page 23 The beachlot ordinance doesn't say whether or not you can have a picnic table. But we just want to document if it's there or not if someone , complains. Emmings: What about her comment that on the application that they fill out, they're supposed to fill out the status quo of 1981. Aanenson: What they felt they had in 1981 and I've spoken to numerous people on this. When they've called to ask about it, that was the direction from the Council. Emmings: I know that but don't they get, do they also get a form that says, what are you asking for or is this all you're asking? Do you ask them if they want. On the sheet where it says what they're asking for in their permit, it says picnic tables not requested. Well she didn't even know she had to request them. But she might have. Are we giving her that opportunity? Aanenson: Yeah. Under 16, that's why some people have put those 1 underneath structures. Other structures that are there. Emmings: But that's as of 1981. I think what she's saying is, they've ha a picnic table there for a long time. Didn't know it was something she ha to ask for or write down. Ann Cathcart: Another explanation. We had two boats in the water. The II only reason we're going through all of this is because our Minutes specified that we'd have 4 boats since before the ordinance came in. And there weren't enough boats because the neighborhood wasn't built up. So well only had 2 boats. We weren't just going to invent or just plop 2 more boats in because we had specified in the Minutes and the Association had ruled to have 4 boats. But there was only a need for 2 so there were 2 I there. But they were planning throughout the development of the association to have 4 boats. So what I did in my letter, that was the application processed with the letter and we had our special meeting. We , voted to have 4 boats. That would be our special request and as you can see in the second paragraph, we requested and it says, I did this on my new. computer so I don't know how to underline or italics or anything. So we request a permit for mooring 4 boats on a non - conforming beachlot. , Batzli: Which letter are you? Ann Cathcart: The letter, it's on the back of the recreational beachlot II inventory. Yeah, docking. So then on the association request, all of a sudden here it says boats at dock, 2. Boats moored, 2 but we have had and have always planned to have a 64 foot dock. We have 2 boat lifts with boats and then 2 boats just tied onto the dock. Two small fishing boats. That's what we intended. So in the letter, how can you specify all that? So we just let you know you can really get complicated when you get to the II nitty gritty. Because when we got this, of course we had question marks. And another thing that's very interesting that could complicate things. In their recreational beachlot inventory in 1981, it shows blank as if it didn't exist. But it shows our beach was 3,000 square feet and 60 feet of shoreline and it's actually almost 70. So maybe we can get into that later 1 Planning Commission Meeting May 6, 1992 - Page 24 11 because we had a neighbor that, and maybe when they inventoried this, they ' didn't think there were any, I don't know what happened but there, our neighbor was 10 feet in on the association lot so there was a dock on the lot and his 2 boats. So in effect, actually in 1981 we had 2 docks and 4 boats on our lot. And we have pictures to prove that and I suppose if it ' ever went to the Supreme Court, we'd get subpeonas and affidavits and all that so it's very complicated. 1 Farmakes: It's non - conforming. Ann Cathcart: No, it's non - conforming. Farmakes: Your 70. Ann Cathcart: It's non - conforming but if you go by the, this is based on interpretation because it's so strict and whatever was physically in the water, we could probably prove that we had 2 docks and 4 boats. ' Emmings: One of which belonged to. Ann Cathcart: The neighbor who planted a tree on the association beach. ' Who had his dock over and had his two boats there. Batzli: Do you have any other comments on the? ' Ann Cathcart: No, except the fact that we would like our 4 boats that were specified in the Minutes of the meeting in 1981 and that, these are page numbered. I think Kate, she did a beautiful job in putting this together. 40 pages. I counted but our Minutes. Ahrens: Are their 1981 Minutes in here? Ann Cathcart: Yeah. 1981. 1981 Board of Directors meeting. 6 -6 -81 and it is underlined at the bottom. We've been an association. ' Ahrens: Where does it say that there's 4 boats in the water? Emmings: There are 4 boat places. r Farmakes: Two boat lifts, two power boats. Ann Cathcart: A maximum of 4 boats mooring. So that's been a stipulation, a ruling for all these years and it did happen that we bought our property in 1985. Moved in 1987 so our boat was there as you can see with all the affidavits and depositions and everything that it says also. 19 pages of that. Our boat was in in 1987. The 14 foot fishing boat. Batzli: Thank you. Would anyone else like to address the commission? ' John Merz: I'm John Merz. I live at 3900 Lone Cedar. I am a member of Trolls Glen Homeowners Association. I am also an adjacent property owner. I own a piece of property that is not a part of Trolls Glen. So I'm going to come before the commission from a relatively unique perspective. So 1 Planning Commission Meeting May 6, 1992 - Page 25 1 what my words are, with the association. I'm also speaking, so I wear two hats so to speak. Emmings: Tell us which one you have on. John Merz: I don't know. It's going to be, number one. If you've read al" the documents that I had submitted, applaud you. It must have been awful reading. If you haven't, I at least hope that you got through the first 5 pages. I'm going to make this real short because I've been here before an I think my stances are well known but I do want to point out a few things. It's well document irregardless of what the surveys say by sworn testimony and all the documentation here, what did exist in 1982. And it's to my understanding of what the City Council's 1982 baseline directs us to conform to. It isn't the intended use but it's actually the physical use of what was there in 1982. I'd like you to refer to Exhibit 2 which is ' really the survey of our outlot, and I'll make my remaining comments. Aanenson: Are you referring to this document? John Merz: No, it's in the cover. Yeah, in that document but it should be in the 8 page cover letter that you should have had and it just is actual, physical. 1 Aanenson: I didn't make copies of this. I talked to Mr. Beisel and basically everything that we put in here is kind of a summary of this. John Merz: Alright. All I need to know is do you have a current copy of the plat? I have one here I can show you. It should be underneath your own exhibit. I want you to refer to the plat. You should have a copy of it. Of the survey and it shows that the width of the property is indeed 6 feet at the registered high water mark. It also shows and it's quite important that you see that the property is only 27 foot in depth at the II water line to the back of the property line on one side and that's the greater amount. The other amount is less than 23 feet. Most important before this commission is the fact that the property lines are not parallel. They actually run towards the triangle shape. And in my business, I happen to do a little bit of surveying so I managed, Mr. Johnson and myself, my neighbor, found the existing survey stakes down there and I set up a transit over these and extended the property lines so II that I could accurately place my dock and not encroach within the 10 foot setback. To make a long story short, at 80 feet out, give or take an error of a couple feet, I'll allow the fact that we have 35 feet of useable space between the property lines as they're extended 80 feet away from the shoreline. That given along with the summertime request that we know it was there in 1982, I am here to ask this commission recommend to the Council that we maintain the 1982 baseline. There were only 2 boats there .II It's very difficult to maintain the 1982 baseline conforming with the dock setback ordinance the way it is to work within the 35 feet. The summertime useage is complicated enough. Then we can go to the wintertime storage problems on this piece of property. With the docks, the boat lifts and everything there, it's almost impossible to egress or go across this piece of property without (a) going on the lake, or (b) trespassing on somebody else's property that's not a member of the association. So like I say, I'm l a member of the homeowners association and I wear that hat. From that 1 Planning Commission Meeting May 6, 1992 - Page 26 position I must say that we had a 4 to 3 vote on the application to go to 4 boats. It's been long argued and well documented within our Minutes of my opposition to number one, any boats. But more than 2 boats and I won't get into that and bore this commission with all the facts. I've got oodles of documentation for it. There is really a bigger issue here. It's not just ' Trolls Glen and we do have a right here as lake owners and non -lake owners and citizens of this city to make sure that the precedent set by this is number one. And if we deviate from the '82 baseline, and I understand ' that you're going to take into consideration all the existing and extenuating circumstances and certainly there are in this case. But the hard facts of the matter is that this lot is so non - conforming that it has a hard time maintaining the use of the 2 boats that are presently there, much less expanding it's use to 4 boats. And that the term of mooring is really quite upsetting to me because I don't know how we could possibly moor boats out there. I mean it's hard enough to dock them much less put some moor out there. I do think that it's bigger than Trolls Glen. I think it affects all of Chanhassen and from my position I've spent an awful lot of time and energy not to go into the legal end of it but it's been a ' time consuming situation. I feel strongly about and it's not just Lake Minnewashta. Lotus Lake and all the lakes in this city and it's not just the people that live here right now. It's the people that may live here 10 ' and 15 years from now that may have a slightly different view of what we perceive. I don't think the Council in 1982 was certainly all that malign to come up with those ordinances that they do and I do think that this commission, in all honesty, should adhere to that. That was a long battle back in 1982. I know Mr. Conrad was involved in them. I know a lot of people have had an awful lot of input into what went down into creating that ordinance and it's unfortunate that the 1992 Council is going to have ' to get, step to the plate and bat and enforce it. It's as simple as that. We can turn our heads and walk away from the issue or we can take it on and I'm afraid that's what you're charged with. I really ask that you, I have no objections to two boats. That's what was there in 1982. By the way, the surveys that were done were flawed for some reason. I was there when the 1982 survey was done. Scott Harr maybe. It was Scott somebody did this survey and I just happened to be standing there and it was about a week before all the, our docks went in but I do agree that in 1981 or the late summer thereof, that there was a 64 foot dock and 2 boats there. And I do believe that the documents are accurate. I think we've all been under sworn testimony to it. I don't think the fact that there's some alleging that there was another dock there. If it was, it was placed there in error by one of the neighbors. I wouldn't bet on that but I thank you for your time and I respectfully ask that you reject this thing and go with 2 boats. That's what was there. We can live with it but more than that is definitely unacceptable to me. Thank you very much. Batzli: Thank you. Anyone else like to address the commission? Go ahead. Mary Jo Moore: Living between two associations. Batzli: Can you give you name again. Mary Jo Moore: Excuse me. Mary Jo Moore, Dartmouth Drive. Lake Minnewashta and I do live between two associations. I'm a member of one conforming association. In 1980 I bought off shore and was a member of 1 1 . Planning Commission Meeting May 6, 1992 - Page 27 1 Minnewashta Shores. The meetings for 1981 we discussed in detail your proposed or the city's proposed ordinance on the lake useage. At that time Minnewashta Shores, their covenants authorized 20 boat slips and they have a large piece of property. We at the time had 16 and we discussed in length that the city's going to come through and do an audit. Shall we put" in our 20 boats? Does anybody else want a boat and a dock? We authorized one more dock on a temporary basis which brought us to 17 of our covenanted 20. And we agreed to live by that but we kept track of what the city was II doing and their proposed lake useage. I think every association should. At that time I didn't have a boat but I made sure I had my dock. Never did get a boat in on that association so I think it is something that was II thought through by associations that were apprised of what was going on. And I think the Council and the Planning Commission did a thorough job in 1981. There is documented evidence of the number of boats in all these associations and to start changing them now, I don't think is fair to the I associations that did abide by the ordinance. I again will state my objection to any expansion beyond the 1981 number. Batzli: Okay, thank you. Anyone else like to address the commission? ' Ann Cathcart: Can I say one other thing? Batzli: Let me, if no one else is going to speak, then you can. Yes sir. II David Tester: I've lived in the Trolls Glen neighborhood. I was one of thll first. Batzli: Can you give us your name please. David Tester: I'm sorry. David Tester. I'm a dentist in Chanhassen. I've been practicing here for 22 years and I feel good about it. I like Chanhassen but the original beachlot, Trolls Glen beachlot is unique because there are homeowners that have frontage and homeowners that don't have frontage. Now John Herz is a homeowner without frontage really but he bought an adjacent lot so he has frontage that's actually a part, it's adjacent to the beachlot to the west which isn't part of our total neighborhood. Actually I don't think he's doing this in his best interest because his house is in Trolls Glen and he doesn't want a marina in front of his house and I can understand the people that live on the lake viewing II a marina. This is something that they're concerned of but presently I think there's 12 homeowners and there's 4 boats presently there. That were for the past 5 or 6 years so 4 isn't an expanded useage as far as I'm concerned. There's 2 fishing boats and there's 2 boats that are on lifts. II They're considered speed boats or motor boats but I would venture to say on any given day or weekend, there's not more than one party on that particular lot other than on July 4th when there's a fireworks. One of then adjacent neighbors does have that. So this isn't a problem of over useage. I'm just thinking as the community expands, we're maybe going to have to give a little more leeway to certain parties and we're going to have make some accommodations. I don't see a danger factor because there's not that kind of traffic on that beachlot. This particular beachlot had mooring in the covenants. The other one that proceeded us, had no mooring rights at j all. This is part and parcel of that. And'even though it's non- conformin conforming is something that's an item that can change. A beachlot's size 1 Planning Commission Meeting May 6, 1992 - Page 28 and conformity, the lot size may vary down the years. These are things that are always going to change but at the present rate, the useage that that lot gets is minimal. And as far as a safety factor, I personally don't see one. I think the adjacent property owners that do have lakeshore are concerned about a marina but we've, in good faith tried to not see that that happens and we don't want a bunch of boats down there. We realize that it will only hold a certain number of boats safely and I feel that 4 ' boats is well within the realm of operability. Thank you. Batzli: Thank you. Anyone else like to address the commission? ' Terry Johnson: Good evening. My name is Terry Johnson and I live at 3898 Lone Cedar. I abut the association that we're talking about on the south side. My first point is that I would beg to differ with Mr. Tester who was I just here. To the fact that the lot is not overused and there's not that many boats down there. He lives across the lake and from his house I don't believe he can see the lake. I live right on the lake. I'm there every ' day. I office out of my house. I probably, I spend a good portion of the day at my house officing out of there. And I see the action that goes on there. It seems to me, in my opinion, that there's a considerable amount of action down there which is fine. I like to see the people coming and ' going but it seems like there's a lot of people down there. In fact, I believe it was in January we just enacted some covenants that regulated the amount of use at the lot and regulated the amount of hours that we use the lot just because of the fact that there was so much useage down there and there was people that were friends of people that lived in the association that would come down there with permission of the owner or of the lot that belonged to the association or not. So one of the things that we enacted in the covenants was that the owner of the lot that's part of the association would have to be with that particular party whenever they're down there. Whether it's their friends or relatives or so on or so forth. 5o my feeling is that I don't want to see this expanded beyond the 2 boats that are grandfathered in there from the 1981 baseline. This is similar to the other association that you saw previous to us in that this is only 60 some feet of shoreline which is well below what the city would allow for a beachlot out there now and they would allow no boats on it. So my feeling is that it's fine to grandfather the 2 boats that are there now or for 2 people to trade off using boats there but to not expand that. And if I could just approach you, I'd like to show you this lot and the position of my house and how this lot sits. It's really kind of unique. Different from the one that you just saw. Is that okay? This is the lake out here. ' This is my lot here. This is John Merz' lot. This is the association lot that comes in this circle here and down. I believe this is about 15 feet. There are steps here and this is actually... So the other point I wanted to make is that from the shoreline where the lake is, right now the water level is right now which is, I don't know if it's the high water point or not. The back of the lot, this is my lot back here. And I'm surrounded by the association. Anyway, from this point here to where the lake is is ' about 30 feet. I just got the tape measurer and marked it off. And these lot lines here that John was explaining to you, they angle in. Maybe it's hard to tell from this drawing but they angle in and we, he's got some kind of scope that he uses in his business. I don't know what it's called but anyway, he was down there and set this thing up and we ran it out approximate distance of the docks. I believe it was about 70 feet or so. 1 Planning Commission Meeting May 6, 1992 - Page 29 1 We put some posts... We're starting to set up our docks. The association" set up part of their dock tonight and I put mine in about a week ago. Anyway, we want to conform to this 10 foot setback. And as you get out to the end of where these docks would be, there's only 35 feet of space that II they would have between my lot and John's lot, which is next to it. He's got the lot here. My feeling is it really wouldn't accommodate more than one lift and a boat and it may be difficult for them to put any more than one boat out.there actually. But I said that my feeling is fine, there's II one power boat. Possibly one fishing boat is my feeling on it. But anyway, the other point that I wanted to make. When you saw this...is that by allowing any more boats out there on any more lifts, right now they use" 2 lifts out there and the one dock. With the way that the weather's been around here lately, there's about 9 months of winter and 3 months of summer. Well anyway, in the winter months, they've got their dock and the lifts up on this association lot which you can see there is rather narrow." And it encompasses the whole association property there at the beach. And really for them to get down and to use his property, the other 8 or 9 months of the year when we're not using the lake or when the lake isn't , open, people have got to walk around my property pretty much to get on there. I don't mind it. I don't mind my neighbors coming on my property. 1 don't mind that their picnic table's been on my property. The only thin I'd ask is they bring an extra beer when they come over there. ...very unique. I think it's a little bit different than the association that you just saw up here previous to us and I think it's a little bit more unique than the ones that you're going to see here in the future in that it is so narrow. So my feeling is that it shouldn't be any more non - conforming tha it already is. 2 boats to me is fine. I don't think it's fair to expand it to 4 boats. The other point I wanted to make was, you mentioned about raft out at the other association lot. I've got a raft that I put out there that I invited the neighborhood to use and they have used and I hope will continue to use my raft. I'm happy to have anybody in my neighborhoo use it. As you expand this particular lot here and as I said, it's 35 fee narrow out at about 70 or 80 feet. With boats coming and going and like I say, I'm there a lot. I office out of my house. I'm in sales. The people using the beach and swimming from John's beach as you look at that lot. He's on the north side and myself on the south and people using the association's swimming out to my raft, with the boats coming and going, my feeling is it just isn't safe. I guess with that I really don't have anything else to say unless you have any questions of me. Emmings: I just have one. When you moved, when did you move into your property? ' Terry Johnson: I've been there about 6 years so it was about '85 when I moved in. ' Emmings: And when you moved in, I see in your affidavit that when you moved in there was a 64 foot dock there and three boats. Is that right? Terry Johnson: No. When I moved in there was a dock that, 64 feet. I'm II not sure of the amount of feet on it. That hasn't been expanded to my knowledge since I've lived there but there was only 2 boats there. Two power boats were there. In fact, I think there's depositions to that fact that. 1 Planning Commission Meeting g n t ng May 6, 1992 - Page 30 Emmings: Okay, I'm looking at your affidavit. The materials that says ' from my personal observation, Outlot B has been put to the following uses during the summers of the years set forth. It says 1986. One 64 foot dock, an additional section of dock and third power boat. Terry Johnson: Then it was misprinted. Emmings: This is wrong? Terry Johnson: Yeah. ' Emmings: Your affidavit is wrong? - Terry Johnson: Yeah. Somebody must have written it wrong. I may have signed it... There's never been 3 power boats there since I've lived there. When I first moved there, there was 2 power boats and then it was about 2 years later that a fishing boat was put out there with a lift. In fact the guy, I swapped him his canoe for my lift. There was a lift that ' came along with my lot so they put that over there and then there was 3 lifts on the association lot. Then he sold it because he moved the next year and got more money than the canoe was worth and I'm still upset about ' that. But regardless, then there was just the two power boats again. I believe it was for a year or two until the Firms moved in and then they brought a fishing boat down there and then again it was 3 boats, 2 power ' boats and a fishing boat. Then it was I believe 2 years ago that Dan Hudson moved in and added the other fishing boat. So for the past 2 years it's been 2 speed boats and 2 fishing boats, 2 lifts. ' Farmakes: Are the fishing boats left at the dock or are they brought up on land? Terry Johnson: I'd say both. I think for the most part Dan Hudson would bring his up on shore. The other fishing boat was tied onto the dock and then the two speed boats were set on either side of the dock. So really it limited the swimming area and I think that's been one of the bone of ' contentions for some of the people in the association. The fact that there really wasn't any room for swimming there and it was really pretty narrow for them to have to come out. Especially now with the setback, it's going to make it real difficult for them. I don't have a problem with them coming over to my side or the setback to swim on my side but still, it's going to be really narrow. I put my dock on the north side of my lot using the setback now this year so that I can make my beach a little bit bigger. I've only got 85 feet of lakeshore. Farmakes: What about boat storage? Terry Johnson: Pardon me? Farmakes: Boat storage. Terry Johnson: They don't leave their boats. Farmakes: ...boat storage that was made? Pulling it on the property. . Planning Commission Meeting May 6, 1992 - Page 31 1 Terry Johnson: The problem that I had was the lifts. Because of the fact that this property is so narrow down there at the lake. It's a big steep hill in fact. I maybe should have explained that to you when I showed you the drawing. There's a big steep hill that comes down and it's real narro down there. And with the lifts there and these two docks, they come apart so they sit side by side and then there's two lifts down there. There really isn't any room for anybody to use this property in the wintertime or the winter months, which like I said amounts to about 8 or 9 months out of II the year. Batzli: Are there boats stored down there? Terry Johnson: Right now? Batzli: Are any boats stored down there over the winter months? , Terry Johnson: No. Not to my knowledge. There was a canoe rack there. We took it out. It happened to be on my property. In fact right now the II sidewalk going to the association lot, part of it sits on my' property and I've asked for someday in my life that that would be moved. Farmakes: So if there were 2 boats moored or docked on a dock, the 64 feet, or whatever, how many watercraft were stored on land there in addition to the 2 boats? Terry Johnson: Are you talking about last year in 1981 or what time frame II are you talking about? Farmakes: Give me both. ' Terry Johnson: Okay, in 1981 I didn't live there but from information that I have from the affidavits, there was no boats stored on the shore. There were 2 lifts out at the end of the dock and they were power boats that wer out there. Since then, really to my knowledge there's been no boats on the shoreline until the last couple years. One of the individuals that has a II fishing boat would bring his boat up and just leave it on the shore there and there would be one boat, and this is the last couple years now. There would be one boat, fishing boat on the dock. The 2 speed boats at the end and then the one fishing boat was pulled up on the shore. Farmakes: So they were stored there overnight then? Terry Johnson: Periodically, yes. Batzli: Thank you. Anyone else like to address the commission? You can 1 have like 2 minutes of rebuttal here. Ann Cathcart: I'm Ann Cathcart again. We've been living this nightmare for about 2 years but I want to close by saying, the attorney for the association in our final memorandum to the court and affidavit said, this is what the plaintiffs alleged in the lawsuit. There is in essence, a state of anarchy with respect to use of the outlot. We do not know what II plaintiffs are talking about. This is a quiet beach with a few boats. Thell association manages the lot and the members use the outlot in a normal 1 Planning Commission Meeting May 6, 1992 - Page 32 manner. Personally we feel that the plaintiffs have brought this suit to harrass us and retaliate against other members because they have failed to get their way. And from the very beginning we have had other meetings. John Merz has offered to buy the association lot. They didn't pay their dues. The lawsuit, since they are also defendants in the case, until we rnet their demands. They offered to, if we met their demands of 2 boats and they offered to pay their fees. So what I want to show you again, this is also in the memorandum that Kate made up. This is a picture of last year in 1991. This is out little dock. Two boats at the end on boat lifts. Two fishing boats tied to the dock on either side. Plenty of room. Can you find it? Also down at the bottom, you can see Terry's pontoon. This is Terry Johnson's pontoon. He did not do the 10 foot setback last year. So when he set back this year, his boat will be out of the picture so you can see there's plenty of room. There's plenty of room to float on rafts and innertubes. We think what should be grandfathered in is what was in the Minutes of 1981. Thank you. Batzli: Thank you. Anyone else like to address the commission? I'll ask for brevity. Ivan Underdahl: Well I hope I can grant it. My name is Ivan Underdahl. I live at 7502 West 77th Street and a member of the Trolls Glen Homeowners Association. I guess I would like to start out by saying, I agree with some of the things that John Merz has said and that Terry Johnson have said but not necessarily with all. As far as the storage over the winter season, I don't think this beachlot is much of any different than the adjoining property lots. Their own lots. That's where they store their equipment too and I don't think anybody is restricted from getting down from the upper bank, down the steps and out to the lake. There's plenty of room. I don't know what kind of equipment or such would try to get through there that wouldn't be able to get through there. And I don't think it's really a crossroad traffic area in the wintertime. In fact I don't know who really uses that association outlot in the winter at all. It might be the neighbors on either side wanting to get back and forth to their own properties but even so, they can do that without problem too as far as I see it. This is, we're not complaining I guess you might say about this 10 foot setback. We understand that. That may not have been fully regarded in years past but I think now we are aware of it and I know John has set up the transit and laid out the lines and I don't dispute the accuracy of those findings. I guess I wasn't sure what he stated as far as the width between those stakes out there at the 80 foot distance. John Merz: Ivan, it's kind of hard to see on that little plat but there's an angle...straight to the lake line. The one severely goes in and the other one is just a few degrees but...80 feet, they narrow to 60 at the lake lot. Now it's 35 feet plus or minus a foot 80 feet out... To the best of my knowledge, that's accurate. ' Ivan Underdahl: Alright, it's about 69 feet at the high water mark and as he says, then going out to a distance of 80 feet, there's a 35 foot width. That's the angulation. I think also, I don't know if it's the DNR or cities or whatever. Can make exceptions when properties are restricted in such a way that they are very limited in our access to the lake. And as far as going out 80 feet, we don't go out that far. Our dock is 64 feet Planning Commission Meeting II May 6, 1992 - Page 33 f long and that's as far out as anything goes. And I know the term mooring and docking has been used perhaps interchangeably here but I don't think II there has ever been any intent on the part of our association to moor boats, if you're just referring to having a stake or a buoy or such out on the lake for mooring. We're talking about docking boats. And in the past ' 2 years there have been 4 boats I would say docked at this 64 foot dock and I don't feel it's been a problem. And I guess I understood from the Council that,as far as going through this permit process, it was probably to be or the 1981 baseline was sort of the starting point for the I negotiating and if there were differences, they should be worked upon and that the applicants would be given the benefit of the doubt. And I guess I would like to pursue that aspect. I think our asking for 4 boats is not II unreasonable. And with respect to, well the matter was raised about perhaps another dock and boat also being on the property. I have some pictures here that I would like to have you see and if I can come forward, I'll show you. , Batzli: Sure. Ivan Underdahl: I'll point out a couple things. Here I have, I've written, on the back, that's the original, as to when—. Emmings: It doesn't say anything on this one. II Ivan Underdahl: No but it's a reprint of the one I took out of my album on which I wrote it was taken in the fall of 1981. II Emmings: Okay. So this represents fall of 1981? Ivan Underdahl: That's right. II Emmings: Okay, we'll pass that around. ' Ivan Underdahl: Then if you just place this card over it... Hold it just like that and notice the figures I have there. I measured the width of those boat lifts...and there's a 23 foot span from the outer edge of one til the outer edge of the other. And this was at a time when we did not pay attention to the 10 foot setback. This is right up at the end of John Merz' property line. In fact it may have been on his a little bit so I'm showing that if you take another 23 feet further to the right, it goes off il the picture and that other boat...in there. And here's another angle... Batzli: Well thank you very much. Do you need your picture back? 1 Ivan Underdahl: I'll get my picture back... Batzli: I'll lose it. If you're going to give it to us, give it to Kate. II Mr. Underdahl, are you finished? Ivan Underdahl: Unless you have any other questions. II Batzli: We may. We still need to get through the public hearing. Is there anyone else who hasn't spoken that would like to address the Commission? Okay, please be brief and please limit yourself to new issues. II Planning Commission Meeting May 6, 1992 - Page 34 Bernie Schneider: I'm Bernie Schneider. I live at 7501 West 77th in ' Trolls Glen. I think that the Planning Commission should consider the 1975 City Council granting us, Trolls Glen residents mooring rights. That's in our covenant and I wish that the Planning Commission would request the City Attorney to give a ruling as to whether our covenants supersede the ordinance amendment. We were advised that, in a court of law, our covenants would prevail. That's all I have to say. ' Batzli: Thank you. Any more comments? Is this something new? Okay, I'll give you about 30 seconds. Terry Johnson: I'll make it quick. Jeff had asked about where the boats are moored. I've got a picture here that shows the boat up on the, this - was last summer, where he stored his, the other fishing boat and the two lifts. Batzli: You guys want to see where it was last summer? If there's no more public comment, do I have a motion to close the public hearing? Erhart moved, Emmings seconded to close the public hearing. All voted in favor and the motion carried. The public hearing was closed. Erhart: What are we deciding? Did we decide if there was ever 4 boats there? Aanenson: There wasn't a survey done in 1981. All we presented you is their affidavits stating what was in place. Staff didn't do a survey in 1981. ' Batzli: I don't believe that even the association would, well unless you count that separate dock who was a neighbor, who was either accidentally or intentionally docked there but the association itself, as an association, did not have 4 boats on the property at that time. Is that a fair statement? Resident: Yep. Erhart: Okay, and what was, 1975 was when they were granted with the ' beachiot. What did we have, no definition of what they could use it for? Aanenson: When the beachiot was in place? ' Erhart: When the development was done. We didn't at the time regulate how many boats? We had no ordinance? Was 1981 the first ordinance? ' Aanenson: Yes. Erhart: Okay. And so we had no covenant. There was no covenant with the city and the beachiot owners before 1981? There's no legal? Aanenson: They have a covenant, yes. Erhart: Between themselves. 11 Planning Commission Meeting May 6, 1992 - Page 35 Aanenson: As part of the subdivision, yes. Erhart: And that doesn't reference how many boats or anything? Aanenson: No. It just says boats shall be moored in the common area. As designated by the association. That's what they're saying. Their intent was always 4. Erhart: Then in 1981 we came out with our first beachlot ordinance? ' Aanenson: Correct. Erhart: At that time it was non - conforming at that point? Aanenson: Right. What we did, and let's go back to the grandfathering. What we did is we tried to take a picture in time of what they had in place' and that's what they're grandfathered with and that's what, when we were asked back in 1991 on the complaint to go back and say you were not in II compliance with the grandfathering, the attorney did say we could enforce what they had in place in 1981. So that issue was raised as far as can we enforce what they have in their covenants. The new ordinance can supersede what they had in place in 1981. ' Erhart: Okay, the ordinance on the 10 foot setback now for dock and mooring. Did you find that the extended lot, is it an extended straight lot line or is it perpendicular to the shore? Aanenson: Somewhere they're all supposed to meet in the middle of the lake. Erhart: So perpendicular to the shore. So this 35 feet is irrelevant. Aanenson: Again, I know Dick was concerned about this but in speaking with' Roger, this comes back to the grandfathering issue. Okay? If that's the way the dock was built in 1981 and they continued to put the dock in place the same way since 1981, they can have the dock the same way. If they had moved the dock. Erhart: No the point is, the argument is where is this lot line out in the water? And this gentleman over here contends that it comes to a point that's approximately 120 feet from the shore and you're saying that they all end up at the same point out in the middle. 1 Aanenson: They all end up, they meet eventually in the middle of the lake. I don't know. Erhart: Some point. All at the same point in the middle of the lake. Aanenson: No, no, no. , Erhart: Well, not at the same point but at a point perpendicular to the general shore in the area. 1 Planning Commission Meeting May 6, 1992 - Page 36 Conrad: They don't follow the lot line. They're perpendicular. I don't ' think they follow the lot line. Ahrens: It depends on different... 1 Emmings: I thought you extended the lot line. Conrad: No. You go at a right angle to the lakeshore. 1 Batzli: Dick, do you know the answer to that? Richard Wing: The Attorney discussed that. He said there was an issue with the angle of a curved bay but you basically...imaginery point just right in with the shoreline...because we're only worried about the first few feet. Because a raft's out in 8 feet of water. The concern about how ' can we do it. I'm kind of losing my thought here...We could have it surveyed officially. That part then goes perpendicular to the shoreline or right angle to the shoreline out...so there wasn't any angle there... 1 Erhart: It's only reasonable to have it perpendicular to the shoreline instead of using it at some angle. That's the only questions I had. Batzli: Ladd. Let's add another criteria to our list of going through those and those are that we concentrate on the little blank lines on the action that we have to take. I think it's on the page you're looking at there Ladd. Conrad: Since the standard for a dock length is 50 feet and they've had 64. I guess if they've never deviated from 64, that's what they can have. I guess I'm still, I'm comfortable at what was there in 1981 and would be persuaded by the City Attorney if they said the covenants or, but I don't believe the City Attorney would say that we're bound by covenants entered into with themselves. Prior to 1981 beachlots had no rights for dockage. So I'm not persuaded that anything prior to 1981 really is going to influence me. Erhart: You mean no rights or no regulations? 1 Conrad: They have no rights. Literally prior to 1981. Ahrens: But the document that Kate just read said they did have the right. Conrad: Prior to '81, before the beachlot ordinance went in, literally there was nothing governing what could happen. It therefore meant there were no, my interpretation Joan is that there were no rights to have boats. They were used but prior to 1981 there weren't. That's my understanding. Anyway, I'm comfortable at the two boat limit. Based on 1981 data that we've seen. Batzli: The canoe rack? Conrad: I don't know. Batzli: I'll let you think about that one. Matt? 11 Planning Commission Meeting May 6, 1992 - Page 37 Ledvina: I don't have any comments at this point. Batzli: Would you defer on the ‘2 boat /4 boat issue completely or you just haven't made up your mind? Ledvina: Well, it seems to me that there's some, the affidavits are conflicting as it relates to the number of boats that were docked and moored at this site. Am I mistaken in that? Emmings: I don't think so. I don't think anybody says there were more than 2 boats there in 1981. Ledvina: Okay. Ivan Underdahl: Didn't I just show you pictures of 3 boats? You didn't II see that? Batzli: Yes. Emmings: But that was the neighbor's boat right? Ivan Underdahl: No, he was a member of the Association. It was on the recreational outlot. 1981. I thought you just saw it. Batzli: How that particular boat has been characterised, and I don't want to debate the point right now but it's our understanding that that was not ' an association dock. It happened to be the next door neighbor who had placed his dock temporarily on the Association lot. Or boat. One of the II two. And so it wasn't and it has been considered up until now, when you showed us those photographs, that it was, it hasn't been suggested to us that that was an association boat on the beachlot property. So that's what we're saying. I understand your point. 1 Ledvina: Well I guess my feeling is that the situation as it existed, the physical situation as it existed in 1981 would take precedence so I would, I feel that 2 boats would be allowable. Batzli: Okay, Steve. Emmings: Well on the dock, certainly I think the 64 foot dock should be II continued. I've got a question now. As I understand the request of the Association's, they're asking for 2 boats at the dock and 2 boats moored II and I don't know what that means. Ivan Underdahl: No. No. That form is such that it's got to be based upon the 1981 and it didn't talk about new... Emmings: I'm not talking about the application. Ann Cathcart: You want to see it just like the picture in 1981... Emmings: Okay. Who's speaking for the Association? Let's get, are you ma'am? 1 Planning Commission Meeting May 6, 1992 - Page 38 Ann Cathcart: Yes. 1 Emmings: Okay. On the information that we have on the sheet in front of us, it says you're asking for 2 boats moored and 2 boats docked and that's ' what your letter says I think. Ann Cathcart: Our letter says we want 4 boats docked. 4 boats. Therefore it is time we request a permit for mooring 4 boats. ' Emmings: Alright. I have to change my report. Ann Cathcart: And based on...really what we physically... Emmings: No, I know the argument. I just want to be clear on what you're asking for. Alright. My position on this is that going, again. I'm ' pushing for a case by case deal here, and not getting too tied to the physical inventory. The Statutue or the ordinance that we passed says that we've got to look at the use as it existed on or before January 18, 1982. ' So we're basically, we're not just looking at 1981. We're looking at the uses that existed on or before January 18, 1982. Now it's pretty clear to me that they had 2 boats in 1981, and if you want to get real picky and go ' with that, we don't actually have an inventory but that's been proven in other proceedings. So we know there were 2 boats there. But I'm persuaded by the fact that in 1975 there were covenants approved by the City that said that these folks could have boats at their beachlot and that was a matter to be determined by them. We've got Minutes from a meeting in June of 1981 where they said we're going to have 4 boats out here. Right then they had only 2 but they planned for 4 and I don't think that ought to be ignored because again, I don't think it's unreasonable. I might think it was unreasonable if I was looking right at it but that's a little different. I just don't think it's an unreasonable use of the property and I don't think we should ignore the fact that they planned for 4 boats. So given that, I would say go with the 4 boats on this one. Again, if we're going to go strictly by the physical inventory, they don't get a canoe rack because they didn't have one in 1981. But that seems like a real reasonable use for a neighborhood for folks who have a beachlot and want to use the lake. I can't see that some canoes are going to bother anybody very much. So because it's reasonable, I think it should be granted. Batzli: Jeff. Farmakes: We haven't talked too much about this boat storage issue. What I'm trying to do, it's a confusing issue. I think everybody will agree. We're talking about requests that you moor 2 boats, that you dock 2 boats and that you would store some boats on the shore. You're shaking your head back and forth but the difference between 1986 and 1981 differs quite a bit from the affidavits that I'm hearing. ' Ann Cathcart: We always...taken up. Farmakes: Taken up? Is that removed or stored on the property overnight? 11 Ann Cathcart: Stored in somebody's garage. Are you talking about the winter? _ Planning Commission Meeting 11 May 6, 1992 - Page 39 i Farmakes: Winter or overnight. Just boats stored on the property out of the water that are on the property. ' Ann Cathcart: No. No. Terry...on the beach...little kids could get in easier and than jumping in off the dock... Farmakes: There's disagreement obviously. Terry Johnson: You saw the picture. Jeff if you're addressing me. You saw the picture and I can tell you that that individual's boat on numerous II times...summer, it was on the shore. Ann Cathcart: Maybe 3 times Terry. Maybe 3. ' Batzli: Excuse me. Excuse me. Let's get, Jeff. Please. Farmakes: I don't mean to lose track with this but the issue of the 2 boats, I think if that's what was there in 1981, that that's the position • the City should take. The issue of boat storage and so on, I am not, it I doesn't seem like it's that big a lot to be storing boats on there. Batzli: Excuse me. Jeff, please address your comments to me and not the II participants. Farmakes: Okay. I'm not, after reading this, there seems to be a lawsuit involved here. There seems to be bad feelings between the two groups but I, - see this as just an issue of individuals asking the city to enforce an ordinance that they had in 1981. And I don't see that as unreasonable. The City has been lax in enforcing the ordinance and I have looked at your II comments on your letters from the homeowners association. Lakeshore association and you're ignoring simple issues in riparian law. You're looking at it solely from your direction and what's on your deed and the issue of covenants from within your own association while you're ignoring the overlapping jurisdiction of the city and of the State in regards to riparian law. And it seems to me that if you're going to get involved in this and you're going to spend $13,000.00 with a lawyer, then you should II have had some education in regards to that because your letter obviously is showing that you're not understanding riparian law. Even though it's on your deed, and I checked with the State on this today. Even though it's on your deed and you've had it on your deed, doesn't mean you can use it. Andll that's an important point. What you're ignoring here is the obligation of the fact that you've been not in compliance with the city zoning ordinance which the city is entitled lawfully to have for the past decade. You're having another adjacent homeowner asking that the ordinance be enforced and it's not unreasonable. I'll leave it at that. I think that there should be 2 boats there and this lot is even, it seems to me able to handle less than the previous one. Batzli: Thank you. Joan. 1 Ahrens: I'm going to go along with the applicant's request for the same reasons articulated by Steve. Planning Commission Meeting May 6, 1992 - Page 40 Batzli: Okay. What I'm looking at is a little bit different than Steve but yet I would go back to my, at least proposed way of looking at these and that is, I think we've got a lot of testimony. I don't know that there are a lot of conflicting opinions on it. I think we've seen photographs ' from Mr. Underdahl and that boats were on the beach at that time that he took the picture. We've seen a lot of this. But what I'm going to look at is the ordinance that talks about what is the use, and this may sound like I'm about to split the baby but clearly there was 3 boats on that lot prior ' to 1982 and so I don't believe we're intensifying the use by giving them 3 boats. 4 boats is intensifying the use. The question of whether that's reasonable or not, I don't know. I grew up on a lake and once you have 3 boats, is 4 an intensification? I don't really know but I'm not going to make that decision to say that it's not. So I would actually split the - baby and go with 3. The 64 foot dock is fine. I think the canoe racks would not intensify the use. It sounds like they've been there before. Didn't sound to me like the neighbors had a problem with the canoe racks in and of themselves. That's where I'd go on it. As far as procedure on these Kate, what do you need from us? Do you need a motion? ' Aanenson: Yeah, with your recommendation for those blanks. What you want to pass on. ' Batzli: Okay. I would entertain a motion from anyone or if somebody wants to discuss it further prior to making a motion. ' John Merz: Mr. Chairman, may I ask just one thing? I think there's been a little bit of miscommunication. My attorney had a memorandum. An 8 page memorandum that apparently none of you have ever seen and it should strictly clarify what this vote should be. Before you take the question of the vote may be misunderstood it's intention but the big packet of documentation which you have there was not for general distribution but ' only for it to be available. ...8 page memorandum there that clearly delineates all these questions and I think it would be unfair for you not to at least maybe publicly read it. Not myself but somebody read it prior to you taking the vote. Batzli: Well what I'm going to do is I'm going to have this placed in the Minutes so it will be entered. It will be part of the record and so it will be available for the Council. If in fact what we determine is not, and I apologize for not having that in front of us. I don't know that at this point we can take a long enough recess to read it and I apologize that to the extent but you can make it part of the record. It will be part of the record and to the extent that, and I guess I would encourage the Council to take a look at it to the extent that what we determine tonight is adverse to what your attorney has written here. Is that? That's what we can do. John Merz: ...8 pages takes all the speculation out of it. Emmings: No it doesn't because I write memorandums for a living and I'll take either side of any question and produce an 8 page memoranda or 20. So that tells one half the story and they probably have a memoranda from their attorney that addresses the other side of the question. So it really wouldn't do us any good to read half of it. 11 Planning Commission Meeting May 6, 1992 - Page 41 1 John Merz: Then I'll ask to make it part of the record if you can address in it. Batzli: It will be. And again, I apologize for not having that in front of us. I don't know, we can't do anything with that at this point. ' Conrad: Mr. Chairman, would you explain why you feel that 3 was documented? , Batzli: I'm looking at the evidence that Mr. Underdahl presented. That there was a third boat on the property being used so there was a use on that property of 3 boats. The Statute looks at what was the use prior to II January of 1982. It appears that there were was a use of 3 boats. Conrad: The third boat was at that dock? ' Batzli: Well, no. It was on the property line from his calculations. It was within the property line being stored somehow on a lift, moored, whatever at the property. I mean it's a matter of interpretation Ladd. We're each looking at the evidence. We're each weighing, you're looking at it's probative value trying to decide what is the correct answer here. I'm looking at it. I'm saying it looks to me like there was 3 boats. That wall the use. I don't think I'm intensifying it anymore than what existed at that time. I don't know that there was, that that boat existed. - Erhart: How do you know the guy just wasn't swimming on it. 1 Conrad: Yeah you know. There's a dock and there are 2 boats on the dock that is owned by the recreational beachlot. I don't know how you can even II guess where that other boat is. Batzli: I'm taking Mr. Underdahl's calculations at their face value. Now, I you don't have to take those. I mean you can... Conrad: No, I think use is important to me and that's what I'm concerned with. I'm also concerned with the fact that this is a 3,000 square foot lot. Ann Cathcart: No, it's 5,000. That's the whole point. 1 Conrad: But let me, I'll just say another thing and I understand your point but typically today, unless you had 20,000 feet, you wouldn't. So your not even 25% of what we would grant as a beachlot today. Not even 25% so that's why I'm a little bit more sensitive to the neighbors on this one because it's a very small beachlot and it's tiny and to be honest, 10 years ago, 12 years ago it was this type of thing that started making us develop I a beachlot ordinance. And what I want to do is protect as many rights as you have yet enforce some of the intent or at least project some of the intent. We're trying to protect neighbors and also trying to protect the 1 lake a little bit. But I go back, I want to make sure. Brian, I think I could justify, I could go with 3 boats simply because a riparian. I always use what a riparian lot owner could get because that's how that developer could have developed that lot. And that has a tendency to protect the lake in terms of use. In terms of how some dangerous safety issues but also 1 Planning Commission Meeting May 6, 1992 - Page 42 just simply from preserving and protecting the lake. So I use that as a guideline so I think in my mind we could go that route and say they deserved what the riparian, typical riparian lot might get. On the other hand, I'm not convinced that, I go back to what I saw for 1981 and I see 2 ' boats. I think on a small property like this, it's just teeny. In anybody's standards I think the 2 boats seems more reasonable than the 3. I was curious where you got the 3 Brian and I thank you for that. I will make a motion. We'll see where this one goes. I make a motion that the non - conforming recreational beachlot permit from Trolls Glen be approved with the exception of a total of 2 boats be allowed. ' Batzli: Is there a second to the motion? Erhart: I'll second it. 1 Batzli: Discussion. Farmakes: I'd like to clarify one thing. Is that moored or docked? Conrad: I don't care. ' Batzli: Steve, any discussion? Emmings: No. All I can do is repeat myself. Do you want me to do that? 1 Batzli: No. Conrad moved, Erhart seconded that the Planning Commission recommend to ' approve the Non - Conforming Use Permit for the Recreational Beachlot for Trolls Glen Homeowners Association with the 64 foot dock, 1 canoe rack, 2 boats docked or moored, and a swimming beach. Conrad, Erhart, Ledvina and ' Farmakes voted in favor. Batzli, Emmings and Ahrens voted in opposition. The motion carried with a vote of 4 to 3. Batzli: Would you like to state your objections? Ahrens: I have a real problem. You know we're dealing with a situation where there's a 1975 covenant approved by the City telling this association that they can set up, they can have mooring rights on the lake and that the association can control it and make up their own rules and then we come along and say, we were only kidding. You can't really do that. I just don't see how we can. Erhart: If someone owned the lot in 1975, how many boats could they have at their dock? 1 Ahrens: We didn't set that forth. I Erhart: No, but now we do right? 'Ahrens: Yeah. Erhart: So the same argument would say that somebody owned a house on the lake in 1975, that we can't regulate. i 11 Planning Commission Meeting May 6, 1992 - Page 43 Ahrens: Right, but we're saying that in 1981, we're going to take the I numbers you had in 1981. That association has Minutes from their meeting authorizing them to use 4 boats. Emmings: You already won Tim. She's just stating her position. 1 Erhart: I know. Batzli: Anything else Joan? 1 Ahrens: And that was their use in 1981 and I think that's what we should go with instead of making something up out of the blue. • Erhart: I'm trying to understand this Steve too. This is very confusing. Batzli: Steve, do you have anything? 1 Emmings: I think this case is different again because we have a document here that shows what they were proposing to do. I think it's reasonable. I think we're running a risk here of getting way too strict and legalistic. Oh, the picture shows 2 boats, so it's 2 boats. Now in some cases those 2 boats might be reasonable and for some of the reasons Ladd outlined, that 1 might be reasonable on this lot but it just, I have a little different opinion there. I think 4 boats is okay on this lot and that's what I would grant. That's all. Batzli: My sentiment is not that I don't care as much what their intent was. I think we can regulate and like Tim said, but I at least take the I evidence that they were able to present at it's face value and what they were telling us so that's why I would give them 3. Other than that, I agree with the motion. It's the number of boats that's the issue. Okay, this will go onto City Council when? 1 Aanenson: May 18th. Batzli: May 18th so please follow the issue to the City Council. They will make the final determination. Thank you for coming in. PUBLIC HEARING: ZONING.ORDINANCE AMENDMENT TO AMEND CHAPTER 20 OF THE CITY CODE PERTAINING TO MINING AND EARTH WORK. Sharmin Al -Jaff presented the staff report on this item. Chairman Batzli called the public hearing to order. There was no one present wishing to speak on this item. Erhart moved, Emmings seconded to close the public hearing. All voted in favor and the motion carried. The public hearing was closed. Batzli: Any discussion? Anyone have any comments? Is there a motion? 1 11 �t } • UNEDITE1 - CHANHASSEN PLANNING COMMISSION REGULAR MEETING 1 MAY 6, 1992 I Chairman Batzli called the meeting to order at 7:40 p.m.. MEMBERS PRESENT: Tim Erhart, Ladd Conrad, Matt Ledvina, Steve Emmi Brian Batzli, Jeff Farmakes and Joan Ahrens I STAFF PRESENT: Kate Aanenson, Planner II; Sharmin Al -Jaff, Planner I; and Dave Hempel, Sr. Engineering Technician BACKGROUND MEMORANDUM REGARDING RECREATIONAL BEACHLOT NON- CONFORMING USE -' PERMITS. Batzli: Did you want to say anything on this? II Aanenson: Yeah. I'd just like to make sure we're all clear on the process that we're going through here. I mean this is for the benefit of the audience too but as you recall, we went through whether or not we should go II with the 1981 or 1991 inventory and the Council back in February 24th adopted the 1981 status is what we should go back as a beachlot. So what we're trying to do here tonight is determine what was in place and was grandfathered in 1981. Now not all of the things in a beachlot can be II - corrected. Making them non - conforming. We can't go back and increase the acreage or the frontage or those sorts of things so what we're trying to look at here and what we've highlighted for you is the things that we can -! - try to bring back to what was it was like in 1981. Mostly that falls in the category of the boats and the length of the dock, but also includes some other things like swimming rafts. We tried to highlight those in the memo. In addition, the concern came up that the ordinance does say that I you've got one year to come into compliance. Now we've asked people to try to come through this process but to be fair because we won't be able to get II through all the process maybe until the end of August. That really the ordinance does say you've got one year to come into compliance so we felt it would be fair that even though we've taking them through the process now, that they become effective February 24th of 1993. So they'd all be II consistent whether they go through first or last. So if everybody's clear with the process, that's the route we'll be taking. I Conrad: Can we impose additional conditions? Aanenson: I think the intent is to go back to try to establish what they were grandfathered in with. Some of them have conditional uses on them 11 like have come in for separate conditional uses like a portable toilet or something like that. Under those circumstances, I would think you could do that. II Batzli: Do you want to reask your question? Conrad: I'm thinking about how to pull the lots more into conformity or more under the intent of the ordinance. Maybe not into the letter of the law but at least trying to assume that which would mean issues like buffering. 1 - 1 r i Planning Commission Meeting May 6, 1992 - Page 2 ' Batzli: So if for example there's a dispute as to whether there was 2 or 4 boats, just by way of example, and you decided to go to 4 boats, would you need additional buffering as a condition? ' Conrad: Something like that. Aanenson: It sounds like a question for the attorney. I'm not sure. We're looking at grandfathering. If we're moving outside of that arena to go into looking at a separate conditional use, because we're trying to create a non - conforming permit. I'm not really sure on that. I guess we would make a recommendation to the City Council and we can make that determination at that point. Batzli: Okay. Having said that, we'll move along to the first public ' hearing. PUBLIC HEARING: NON — CONFORMING USE PERMIT FOR A RECREATIONAL BEACHLOT FOR MINNEWASHTA CREEK HOMEOWNERS ASSOCIATION. Public Present: Name Address Mary Jo Moore 3231 Dartmouth Drive Dana Johnson Minnewashta Parkway Ken Hannemann 6580 Joshua Circle ' Billie Windschitl Terry Thompson Minnewashta Creek Association Minnewashta Creek Association Aanenson: I'd just like to make a couple points of clarification on this. There was some misunderstanding between the Homeowners Association and the staff. There is a pontoon boat being moored on the site. We kept asking who it belongs to because the adjoining property owner, Mr. Johnson is concerned because it appears that it's really on his property. We kept asking the association, is it their boat? No, it's not their boat. Well they were misunderstanding what they were saying. Yes, it belongs to someone in the association but it's not the association's boat. So there is a pontoon boat out there. Farmakes: Did that person live? Aanenson: In the association, yes. Farmakes: They belong to the association but do they live there? Aanenson: Yes. Yes he does. So the application that you have before you shows no. They're requesting no boats because they felt like that's what they had in 1981. But the gentleman here that has the boat is requesting that he be able to maintain that boat. 11 Batzli: You're getting ahead of me a little bit. Let's back up. The way we will conduct the hearings is I will first ask for a staff report. If there are any issues that need further explanation and then I will request it Planning Commission Meeting May 6, 1992 - Page 3 i that the Association representative address us if they so desire at that time. We'd like to hear your suggestions or comments regarding why you believe, if for example you're asking for something that's in addition to what we think was in our 1981 baseline. We'd like you to be able to present those things and be fairly heard but I would ask that you be brief and try to limit your comments to 5 minutes if at all possible and then if there's someone else that feels they have something in addition to and not just state what we've just heard, I'd be happy to hear them as well. If that sounds reasonable. So Kate, if you want to go ahead now. Aanenson: Okay. I'm sorry about that. Okay just so there is a boat on there that they are asking for. I didn't show that in the report, and they' hadn't requested it either. They did come back last summer, excuse me in 1991 to ask for a conditional use for a portable toilet. They do want to maintain that conditional use status. They are asking for the swimming I raft which they didn't have in place in 1981 either. If you look at the sheet where we've shown the permit kind of crossing what we're showing that we recommending. We've shown what they are requesting and then we've left kind of blanks for the issues that you really need to determine. Those being the number of picnic tables, the campfire grills, the swimming beach and the swimming raft. Again, just for some clarification. Batzli: Under the ordinance, what are the numbers that would be allowed II for picnic tables, grills, campfires? Aanenson: We don't have a problem with 4. There's no restriction on that" I just want to make one point too. I'm not sure if it's clear on the cover that their covenants, which I have included in here stated, which they cam back to the City in 1979, stated that there would be no structures erected or maintained upon the property. No docks, piers, boat racks, or canoe racks will be constructed or erected or maintained upon the beachlot. That was part of their original covenants. ' Batzli: Would the Association representative like to address us at this time? Ken Hannemann: Sure. Batzli: If you could give us your name please. 1 Ken Hannemann: My name is Ken Hannemann and I'm the co- president of the Association. I live at 6580 Joshua Circle. Basically what I've done, I filled out the request form and basically what we've asked for is the raft ' and the portable chemical toilet that we received a conditional use permit last year. There is an issue regarding the number of boats moored and the inventory that was transmitted to us in 1981. We have two homeowners here r tonight who have been residing in our association since 1979 and 1980 and contend that they were grandfathered into and have the right to moor a boat down at the beachlot. One being a pontoon boat, which would be very difficult to move back and forth, in and out of the water. The other just II a normal boat. It's their contention that they have been in the Association prior to the baseline and were led to believe that they could II moor boating out in the water. We're not allowed to have a dock of course so mooring was the only option for them at the time. They are here to 1 - Planning Commission Meeting May 6, 1992 - Page 4 ' speak directly at that issue and I've kind of just summarized the circumstances here. Batzli: Is it the Association's request that you get two boats or are these individuals not acting through the Association? Ken Hannemann: I would say it's the Association's request. I don't think we have a problem with the boats being there. It's an issue with the adjoining properties and so forth. Emmings: Is your Association asking that the boats that are moored be moored in front of the beachlot or continue to be moored in front of other neighboring properties? Ken Hannemann: Well that's a good question because our beachlot is only 60 feet. ' Emmings: And you have a swimming beach, is that right? Ken Hannemann: Right. Emmings: So are you asking that the boats be moored in front of the beachlot or directly out from the beachlot? Ken Hannemann: Yeah. Emmings: That's what the Association wants? You want them moored in your swimming area? Ken Hannemann: Well, they're right on the property line now so it still affords us swimming area off to the side. Emmings: Okay, just wondered. Ken Hannemann: So you may have an issue with the easements and so forth. We haven't had a problem in the past with the pontoon being moored probably right on or a little bit over the property lines. Emmings: You understand that there is a setback from the property line of 10 feet? ' Ken Hannemann: Right. And if that setback were to be imposed, in essense the pontoon would have to sit right in the middle of the lot. And if that's the case, then I guess we couldn't live with that as the Association. Because it would have to sit almost right in the middle of the beachlot so swimmers would have to go around. Emmings: That's why I'm asking the question and I guess I'm clear then on what, does the Association want the pontoon and /or the other boat to be out there but on the property line or over the property line in front of other other neighboring property? ' Ken Hannemann: I would say as close on the property line. Which could be an issue. II Planning Commission Meeting May 6, 1992 - Page 5 1 Emmings: Could be. Ken Hannemann: We do have the two homeowners here that are contending that they be accepted and be inventoried in this 1981 inventory so I would invite them to come up and address the Commission at this time. Billie Windschitl: My name is Billie Windschitl and I've live in Minnewashta Creek Homeowners Association since 1979 and we've had our boat II moored in the water in front of our beachiot. Well actually we had it a little off the boundaries of our beachiot because there was an older women that lived next door to us in this old house and she passed away last year and that's when the new homeowners came. But I heard somebody mention the name Johnson. Now to my knowledge Mr. Johnson doesn't own that property but I don't know. Mr. Lund does. Mr. Ken Lund and Terry and, Mr. Thompson and Brian and I, we've had our boats out there for 12 years and II it's never been a problem. Batzli: Do you have the pontoon boat? ' Billie Windschitl: No. I have the regular boat. Batzli: Okay. Sorry. 1 Billie Windschitl: It's regular. It's like a 16 foot. Batzli: Is this moored on the opposite side of the property then than the II pontoon boat? Billie Windschitl: No, it's like right past the pontoon boat. And they're, not close to, they're nowhere near the swimming area. As far as safety goes, we never ever start our boats anywhere near the swimming area. Only past the swimming raft that's been out there since about 1985. Because nobody would swim out there. In other words, we wouldn't start our motor in the swimming area. I mean I don't know what to say. We've always had our boat there before, let's see it must have been a year before the 1981 II paper so. Emmings: Could I ask you ma'am? Is the 16 foot boat, is it a runabout or what kind of a boat is it? Billie Windschitl: It's like a ski boat. It's a Starcraft. Emmings: And when you say it's moored out there. How is it kept in one II place? Is it on a lift? Billie Windschitl: No. It just has a anchor. 1 Emmings: Is it moored to a buoy? Billie Windschitl: It's anchored in front and in the back. Emmings: Is it in front of the neighboring property? , Billie Windschitl: It was in front of the neighboring property. Planning Commission Meeting May 6, 1992 - Page 6 ' Emmings: Last year? Billie Windschitl: Yes. ' Emmings: Every year? Billie Windschitl: Every year when that older woman lived there because it never bothered her. She never came out of her house. Emmings: And what would you ask us to do about that? Are you asking us, do you want to keep parking your boat in front of the neighboring property? Billie Windschitl: No. ' Emmings: What do you want to do? Billie Windschitl: I just want to leave it in the water so that we can use ' it everyday. Emmings: So then you want it in front of the beachlot? Billie Windschitl: Right. Emmings: And you understand there's a 10 foot setback. 1 - Billie Windschitl: Is it from the beach? Emmings: From the extended lot lines. You extend the lot lines into the water. There's a setback on each side I think of 10 feet. ' Billie Windschitl: So it has to be 10 feet in front the edge of the lot line? ' Emmings: Well that's what the ordinance says. Billie Windschitl: Or 10 feet from the beach? ' Emmings: No. In from the lot line. Billie Windschitl: It's a 70 foot. Emmings: Well regardless of the width, you want it then in the area in front of the beachlot? Billie Windschitl: Right. And you know we've never had a problem with it and I don't know, for us to take our boat in and out every single night, it ' isn't going to make a lot of sense. And if nobody's complaining, I don't understand the problem. Why the problem even came up. Emmings: I think you can see the problem is that the neighbor doesn't want ' it in front of his house. And the Association doesn't want it in front of the beachlot. II Planning Commission Meeting May 6, 1992 - Page 7 1 Billie Windschitl: No, they didn't say that. ' Ken Hannemann: If it has to be in the middle, then we really couldn't. Billie Windschitl: But if you were out far enough, would it make any 1 difference? That's why I mean. I don't think they want it in the swimming area but it's far enough out that you have to swim to it to get to it. Yeah, the pontoon's on a lift. ' Emmings. Okay, thanks. Batzli: Thank you. Anyone else like to address the Planning Commission? II The pontoon boat owner for example. Terry Thompson: No. 1 Batzli: No? Okay. Anyone else like to address the Commission? Dana Johnson: My name is Dana Johnson. I've just acquired the property II next to these people. Back in 1991 they came to one of the Planning Commission's, just like this tonight, and they objected to me about having" two docks on my property. Me and Ken Lund and so we did get set back to have just one dock and the reason was because of the boat traffic. These people are asking for now to put a pontoon boat and motorboat out in front. At the same time they did limit it. Tom Krueger, that represented the Minnewashta Creek Recreational Beachlot, fought me, just limiting me to on dock on my property. Okay. And limiting my boat space also. So, and then the other thing too was that the ordinance says you have to be 10 feet from' the lot line. Number 3, the question is why didn't they put on the application, on the beachiot application, why didn't they put that they were requesting a boat and a pontoon at the same time? Now instead of I coming here and applying for it now. I guess I wasn't even aware of it. I just happened to come tonight just to check it out. Let's see. And number three, there's nothing written in the ordinance in Minnewashta Beach saying that there is, that they can moor a boat there at this time. To my II knowledge, as Kathryn said earlier, that it's outlawed in their ordinance and so forth. So those are some of the things I did want to address. At this time there is a boat and a pontoon boat out there. At this time. Batzli: Did you buy the property last summer? Dana Johnson: I bought it about 2 weeks ago. I closed on it. So I officially own it now. Batzli: Do you object to them having the boats there or do you object to II them being in front of your lot? Dana Johnson: Well I guess since they're objecting, the whole Minnewashta Creek Recreational Beachlot was represented here last year stating that I can only have one dock on my property. Ken Lund also is buying the other half of the property which is going to be located near to them. He can't make it here tonight so I guess I'm representing us both because it's still' in my name totally. So I guess legally I can speak for the whole thing. I guess like I said earlier, just because they took and limited my boat t t Planning Commission Meeting May 6, 1992 - Page 8 access, I guess I have to object to their boat on the property. I'm giving you Ken Lund's feelings also on this due to the fact that he doesn't want it on his side of the property either. ' Batzli: Okay. I think the answer was. Farmakes: That's the opposing lot on the opposite side? Dana Johnson: I'm sorry. ' Farmakes: You're talking about Ken Lund. Ken owns the one lot or? Dana Johnson: I own it all right now but I have split the lot. Okay. Ken ' Lund will be owning on their side of the association. Emmings: Ken Lund is immediately north of the beachlot and he's then the next lot to the north. ' Dana Johnson: Right. ' Batzli: Not to belabor this point. When I asked the question I think you ended up, it started out that you were objecting to the both boats but then you ended up by saying that you don't want it on your lot. Dana Johnson: Well my lot legally is the whole thing right now. Batzli: Correct. Correct. But you don't want it in front of Mr. Lund's lot? Dana Johnson: That's correct. I'm speaking for Mr. Lund. Batzli: Do you really object to the fact that they have two boats if they kept them in front of their beachlot? Billie Windschilt: Remember, we're not Tom Krueger and we didn't know anything about. ' Terry Thompson: I have to apologize for Tom Krueger. I didn't know anything like that went on. I swear to God. When did this happen? ' Batzli: You guys can discuss this after. Excuse me. Terry Thompson: We're neighbors. I don't want to start fighting with my neighbors. 1 Dana Johnson: No, I don't either. Conrad: I don't even know if it's an issue between you. It's not an issue between the two parties. There are regulations as to how many docks so it's not like the beachlot, your beachlot would have said you can't have two docks. There are ordinances that say that so don't feel like that was the situation. II Planning Commission Meeting May 6, 1992 - Page 9 1 Dana Johnson: My question is, I'm speaking for Ken Lund tonight and he wanted me to express those feelings. That he does object to the boat. Batzli: Okay. Thank you. , Mary Jo Moore: I'm Mary Jo Moore. I live on Dartmouth Drive inbetween two beachlots. One conforming, one non - conforming and I guess I object to any expansion of the non - conforming beachlot. I don't think a swimming dock II and, a raft is fine for the swimming beach but I don't think it's conducive with motorboats. Just for a safety factor if nothing else. And I don't think this Council can rule whether a boat can be moored in front of II somebody else's property. And the Association's already said they won't accept it on their beach so I think the boat issue should be just closed right now. And I do object to any expansion beyond the '81 numbers. Batzli: Thank you. Anyone else like to address the Planning Commission? ' Emmings moved, Ahrens seconded to close the public hearing. All voted in II favor and the motion carried. The public hearing was closed. Ahrens: Is the Association objecting having the boats in the beachlot area? Ken Hannemann: I don't think so as long as it doesn't interfere with the swimming. However, the lot being 60 feet wide, we can put restrictions... II Terry's pontoon and it could be kind of difficult to achieve. Unless we put it out further. On the lake. Ahrens: Where's the pontoon boat located? ' Terry Thompson: Right on the property line. Ken Hannemann: Right on Mr. Johnson's property line and our's right now. Ahrens: So there may be some problems with the Association if you can't II find this up. Ken Hannemann: If they kept it in the middle we probably would have II problems. If they could keep it where it is or even a little bit further back, that shouldn't be an issue. A lot of the children in the Association are smaller and swim in the shallow water. And to my knowledge no one else in the Association has formally complained to me while I've been the co- president that Terry and Billie's boats were causing a problem. Or in years past. Emmings: But they've never been parked in front of the beachlot right? ' Billie Windschilt: Yes. Oh absolutely. Emmings: Oh, okay. But that's on the lot line. Terry Thompson: That's on the lot line and mine's been there for 12 years II on the lot line. II Planning Commission Meeting May 6, 1992 - Page 10 Ahrens: But if you move that pontoon boat in 10 feet, that would be the 1 swimming area? Ken Hannemann: Yes... Terry Thompson: Is there an ordinance...from being moved out? Ahrens: Past the raft? ' Conrad: Not one of our's but the DNR might have. You can't be a hazard. If you're a hazard to boat traffic. 1 Ken Hannemann: If the raft is out beyond where the pontoon would be, is there a restriction on how far out it can go? Ahrens: There may be because the DNR has restrictions on that. Ken Hannemann: Because in year's past we did put the raft out...further down the shore from our's. Aanenson: It could become an obstacle if it's out too far and the DNR would have to make an interpretation. That'd be the instruction. Farmakes: I have a question on the Minutes. Page 44 of the City Council ' meeting. July 8, 1991. The top. You're the current president of Minnewashta Creek Association? Ken Hannemann: Myself and Joan Skallman are co- presidents. Farmakes: Well this is her comment here. She's talking about, if we have a conflict with the owner of the boat mainly because they sold the property ' in 1978. They're talking about a pontoon boat. Is that the pontoon boat that we're talking about here? You're the owner? ' Terry Thompson: Yes. Farmakes: Where do you presently live? Do you live in the development? ' Terry Thompson: Right across the street. First house in the development. Right across the street. I walk across the street and get on the boat. Farmakes: Okay, but you live in the development, correct? Terry Thompson: Yep. ' Farmakes: Okay. Because I construed this to mean that you no longer lived in the development. ' Ken Hannemann: This is in error. That's what Kate talked about earlier that she was under the... ' Aanenson: We called the Association and asked if this boat belonged to the Association and they kept telling us no. It wasn't until today that they 11 Planning Commission Meeting May 6, 1992 - Page 11 I/ said, oh it belongs to someone in the Association but not the Association. II It was a misunderstanding. Farmakes: Okay, so you're a card carrying member of the Minnewashta Creek ' Association right? I don't know. It would seem to me the solution would be to move it out as far as you could. I know this is very difficult for riparian rights because the problem is that it's a confusing issue. There!' are overlapping jurisdictions. Not only, I called somebody at the State DNR, Department of Waters today trying to figure out what this is because I've heard so many different definitions of where the jurisdictions fall. The comment they made was, it's depending on the lake but in this II particular case, there are overlapping jurisdictions here. The fact of - what it says on your deed means nothing. The City or the State still has jurisdiction in the matter and it's overlapping. What they go with is the!' lead, the most restrictive of the Covenants. So I noticed that there's less argument with this and yours than some of the others but I guess my heart kind of goes out to the people who purchase things that they believe were right in the past. A lot of this problem has to do with the people II who are selling you the property. They basically were selling you rights that you didn't have the right to sell you. Buyer beware. Unfortunately the City also has an obligation to maintain some sense as people buy a 60 II foot lot and they want to put 20 boats in it. It's not conducive to safety" or good relations with your neighbors. I would hope on this thing, it seems to me that this is a reasonable, if you can move that out, or that boat out farther, that this would solve this problem. What they presently 11 have on here compared to what they had in 1981 seems to be... Erhart: The way I understand this is that the boat, up until a year or twol ago, really parked, was somebody's boat parked in front of somebody else's lot. Up until a year ago you had really no relationship to this beachlot. Only the last year was it in front of the beach. So the precedent there ill only a year or two. The pontoon boat however you're saying has been parke as part of this beachlot for 12 years? Terry Thompson: 12 years. Her's has too. ' Erhart: It was parked in front of private, somebody else's property. Billie Windschilt: No. I said it was parked right on the property line. II Terry Thompson: The old woman that lived there, she never used the lake or even come out of her house. We moved it over a little bit on front of her ' house but she didn't ever complain or nothing. And the pontoon's been out there for 12 years. On a lift. On the property line. Erhart: Okay, and you're both members of the Association? Terry Thompson: Right. ' Erhart: Well I tell you the problem with this whole thing is, we're going to have to all sit here and say, we're going to have to develop some II philosophy about what we're going to do with these things. How many have we got coming in this summer? Planning Commission Meeting May 6, 1992 - Page 12 ' Aanenson: 12. Erhart: And then the problem is, if you don't do that, we can be 1 inconsistent from one to the next. Batzli: We're developing a philosophy as we speak right now. 1 Erhart: Okay, can we pass it on then? Let it develop some more. ' Batzli: Sure. Ladd, go ahead. Conrad: I just got to repeat some, and we're going to repeat a lot of stuff but the boats have been there for 12 years. Both boats. ' Terry Thompson: Both boats. ' Aanenson: That's what they're saying. Terry Thompson: And they have been. 1 Conrad: But we don't have an inventory? When we did it. Aanenson: Whoever did the inventory back in 1981 didn't appear to be any I boats. Terry Thompson: I can get affidavits swearing that they've been there. Roy Leech, he launches and pulls my boat out every spring and fall. He's got a pontoon trailer. I mean I didn't come here to lie to you. It's been there for 12 years. ' Aanenson: And maybe it was because it was on the property line of the neighbor's property. Conrad: You're going to have to bear with us because we are going to be watching 12 different groups come and we're trying to be consistent and so far we are not quite sure how we're going to do that. We're scrambling a ' little bit here. Ken Hannemann: We're the first one? ' Conrad: You're the first one. We thought you were going to be the easy one. At least I did. Kate. There was a public notice sent. It was published in the paper. Notice sent to who? 1 Aanenson: On this one? ' Conrad: Yeah. Aanenson: Everyone on Lake Minnewashta and then the Homeowners Association. Conrad: Everybody on the lake? Aanenson: Yes. , ' Planning Commission Meeting May 6, 1992 - Page 13 Conrad: Every resident? ' Emmings: I didn't get one. I live on the lake and I didn't get one. I knew it was coming up however, because I got my packet but I didn't get one. Batzli: But it was everyone on the lake plus the entire homeowners 11 association should have gotten on. Ken Hannemann: I got a copy and I forwarded it. Batzli: You sent to every house within the? Aanenson: No, the president. Batzli: Just the president? Okay. Conrad: And that's okay for homeowners associations. I think that makes II sense. But lakeshore, I'm real concerned about the neighbors on either side. We know we have one here but I don't know who else. I've got to be real careful. The swimming raft, in my mind, as long as the neighbors aren't protesting that raft, I don't see a problem with it. So I guess philosophically and I'm going to try to tell you some opinions here. I'm going to do a couple things. I'm going to try for myself sink everything into the current standard but also use 1981 as a guideline. If I can. Anc, some things will be in concert with what I hear neighbors saying. If they're complaining about something, I'm going to be real sensitive to tha so that the raft, I don't see a problem with because I haven't heard the neighbors complaining a great deal about that. Which talks about intensification of use. And I'm not hearing that that's a problem. But I'm assuming Kate that neighbors got the notice. So some people did but anyway, so the raft is okay. I guess the boats moored. If there were 2 boats there in 1981, and we have an affidavit sworn to the fact that there were. And because it's less than what our ordinance would allow. Even though that wouldn't be a beachlot today but it is less than what our ordinance would allow today, I would feel comfortable with the 2 boats. But the 2 boats have got to be in front of the beachlot and can't, have to consider the 10 foot setback. That's real important. The neighbors have II to have that space. Especially, that's real critical so I think how this gets worded later on, it's going to be a beachlot. It's going to be your Association that has to straight this out and I'd rather have you straighten it out than us. Billie Windschilt: We have a neighbor on the other side that's...and I don't think he would have a problem if we put the boats... Conrad: What we don't know, doesn't hurt us. If that's comfortable for him, that's your relationship. We'd rather have your relationship. The II ordinance is there to protect your neighbor and if he feels comfortable or if they feel comfortable that you're doing that, that's between the two of you. Those are my comments. , Dana Johnson: I just have a question here. How could the other neighbors comment when it was never really on the application in the first place? II Planning Commission Meeting May 6, 1992 - Page 14 ' When they applied. Batzli: That's why, I'd just like to say that what we're going to do here ' tonight is make a recommendation. We've had the public hearing. The neighbor, all the neighbors will, it will go in front of the City Council, and Dick? ' Richard Wing: I happen to represent that neighbor. He had called me... Emmings: This is now the lot south of the beachlot? i Richard Wing: That's correct. Chick Anding did call me specifically and I'm Richard Wing. City Council. And I realize this is a hardy issue and you're going to have some difficult decisions and I'm hoping that the decisions will be made here because we don't want to deal with them. We don't have the time and we'll be there for days on end if you can't resolve these. At any rate, in regards to Mr. Anding. He did call me. He said he ' had heard a rumor that they had asked for docks and so on and so forth. Apparently having to do with some Minutes from an annual meeting. I did call Kate and specifically ask what the permit was. She stated it was as ' status quo. No boats. No docks. I just referred that information to him. At that point he saw no reason to pursue this. He is concerned and he does care. About that issue. And if there were requests for docks or boats, he would clearly be here tonight. That's my opinion and I can't speak for him. Conrad: The issue is on the applicant it said no boats because of their ' misunderstanding of what, who owns the boat. Richard Wing: The application, because it stated no boats. He was comfortable that it was status quo and it took no action on his part. Ahrens: Dick, did he say he objects to the pontoon? The pontoon is right next to his property. 1 Richard Wing: No. No. The pontoon boat is on Mr. Johnson's property. Terry Thompson: It's not on Mr. Johnson's property. It's on the property line. Richard Wing: Well, alright. It's on the property line. However, the moored boat was on Mr. Johnson's property and that was an issue because that's what prompted the recent City ordinance update. And I frankly, as long as I'm here, am concerned because we put a lot of time and effort into I the restructuring of the, it's not the beachlot ordinance but the lake useage ordinance. And a couple things came out of that that are in effect at this time. Number one is that you have to moor the boat in front of ' your house if you own property. As it was before, in theory you could own it anywhere you want to. City ordinance now requires that you moor the boat in front of your property specifically. There is no leeway. Also, and I don't think staff has informed you of this adequately because these ' ordinances are in effect and I'm very sensitive about this dock setback zone. I don't think that's gotten enough issue tonight. If it comes to the Council, I'm going to enforce the dock setback zone and it has to be 11 Planning Commission Meeting May 6, 1992 - Page 15 part of every permit that comes in. Whether it's my home or anybody else ' home or a recreational beachiot. And that says, the dock setback. No boat, portion thereof, raft, moored boat, boatlift can be in the dock setback zone. That's to protect the neighbor from neighbor. It protects the creek owners from Mr. Johnson throwing out his boat or pontoon or dock straight out his property line and cutting off their lake useage. Or on the other side. In theory Mr. Anding and Mr. Johnson could put docks straight out their property lines and cut this beach off altogether. That's not fair and reasonable, nor is it fair to them to incringe on the" property. So the dock setback had unanimous support of the City Council. Emmings: And that's the 10 feet that you're talking about? ' Richard Wing: That's the 10 feet. So I believe that the permit, and staff should be making that clear. And I think I've made it clear and I think 1 the Council's made it clear that we support the dock setback and the permits are going to require dock setbacks. Farmakes: What about the issue on the report from the Director. It talks" aobut the setback but it also says that there's a limit as to who can dock in front of the property. It says here that you're changing that to eliminate that. Richard Wing: Okay, a non - riparian lot is different than a riparian lot. The riparian lot has to be owner or blood relative to have a boat. So I can have a boat or a blood relative. Now on the Associations, that's irrelevant. Farmakes: Unless there's a differentiation between the term moorage and 1 dockage. Did the city make a differentiation between that? Aanenson: Yes. ' Richard Wing: Clearly. A moored boat cannot in it's mooring be within the dock setback zone. ' Farmakes: The DNR says anything that confines a boat is a mooring. Whether it's a dock or something you tie it up to a tree. Richard Wing: Well, because of this problem and the fact that the boat was physically on Mr. Johnson's property, this is one that percipitated it. There was a couple on Lotus I believe also. Or Minnewashta Heights that II just clearly put boat lifts 10 -20 feet over in the neighbor's property and finally someone had to draw the line. There had to be a game play that was fair for everybody. I keep within my property lines. Everyone is expected' to do the same. Just the fact that they have 60 homes on a 40 foot lot such as Minnewashta Heights doesn't justify they take over the side properties. So I'll just put that out and again, I believe that staff ought to represent those ordinances. Aanenson: Can I make a clarification on that? And I know Dick has concerns about that. I did speak to Roger on this. First of all, it wasn't addressed in this specific instance because they weren't asking. The application came in with no boats, okay. So we didn't address it. 1 • Planning Commission Meeting May 6, 1992 - Page 16 ' Secondly, I asked Roger Knutson, City Attorney, how does grandfathering apply to this? Well, if they were in a certain area and they had their dock in place and it exceeded what our dock ordinance has placed, they would still have the same grandfather rights whether it met the dock ' setback zone or not. So that comes into play. So it wasn't addressed on this specific one because my understanding was, and it wasn't clear until this afternoon, that those boats belonged to someone in the Association. ' And the application came in with none. We called people last week and they still told us, no. They're not association boats. So we were very confused. 1 Farmakes: So if the other lot owner agrees to them moving their boats over - in front of and mooring? ' Aanenson: No. Farmakes: That does not come under, that would not be allowed under the ' ordinance? Emmings: Right. Billie Windschilt: What about if we just keep within our own area? We discussed that. I didn't know anything about the setbacks. Farmakes: I don't know that, the setback that I got from the DNR today was 4 feet so I don't know how that plays into navigational hazards. Or if they'll give you a variance on that. Batzli: Ladd, were you complete? Conrad: I'm done. Dana Johnson: I'd just like to make one more comment on this. Batzli: Excuse me sir. Please. Let's complete and you'll get another opportunity, believe me. ' Ledvina: Okay. I guess one thing, if we do act on this this evening, we would have to, or I feel the need for the approval for the action on this to include a condition which would require affidavits from the two boat owners that the 1981 survey was in error. Terry Thompson: 1986 was too. ' Ledvina: Okay. Well, if we can go to that point and because our baseline is the 1981 survey and I think we need to stick to that. As it relates to the boats that had been moored since 1981 or sooner, I think that would be acceptable and then also as stated here, the setback requirements. Batzli: Okay, thank you. Steve. Emmings: Well, I don't if this is as difficult as we're making it. Maybe it is but I guess just my feeling on this is, number one. It's obvious that boats that are there can't be parked in front of somebody else's Planning Commission Meeting May 6, 1992 - Page 17 property no matter what else you do. And they can't be within 10 feet of 1 the lot line either. And now it seems to me the boats are in the swimming beach and I think that's a real serious problem but I think it's an . association problem. I don't see anything in the, whether those boats would have been grandfathered in as far as the city ordinance is concerned,' had they been parked in front of the beachlot since 1979, I don't know, but I don't think it matters because those aren't the facts. Then I look at the conditional use permit for the beachlot that the City of Chanhassen is II a party to and I don't see anything in there that allows any boats in front of the beachlot. So I don't know what, they can't be grandfathered in with respect to the covenants that set up the association and the beachlot. I don't think. Erhart: Steve, is this the '79 document that you're looking at? ll Emmings: Yeah. So I don't really, I guess the application we got from the homeowners association does not ask that we approve any boats. Terry Thompson: I didn't know we had to get an approvement for a boat in II the lake. I didn't know. Emmings: Now wait. I've got the floor. The homeowners association has 1 not asked us to approve any boats. I want to know from the homeowners association if they're asking for boats now, with this application. Because we've got to act on this application tonight. Ken Hannemann: And as the co- president, I would say we should have changed that to reflect two boats. I filled it out wrong I guess you could say II because I just pretty much reiterated the inventory in 1981 figuring that we weren't going to be allowed two boats...or be able to moor boats because the inventory showed zero. Therefore, we would be... Emmings: Now are you speaking on behalf on the association and saying that you want us to approve two boats in front of your beachlot? Ken Hannemann: Yes. Emmings: Okay. Well the swimming raft, I guess I'd say in general to what" Ladd and Tim have brought up in terms of having some kind of consistent approach to these things would be real nice but I think we're going to find out they're all very individual and we're going to have to very much go on a case by case basis. I don't think we're going to be able to develop a consistent philosophy that we're going to be able to apply to each beachlot. With that in mind, an item like the swimming raft, since it's a swimming beach, seems like a very reasonable thing to me to have out there II and I'd support it. In fact, I'd support it even if the neighbors complained about it. Just because it seems reasonable to me. I think having boats within that swimming beach with the raft and knowing how kids II like to play around objects like a raft or a boat, if it's parked there, I think it's incredibly dangerous and would be a foolish thing for the homeowners association to do at best. So I'd be, on those grounds, I would not be in favor of their being any boats. First of all because the ' conditional use permit in 1979, which was in place at or before these people started putting their boats out there, doesn't provide for any 1 Planning Commission Meeting 11 May 6, 1992 - Page 18 boats. That would be my primary ground for that. And number two, I think it's dangerous and unreasonable. I think it's too bad but I also don't think they can have their boats in front of somebody else's property and they can say they're on the lot line but when I'm out on the lake, and I ' looked at those last summer, they weren't on the lot lines. They were in front of the neighboring property, at least in my eye. And that seemed real clear to me. And it may be that the woman who lived there before didn't complain but I think that's completely irrelevant. So I guess, bottom line here. I think that what they've requested is all very reasonable. I would not approve the change for 2 boats. ' Batzli: Let me ask this question. Given the fact that we have at least one neighbor who did not come tonight because it's not on the application. Seeing as how we really don't know where they would intend to moor the boats in relation to the swimming beach. The issue is we don't really know where they would put them. We didn't know in advance they were going to have them. Staff didn't have a chance to look at it or even contemplate ' it. Does it make sense basically to give this back to them and say, reapply with what you really want at this point? 5o we can look at it and actually consider whether we want to give them boats or not. Because it seems to me that at this point say yes or no to the boats. I don't know. ' It seems obvious to me they can't put them on the neighbor's but I don't know where they would go in front of their beachlot or whether it would even be feasible. And it seems to me that I think the beachlot association I really should consider and maybe, I mean he said that yes. He wants this to be part of their application but I don't believe they came in here understanding that there's a 10 foot setback that we're going to put the ' boats into and do they really want the boats if they're going to impinge on their beach. Because I think I heard the president at least partially say at one point, gee. Maybe we wouldn't want it then if that's where they had to go. So what my recommendation would be, is to basically give this back ' to the association and say, this is where, if we give the boats or even consider the boats, they're going to have to go 10 feet in. And do you really want the boats and come back with a complete application with ' everything in there that you really want. Because I don't believe that it's fair to have told at least one neighbor that don't bother coming. There's nothing in here and then we're going to stick him with 2 boats potentially along his lot line. Even they're only within 10 feet. I think he should be given an opportunity to speak on that issue. Conrad: Do you want him to speak here or in front of the City Council? 1 Batzli: Well, that's the issue. Do we want to look at it? Is there anything else for us to add? And if we decide that we want to act on it ' tonight, then I would propose at least one or two things. That we look at. At least have some sort of system in regards to this after going through this once. ' Farmakes: Are there other areas that they should be looking into with regards to safety of the issue of storing these boats within the lot line? Such as other jurisdiction? 1 Aanenson: Yeah, we'll check on that. How far they can be out. 11 Planning Commission Meeting May 6, 1992 - Page 19 Erhart: I might suggest that we do, someone entertain a motion to pass it with the boats. Anybody who wants to table it or vote against it can vote II nay. You could vote against it, whether you want to table it or you want to vote it down, your mind wouldn't change whether or not they brought it back. And then if it's voted down, then we can vote then again to table it or to recommend no boats. That way we have the opportunity to pass it along here tonight. Do you understand what I'm saying Steve? Batzli: So you're basically saying that what Dick told us that he wants 1 the decisions made here so they don't have to have a lot of new people coming up in front of them is meaningless and we just should pass it on? Erhart: It's possible here that a majority would say, they're not going to vote for the boats whether or not they come back. Change their application. I can tell you, it's not going to change my mind. It's I possible that we could finish it here tonight. If we vote on it that way. So if someone make a motion to vote it with the boats in. If that fails, then we can deal with the tabling and it's possible that we could finish I this tonight. You understand what I'm saying? Emmings: I agree with Tim. I Batzli: Is that, do people want to see it come back or no? Do you want to see it come back? Joan does. Farmakes: I'm concerned about the safety issue. I'm wondering what they're going to do if it comes down between boats going in there or them using the beach. I realize that's probably an issue to handle internally II by themselves but I'd like to know what the guidelines are regarding that anyway. Batzli: But see, I would like to see for example how big their raft is going to be. Where they're going to put it and how big the boats are and where they fit in relation to the raft. I don't see any of that. Farmakes: They're talking 69 feet. Batzli: I don't see any of that. I don't know if it's safe or not. So I don't know that I can vote yes or no on the boats. I think that they were I there in 1981 and if that's what we're going to use as our baseline, then maybe I'll say yes. They may be entitled to some boats. But maybe I don't want them to have a raft, even though it's not as intense of a use because I maybe I don't want kids swimming out there and encouraged to swim out there to the boats. Erhart: I have a question. Is it Council's intent that we ignore the '79 1 contract? Emmings: Yeah. How he'd get around the '79 thing? Erhart: With the reading that we're supposed to try to find what was there in 1981, yeah. Probably boats were there in 1981 but are we supposed to 11' completely ignore the '79 contract? 1 II Planning Commission Meeting g May 6, 1992 - Page 20 Batzli: I don't know. My understanding was we look at the '81 baseline and we use that. Emmings: But I think this case is a little different in that there's an 1 agreement to which the City is a party from 1979 talking about how that property is going to be used. Batzli: Well, that to me is another reason to bring it back and basically ' say to our City Attorney, you know. Do we look at this document and ignore the '81 baseline under the Statute? Under our ordinance. Emmings: That certainly didn't invalidate this agreement. That ordinance. Terry Thompson: On the safety issue, we do not start our boats until we're out past. As a matter of fact, there's water skiers that go right by our swimming raft... There's people that come right by there. When we push our boats out, we're way out past in deep water before we start them. ' Batzli: Well see, we don't have control over either the boats that come by right now and what we're trying to do is we're trying to avoid putting you know. Terry Thompson: This boat's been there for 12 years. We haven't had a problem. We're real safety conscious. 1 Batzli: But if we approve it, we will most likely require you to move it closer in to the center of your lot and that may be aggravating the situation. We don't have all the information in front of us to be quite ' honest. We were all surprised at the last minute that suddenly there's boats in this equation and none of us knew that. Conrad: I think we should table this because...unknown and I'd like the homeowners to make sure they're in agreement. All of them and we need some guidance from the Attorney in terms of what this, you know the '81 versus the '79 conditional use permit. I don't know how to treat that. Batzli: I don't know either. Conrad: There are enough things there that make it worth while. It would go up muddy and I'd prefer to have it coming back very clean. ' Batzli: Would anyone like to second that motion? Farmakes: Second. ' Batzli: Any discussion? All in favor of tabling this application and requesting that the Homeowners Association renew the application and republish and send it to the attorney. Emmings: Little discussion? ' Batzli: Yeah. 1 Planning Commission Meeting May 6, 1992 - Page 21 Emmings: I'd like to see, I think it's very important for the President of the homeowners association to find out what all of those families with all those children want to do in terms of having 2 boats parked in what's goin to be a 50 foot, or 40 foot area in front of the beach. Because you're here representing them tonight and I know that but I don't know if they knew that was a possibility. So it would be nice to know what they think about II that. Conrad: Staff should be working in terms of what the DNR allows in terms 1 of moorings. How far out. Safety issues. We need that. The homeowners or beachlot owners, you need to know that information so you.should be working with our staff too. 1 Emmings: I don't think there's anybody up here who wants to see you lose something that you've had for 12 years, and I mean that sincerely. Even though right now I'd vote against you having your boats, that's not an eas thing to do and I don't think anybody wants to do it. And if there is some way to accommodate it, and for us to accommodate that historical use, 1 that's fine. But I don't see what it is right now personally. Batzli: Okay. I did promise this gentleman. Did you have something that's still pertinent at this point? 1 Dana Johnson: You pretty much covered it all. My question was, the 1979 covenants and you've addressed that. Batzli: Yes, we will address that. Conrad moved, Farmakes seconded to table action on the Non - Conforming Use 1 Permit for a Recreational Beachlot for Minnewashta Creek Homeowners Association for further clarification. All voted in favor and the motion carried unanimously. Batzli: Please work with staff on resubmitting your application if you will. As far as the plan of attacking these, I think Ladd had an excellent idea and Matt as well. I think that if we're going to take a look at modifying our 1981 baseline based on the evidence presented, I think we would like some sort of evidence. Either by way of an affidavit, photographs, whatever. Something in writing. Something that we can take a1 look at and I would also like us to focus on whether it is an intensification which intrudes on the neighbors. Ladd kind of brought it up you know. The raft is fairly innocuous. Suddenly you start putting in boats. Intensifying it. It's intruding more on the neighbors and I think at least those two steps we need to take a look at as we're going through these applications. Unfortunately I think we're going to develop other factors as we go through these. Ahrens: I think too if we're going to ask for affidavits, we should ask for affidavits from adjoining landowners rather than anybody out there who 1 may be interested, if possible. 1 1 II Planning Commission Meeting ' May 6, 1992 - Page 22 1 PUBLIC HEARING: NON - CONFORMING USE PERMIT FOR A RECREATIONAL BEACHLOT FOR TROLLS GLEN HOMEOWNERS ASSOCIATION. ' Public Present: Name Address Mary Jo Moore 3231 Dartmouth Drive John P. Merz 3900 Lone Cedar Terry Johnson 3898 Lone Cedar Circle ' David & Mary Ann Tester Bernie Schneider 3897 Lone Cedar Lane 7501 West 77th Street - Ivan Underdahl 7502 West 77th Street Ann Cathcart 3895 Lone Cedar Circle ' Aanenson: I'll just make a couple quick comments. Thank you. The Trolls Glen Homeowners 1st Addition and Cedar Crest Association has been in 11 existence since 1979. There's 12 homeowners in this association. There was an inspection done on this beachiot in 1981 but based on a legal action brought by John Merz and Terry Johnson, there is depositions on this one ' documenting what was in place in 1981. Just for historical perspective, there was a complaint to investigate these beachlots back in June of 1991 but because we are going through this beachiot process, that has been put off until this time to go through the non- conforming process. The Association is seeking approval of 2 boats be docked and 2 boats to be moored. Again some of the concerns that we have is that the dock, again the ordinance says 50 foot. They've shown that they've always had a 64 foot length dock. They're also requesting a canoe rack. As I mentioned the two boats docked and the two boats moored and they do have a swimming beach. Batzli: Would the homeowners association representative like to address the commission? Ann Cathcart: My name is Ann Cathcart and I live at 3895 Lone Cedar. I'm the President of the association. I think this is going to be the easiest case. I might mention something. I'm glad to be here, listening to that first case because I think one of the problems is the non - conforming recreational beachiot application that we got. The directions said please provide all requested data consistent with what existed in the summer of 1981. So we put down what was there in 1981. But then with what we wanted, along with what was physically there is what we put. But to clarify it, the application really is the letter. That is pretty self explanatory in what we want as far as the request. The non - conforming recreational beachiot permit. Because I can go down this and somewhat see the confusion. There really wasn't a place to request the picnic table, although we would like to have a picnic table. We have had a picnic table since way before 1986. You see what I'm getting at? Aanenson: I can explain. The ordinance doesn't address picnic tables. The beachiot ordinance. What we've done, we just want to document that there is a picnic table in case someone in the future complains that they've got a picnic table, we've identified that it's there and that's the intent. Planning Commission Meeting May 6, 1992 - Page 23 I/ The beachlot ordinance doesn't say whether or not you can have a picnic table. But we just want to document if it's there or not if someone complains. Emmings: What about her comment that on the application that they fill out, they're supposed to fill out the status quo of 1981. 1 Aanenson: What they felt they had in 1981 and I've spoken to numerous people on this. When they've called to ask about it, that was the direction from the Council. Emmings: I know that but don't they get, do they also get a form that says, what are you asking for or is this all you're asking? Do you ask - them if they want. On the sheet where it says what they're asking for in their permit, it says picnic tables not requested. Well she didn't even know she had to request them. But she might have. Are we giving her that I opportunity? Aanenson: Yeah. Under 16, that's why some people have put those underneath structures. Other structures that are there. Emmings: But that's as of 1981. I think what she's saying is, they've ha a picnic table there for a long time. Didn't know it was something she ha to ask for or write down. Ann Cathcart: Another explanation. We had two boats in the water. The II only reason we're going through all of this is because our Minutes specified that we'd have 4 boats since before the ordinance came in. And there weren't enough boats because the neighborhood wasn't built up. So well only had 2 boats. We weren't just going to invent or just plop 2 more boats in because we had specified in the Minutes and the Association had ruled to have 4 boats. But there was only a need for 2 so there were 2 there. But they were planning throughout the development of the association to have 4 boats. So what I did in my letter, that was the application processed with the letter and we had our special meeting. We voted to have 4 boats. That would be our special request and as you can see in the second paragraph, we requested and it says, I did this on my new' computer so I don't know how to underline or italics or anything. So we request a permit for mooring 4 boats on a non - conforming beachlot. Batzli: Which letter are you? Ann Cathcart: The letter, it's on the back of the recreational beachlot II inventory. Yeah, docking. So then on the association request, all of a sudden here it says boats at dock, 2. Boats moored, 2 but we have had and have always planned to have a 64 foot dock. We have 2 boat lifts with boats and then 2 boats just tied onto the dock. Two small fishing boats. That's what we intended. So in the letter, how can you specify all that? 5o we just let you know you can really get complicated when you get to the Witty gritty. Because when we got this, of course we had question marks. And another thing that's very interesting that could complicate things. In their recreational beachlot inventory in 1981, it shows blank as if it didn't exist. But it shows our beach was 3,000 square feet and 60 feet of 11 shoreline and it's actually almost 70. So maybe we can get into that later 1 Planning Commission Meeting May 6, 1992 - Page 24 1 because we had a neighbor that, and maybe when they inventoried this, they didn't think there were any, I don't know what happened but there, our neighbor was 10 feet in on the association lot so there was a dock on the lot and his 2 boats. So in effect, actually in 1981 we had 2 docks and 4 boats on our lot. And we have pictures to prove that and I suppose if it ' ever went to the Supreme Court, we'd get subpeonas and affidavits and all that so it's very complicated. Farmakes: It's non - conforming. Ann Cathcart: No, it's non - conforming. 1 Farmakes: Your 70. Ann Cathcart: It's non - conforming but if you go by the, this is based on interpretation because it's so strict and whatever was physically in the water, we could probably prove that we had 2 docks and 4 boats. Emmings: One of which belonged to. Ann Cathcart: The neighbor who planted a tree on the association beach. Who had his dock over and had his two boats there. Batzli: Do you have any other comments on the? II Ann Cathcart: No, except the fact that we would like our 4 boats that were specified in the Minutes of the meeting in 1981 and that, these are page numbered. I think Kate, she did a beautiful job in putting this together. 40 pages. I counted but our Minutes. Ahrens: Are their 1981 Minutes in here? Ann Cathcart: Yeah. 1981. 1981 Board of Directors meeting. 6 -6 -81 and it is underlined at the bottom. We've been an association. 1 Ahrens: Where does it say that there's 4 boats in the water? Emmings: There are 4 boat places. Farmakes: Two boat lifts, two power boats. Ann Cathcart: A maximum of 4 boats mooring. So that's been a stipulation, ' a ruling for all these years and it did happen that we bought our property in 1985. Moved in 1987 so our boat was there as you can see with all the affidavits and depositions and everything that it says also. 19 pages of that. Our boat was in in 1987. The 14 foot fishing boat. Batzli: Thank you. Would anyone else like to address the commission? John Merz: I'm John Merz. I live at 3900 Lone Cedar. I am a member of Trolls Glen Homeowners Association. I am also an adjacent property owner. I own a piece of property that is not a part of Trolls Glen. So I'm going to come before the commission from a relatively unique perspective. So 1 Planning Commission Meeting May 6, 1992 - Page 25 1 what my words are, with the association. I'm also speaking, so I wear two!' hats so to speak. Emmings: Tell us which one you have on. John Merz: I don't know. It's going to be, number one. If you've read all the documents that I had submitted, applaud you. It must have been awful reading. If you haven't, I at least hope that you got through the first 5AI pages. I'm going to make this real short because I've been here before an I think my stances are well known but I do want to point out a few things. It's well document irregardless of what the surveys say by sworn testimony and all the documentation here, what did exist in 1982. And it's to my understanding of what the City Council's 1982 baseline directs us to conform to. It isn't the intended use but it's actually the physical use of what was there in 1982. I'd like you to refer to Exhibit 2 which is really the survey of our outlot, and I'll make my remaining comments. Aanenson: Are you referring to this document? ' John Merz: No, it's in the cover. Yeah, in that document but it should be in the 8 page cover letter that you should have had and it just is actual, physical. , Aanenson: I didn't make copies of this. I talked to Mr. Beisel and basically everything that we put in here is kind of a summary of this. John Merz: Alright. All I need to know is do you have a current copy of the plat? I have one here I can show you. It should be underneath your own exhibit. I want you to refer to the plat. You should have a copy of it. Of the survey and it shows that the width of the property is indeed 6 feet at the registered high water mark. It also shows and it's quite important that you see that the property is only 27 foot in depth at the II water line to the back of the property line on one side and that's the greater amount. The other amount is less than 23 feet. Most important before this commission is the fact that the property lines are not parallel. They actually run towards the triangle shape. And in my business, I happen to do a little bit of surveying so I managed, Mr. Johnson and myself, my neighbor, found the existing survey stakes down there and I set up a transit over these and extended the property lines so II that I could accurately place my dock and not encroach within the 10 foot setback. To make a long story short, at 80 feet out, give or take an error of a couple feet, I'll allow the fact that we have 35 feet of useable space' between the property lines as they're extended 80 feet away from the shoreline. That given along with the summertime request that we know it was there in 1982, I am here to ask this commission recommend to the Council that we maintain the 1982 baseline. There were only 2 boats there.r It's very difficult to maintain the 1982 baseline conforming with the dock setback ordinance the way it is to work within the 35 feet. The summertime useage is complicated enough. Then we can go to the wintertime storage ' problems on this piece of property. With the docks, the boat lifts and everything there, it's almost impossible to egress or go across this piece of property without (a) going on the lake, or (b) trespassing on somebody II else's property that's not a member of the association. So like I say, I'mll a member of the homeowners association and I wear that hat. From that 1 Planning Commission Meeting May 6, 1992 - Page 26 position I must say that we had a 4 to 3 vote on the application to go to 4 boats. It's been long argued and well documented within our Minutes of my opposition to number one, any boats. But more than 2 boats and I won't get into that and bore this commission with all the facts. I've got oodles of ' documentation for it. There is really a bigger issue here. It's not just Trolls Glen and we do have a right here as lake owners and non -lake owners and citizens of this city to make sure that the precedent set by this is number one. And if we deviate from the '82 baseline, and I understand that you're going to take into consideration all the existing and extenuating circumstances and certainly there are in this case. But the hard facts of the matter is that this lot is so non - conforming that it has a hard time maintaining the use of the 2 boats that are presently there, much less expanding it's use to 4 boats. And that the term of mooring is really quite upsetting to me because I don't know how we could possibly moor boats out there. I mean it's hard enough to dock them much less put some moor out there. I do think that it's bigger than Trolls Glen. I think it affects all of Chanhassen and from my position I've spent an awful lot of time and energy not to go into the legal end of it but it's been a ' time consuming situation. I feel strongly about and it's not just Lake Minnewashta. Lotus Lake and all the lakes in this city and it's not just the people that live here right now. It's the people that may live here 10 and 15 years from now that may have a slightly different view of what we perceive. I don't think the Council in 1982 was certainly all that malign to come up with those ordinances that they do and I do think that this 1 commission, in all honesty, should adhere to that. That was a long battle back in 1982. I know Mr. Conrad was involved in them. I know a lot of people have had an awful lot of input into what went down into creating that ordinance and it's unfortunate that the 1992 Council is going to have to get, step to the plate and bat and enforce it. It's as simple as that. We can turn our heads and walk away from the issue or we can take it on and I'm afraid that's what you're charged with. I really ask that you, I have no objections to two boats. That's what was there in 1982. By the way, the surveys that were done were flawed for some reason. I was there when the 1982 survey was done. Scott Harr maybe. It was Scott somebody did this survey and I just happened to be standing there and it was about a week before all the, our docks went in but I do agree that in 1981 or the late summer thereof, that there was a 64 foot dock and 2 boats there. And I do believe that the documents are accurate. I think we've all been under sworn testimony to it. I don't think the fact that there's some alleging that there was another dock there. If it was, it was placed there in error by one of the neighbors. I wouldn't bet on that but I thank you for your time and I respectfully ask that you reject this thing and go with 2 boats. That's what was there. We can live with it but more than that is definitely unacceptable to me. Thank you very much. Batzli: Thank you. Anyone else like to address the commission? Go ahead. Mary Jo Moore: Living between two associations. ' Batzli: Can you give you name again. Mary Jo Moore: Excuse me. Mary Jo Moore, Dartmouth Drive. Lake Minnewashta and I do live between two associations. I'm a member of one conforming association. In 1980 I bought off shore and was a member of Planning Commission Meeting II May 6, 1992 - Page 27 Minnewashta Shores. The meetings for 1981 we discussed in detail your proposed or the city's proposed ordinance on the lake useage. At that I time Minnewashta Shores, their covenants authorized 20 boat slips and they have a large piece of property. We at the time had 16 and we discussed in length that the city's going to come through and do an audit. Shall we put in our 20 boats? Does anybody else want a boat and a dock? We authorized one more dock on a temporary basis which brought us to 17 of our covenante 20. And we agreed to live by that but we kept track of what the city was doing and their proposed lake useage. I think every association should. At that time I didn't have a boat but I made sure I had my dock. Never di get a boat in on that association so I think it is something that was thought through by associations that were apprised of what was going on. II And I think the Council and the Planning Commission did a thorough job in 1981. There is documented evidence of the number of boats in all these associations and to start changing them now, I don't think is fair to the associations that did abide by the ordinance. I again will state my objection to any expansion beyond the 1981 number. Batzli: Okay, thank you. Anyone else like to address the commission? ' Ann Cathcart: Can I say one other thing? Batzli: Let me, if no one else is going to speak, then you can. Yes sir. II David Tester: I've lived in the Trolls Glen neighborhood. I was one of th first. Batzli: Can you give us your name please. David Tester: I'm sorry. David Tester. I'm a dentist in Chanhassen. I'" been practicing here for 22 years and I feel good about it. I like Chanhassen but the original beachlot, Trolls Glen beachlot is unique because there are homeowners that have frontage and homeowners that don't II have frontage. Now John Merz is a homeowner without frontage really but he bought an adjacent lot so he has frontage that's actually a part, it's adjacent to the beachlot to the west which isn't part of our total neighborhood. Actually I don't think he's doing this in his best interest II because his house is in Trolls Glen and he doesn't want a marina in front of his house and I can understand the people that live on the lake viewing I a marina. This is something that they're concerned of but presently I think there's 12 homeowners and there's 4 boats presently there. That were for the past 5 or 6 years so 4 isn't an expanded useage as far as I'm concerned. There's 2 fishing boats and there's 2 boats that are on lifts. They're considered speed boats or motor boats but I would venture to say o any given day or weekend, there's not more than one party on that particular lot other than on July 4th when there's a fireworks. One of the' adjacent neighbors does have that. So this isn't a problem of over useage. I'm just thinking as the community expands, we're maybe going to have to give a little more leeway to certain parties and we're going to have make some accommodations. I don't see a danger factor because there's not that kind of traffic on that beachlot. This particular beachlot had mooring in the covenants. The other one that proceeded us, had no mooring rights at all. This is part and parcel of that. And even though it's non - conforming' conforming is something that's an item that can change. A beachlot's size Planning Commission Meeting May 6, 1992 - Page 28 1 and conformity, the lot size may vary down the years. These are things ' that are always going to change but at the present rate, the useage that that lot gets is minimal. And as far as a safety factor, I personally don't see one. I think the adjacent property owners that do have lakeshore are concerned about a marina but we've, in good faith tried to not see that ' that happens and we don't want a bunch of boats down there. We realize that it will only hold a certain number of boats safely and I feel that 4 boats is well within the realm of operability. Thank you. Batzli: Thank you. Anyone else like to address the commission? ' Terry Johnson: Good evening. My name is Terry Johnson and I live at 3898 Lone Cedar. I abut the association that we're talking about on the south - side. My first point is that I would beg to differ with Mr. Tester who was just here. To the fact that the lot is not overused and there's not that many boats down there. He lives across the lake and from his house I don't believe he can see the lake. I live right on the lake. I'm there every day. I office out of my house. I probably, I spend a good portion of the day at my house officing out of there. And I see the action that goes on there. It seems to me, in my opinion, that there's a considerable amount of action down there which is fine. I like to see the people coming and ' going but it seems like there's a lot of people down there. In fact, I believe it was in January we just enacted some covenants that regulated the amount of use at the lot and regulated the amount of hours that we use the lot just because of the fact that there was so much useage down there and there was people that were friends of people that lived in the association that would come down there with permission of the owner or of the lot that belonged to the association or not. So one of the things that we enacted ' in the covenants was that the owner of the lot that's part of the association would have to be with that particular party whenever they're down there. Whether it's their friends or relatives or so on or so forth. So my feeling is that I don't want to see this expanded beyond the 2 boats that are grandfathered in there from the 1981 baseline. This is similar to the other association that you saw previous to us in that this is only 60 some feet of shoreline which is well below what the city would allow for a ' beachlot out there now and they would allow no boats on it. So my feeling is that it's fine to grandfather the 2 boats that are there now or for 2 people to trade off using boats there but to not expand that. And if I could just approach you, I'd like to show you this lot and the position of my house and how this lot sits. It's really kind of unique. Different from the one that you just saw. Is that okay? This is the lake out here. This is my lot here. This is John Merz' lot. This is the association lot that comes in this circle here and down. I believe this is about 15 feet. There are steps here and this is actually... So the other point I wanted to make is that from the shoreline where the lake is, right now the water 11 level is right now which is, I don't know if it's the high water point or not. The back of the lot, this is my lot back here. And I'm surrounded by the association. Anyway, from this point here to where the lake is is about 30 feet. I just got the tape measurer and marked it off. And these lot lines here that John was explaining to you, they angle in. Maybe it's hard to tell from this drawing but they angle in and we, he's got some kind of scope that he uses in his business. I don't know what it's called but ' anyway, he was down there and set this thing up and we ran it out approximate distance of the docks. I believe it was about 70 feet or so. 1 Planning Commission Meeting May 6, 1992 - Page 29 i We put some posts... We're starting to set up our docks. The association set up part of their dock tonight and I put mine in about a week ago. Anyway, we want to conform to this 10 foot setback. And as you get out to the end of where these docks would be, there's only 35 feet of space that they would have between my lot and John's lot, which is next to it. He's II got the lot here. My feeling is it really wouldn't accommodate more than one lift and a boat and it may be difficult for them to put any more than one boat out there actually. But I said that my feeling is fine, there's II one power boat. Possibly one fishing boat is my feeling on it. But anyway, the other point that I wanted to make. When you saw this...is that by allowing any more boats out there on any more lifts, right, now they use 2 lifts out there and the one dock. With the way that the weather's been II around here lately, there's about 9 months of winter and 3 months of summer. Well anyway, in the winter months, they've got their dock and the lifts up on this association lot which you can see there is rather narrow. And it encompasses the whole association property there at the beach. And 11 really for them to get down and to use his property, the other 8 or 9 months of the year when we're not using the lake or when the lake isn't open, people have got to walk around my property pretty much to get on there. I don't mind it. I don't mind my neighbors coming on my property. II I don't mind that their picnic table's been on my property. The only thing I'd ask is they bring an extra beer when they come over there. ...very II unique. I think it's a little bit different than the association that you just saw up here previous to us and I think it's a little bit more unique than the ones that you're going to see here in the future in that it is so narrow. So my feeling is that it shouldn't be any more non - conforming than it already is. 2 boats to me is fine. I don't think it's fair to expand it to 4 boats. The other point I wanted to make was, you mentioned about a raft out at the other association lot. I've got a raft that I put out there that I invited the neighborhood to use and they have used and I hope will continue to use my raft. I'm happy to have anybody in my neighborhood use it. As you expand this particular lot here and as I said, it's 35 feetil narrow out at about 70 or 80 feet. With boats coming and going and like I say, I'm there a lot. I office out of my house. I'm in sales. The people using the beach and swimming from John's beach as you look at that lot. He's on the north side and myself on the south and people using the association's swimming out to my raft, with the boats coming and going, my feeling is it just isn't safe. I guess with that I really don't have anything else to say unless you have any questions of me. ' Emmings: I just have one. When you moved, when did you move into your property? Terry Johnson: I've been there about 6 years so it was about '85 when I moved in. Emmings: And when you moved in, I see in your affidavit that when you moved in there was a 64 foot dock there and three boats. Is that right? Terry Johnson: No. When I moved in there was a dock that, 64 feet. I'm I not sure of the amount of feet on it. That hasn't been expanded to my knowledge since I've lived there but there was only 2 boats there. Two power boats were there. In fact, I think there's depositions to that fact II that. 1 11 Planning Commission Meeting May 6, 1992 - Page 30 1 Emmings: Okay, I'm looking at your affidavit. The materials that says from my personal observation, Outlot B has been put to the following uses during the summers of the years set forth. It says 1986. One 64 foot dock, an additional section of dock and third power boat. Terry Johnson: Then it was misprinted. Emmings: This is wrong? Terry Johnson: Yeah. ' Emmings: Your affidavit is wrong? Terry Johnson: Yeah. Somebody must have written it wrong. I may have signed it... There's never been 3 power boats there since I've lived ' there. When I first moved there, there was 2 power boats and then it was about 2 years later that a fishing boat was put out there with a lift. In fact the guy, I swapped him his canoe for my lift. There was a lift that ' came along with my lot so they put that over there and then there was 3 lifts on the association lot. Then he sold it because he moved the next year and got more money than the canoe was worth and I'm still upset about ' that. But regardless, then there was just the two power boats again. I believe it was for a year or two until the Firms moved in and then they brought a fishing boat down there and then again it was 3 boats, 2 power boats and a fishing boat. Then it was I believe 2 years ago that Dan I _Hudson moved in and added the other fishing boat. So for the past 2 years it's been 2 speed boats and 2 fishing boats, 2 lifts. ' Farmakes: Are the fishing boats left at the dock or are they brought up on land? Terry Johnson: I'd say both. I think for the most part Dan Hudson would bring his up on shore. The other fishing boat was tied onto the dock and then the two speed boats were set on either side of the dock. So really it limited the swimming area and I think that's been one of the bone of contentions for some of the people in the association. The fact that there really wasn't any room for swimming there and it was really pretty narrow for them to have to come out. Especially now with the setback, it's going to make it real difficult for them. I don't have a problem with them coming over to my side or the setback to swim on my side but still, it's going to be really narrow. I put my dock on the north side of my lot using the setback now this year so that I can make my beach a little bit bigger. I've only got 85 feet of lakeshore. Farmakes: What about boat storage? Terry Johnson: Pardon me? ' Farmakes: Boat storage. Terry Johnson: They don't leave their boats. Farmakes: ...boat storage that was made? Pulling it on the property. Planning Commission Meeting 1 May 6, 1992 - Page 31 II Terry Johnson: The problem that I had was the lifts. Because of the fact that this property is so narrow down there at the lake. It's a big steep hill in fact. I maybe should have explained that to you when I showed you , the drawing. There's a big steep hill that comes down and it's real narrow down there. And with the lifts there and these two docks, they come apart" so they sit side by side and then there's two lifts down there. There really isn't any room for anybody to use this property in the wintertime or the winter months, which like I said amounts to about 8 or 9 months out of the year. ' Batzli: Are there boats stored down there? Terry Johnson: Right now? II Batzli: Are any boats stored down there over the winter months? II Terry Johnson: No. Not to my knowledge. There was a canoe rack there. We took it out. It happened to be on my property. In fact right now the sidewalk going to the association lot, part of it sits on my'property and 11 I've asked for someday in my life that that would be moved. Farmakes: So if there were 2 boats moored or docked on a dock, the 64 fee or whatever, how many watercraft were stored on land there in addition to the 2 boats? Terry Johnson: Are you talking about last year in 1981 or what time frame' are you talking about? Farmakes: Give me both. II Terry Johnson: Okay, in 1981 I didn't live there but from information that I have from the affidavits, there was no boats stored on the shore. There were 2 lifts out at the end of the dock and they were power boats that wer� out there. Since then, really to my knowledge there's been no boats on the shoreline until the last couple years. One of the individuals that has a fishing boat would bring his boat up and just leave it on the shore there II and there would be one boat, and this is the last couple years now. There would be one boat, fishing boat on the dock. The 2 speed boats at the end and then the one fishing boat was pulled up on the shore. II Farmakes: So they were stored there overnight then? Terry Johnson: Periodically, yes. II Batzli: Thank you. Anyone else like to address the commission? You can have like 2 minutes of rebuttal here. 1 Ann Cathcart: I'm Ann Cathcart again. We've been living this nightmare for about 2 years but I want to close by saying, the attorney for the II association in our final memorandum to the court and affidavit said, this is what the plaintiffs alleged in the lawsuit. There is in essence, a state of anarchy with respect to use of the outlot. We do not know what plaintiffs are talking about. This is a quiet beach with a few boats. Thell association manages the lot and the members use the outlot in a normal II Planning Commission Meeting May 6, 1992 - Page 32 II manner. Personally we feel that the plaintiffs have brought this suit to I harrass us and retaliate against other members because they have failed to get their way. And from the very beginning we have had other meetings. John Merz has offered to buy the association lot. They didn't pay their I dues. The lawsuit, since they are also defendants in the case, until we met their demands. They offered to, if we met their demands of 2 boats and they offered to pay their fees. So what I want to show you again, this is also in the memorandum that Kate made up. This is a picture of last year I in 1991. This is out little dock. Two boats at the end on boat lifts. Two fishing boats tied to the dock on either side. Plenty of room. Can you find it? Also down at the bottom, you can see Terry's pontoon. This I is Terry Johnson's pontoon. He did not do the 10 foot setback last year. So when he set back this year, his boat will be out of the picture so you can see there's plenty of room. There's plenty of room to float on rafts and innertubes. We think what should be grandfathered in is what was in I the Minutes of 1981. Thank you. Batzli: Thank you. Anyone else like to address the commission? I'll ask ' for brevity. Ivan Underdahl: Well I hope I can grant it. My name is Ivan Underdahl. I I live at 7502 West 77th Street and a member of the Trolls Glen Homeowners Association. I guess I would like to start out by saying, I agree with some of the things that John Merz has said and that Terry Johnson have said but not necessarily with all. As far as the storage over the winter 1 season, I don't think this beachlot is much of any different than the adjoining property lots. Their own lots. That's where they store their equipment too and I don't think anybody is restricted from getting down I from the upper bank, down the steps and out to the lake. There's plenty of room. I don't know what kind of equipment or such would try to get through there that wouldn't be able to get through there. And I don't think it's I really a crossroad traffic area in the wintertime. In fact I don't know who really uses that association outlot in the winter at all. It might be the neighbors on either side wanting to get back and forth to their own properties but even so, they can do that without problem too as far as I I see it. This is, we're not complaining I guess you might say about this 10 foot setback. We understand that. That may not have been fully regarded in years past but I think now we are aware of it and I know John has set up II the transit and laid out the lines and I don't dispute the accuracy of those findings. I guess I wasn't sure what he stated as far as the width between those stakes out there at the 80 foot distance. I John Merz: Ivan, it's kind of hard to see on that little plat but there's an angle...straight to the lake line. The one severely goes in and the other one is just a few degrees but...80 feet, they narrow to 60 at the l lake lot. Now it's 35 feet plus or minus a foot 80 feet out... To the best of my knowledge, that's accurate. II Ivan Underdahl: Alright, it's about 69 feet at the high water mark and as he says, then going out to a distance of 80 feet, there's a 35 foot width. That's the angulation. I think also, I don't know if it's the DNR or cities or whatever. Can make exceptions when properties are restricted in II such a way that they are very limited in our access to the lake. And as far as going out 80 feet, we don't go out that far. Our dock is 64 feet Planning Commission Meeting May 6, 1992 - Page 33 long and that's as far out as anything goes. And I know the term mooring and docking has been used perhaps interchangeably here but I don't think , there has ever been any intent on the part of our association to moor boats, if you're just referring to having a stake or a buoy or such out on the lake for mooring. We're talking about docking boats. And in the past 2 years there have been 4 boats I would say docked at this 64 foot dock II and I don't feel it's been a problem. And I guess I understood from the Council that as far as going through this permit process, it was probably to be or the 1981 baseline was sort of the starting point for the II negotiating and if there were differences, they should be worked upon and that the applicants would be given the benefit of the doubt. And I guess I would like to pursue that aspect. I think our asking for 4 boats is not unreasonable. And with respect to, well the matter was raised about _ perhaps another dock and boat also being on the property. I have some pictures here that I would like to have you see and if I can come forward, I'll show you. Batzli: Sure. Ivan Underdahl: I'll point out a couple things. Here I have, I've written' on the back, that's the original, as to when... Emmings: It doesn't say anything on this one. ' Ivan Underdahl: No but it's a reprint of the one I took out of my album on which I wrote it was taken in the fall of 1981. Emmings: Okay. So this represents fall of 1981? Ivan Underdahl: That's right. ' Emmings: Okay, we'll pass that around. Ivan Underdahl: Then if you just place this card over it... Hold it just!! like that and notice the figures I have there. I measured the width of those boat lifts...and there's a 23 foot span from the outer edge of one til the outer edge of the other. And this was at a time when we did not pay attention to the 10 foot setback. This is right up at the end of John Merz' property line. In fact it may have been on his a little bit so I'm showing that if you take another 23 feet further to the right, it goes off II the picture and that other boat...in there. And here's another angle... Batzli: Well thank you very much. Do you need your picture back? ' Ivan Underdahl: I'll get my picture back... Batzli: I'll lose it. If you're going to give it to us, give it to Kate. II Mr. Underdahl, are you finished? Ivan Underdahl: Unless you have any other questions. ' Batzli: We may. We still need to get through the public hearing. Is there anyone else who hasn't spoken that would like to address the Commission? Okay, please be brief and please limit yourself to new issued' ' Planning Commission Meeting May 6, 1992 - Page 34 1 Bernie Schneider: I'm Bernie Schneider. I live at 7501 West 77th in ' Trolls Glen. I think that the Planning Commission should consider the 1975 City Council granting us, Trolls Glen residents mooring rights. That's in our covenant and I wish that the Planning Commission would request the City Attorney to give a ruling as to whether our covenants supersede the ' ordinance amendment. We were advised that, in a court of law, our covenants would prevail. That's all I have to say. Batzli: Thank you. Any more comments? Is this something new? Okay, I'll give you about 30 seconds. Terry Johnson: I'll make it quick. Jeff had asked about where the boats are moored. I've got a picture here that shows the boat up on the, this was last summer, where he stored his, the other fishing boat and the two lifts. I Batzli: You guys want to see where it was last summer? If there's no more public comment, do I have a motion to close the public hearing? Erhart moved, Emmings seconded to close the public hearing. All voted in favor and the motion carried. The public hearing was closed. Erhart: What are we deciding? Did we decide if there was ever 4 boats there? Aanenson: There wasn't a survey done in 1981. All we presented you is their affidavits stating what was in place. Staff didn't do a survey in 1981. Batzli: I don't believe that even the association would, well unless you count that separate dock who was a neighbor, who was either accidentally or intentionally docked there but the association itself, as an association, ' did not have 4 boats on the property at that time. Is that a fair statement? ' Resident: Yep. Erhart: Okay, and what was, 1975 was when they were granted with the ' beachlot. What did we have, no definition of what they could use it for? Aanenson: When the beachlot was in place? Erhart: When the development was done. We didn't at the time regulate how many boats? We had no ordinance? Was 1981 the first ordinance? Aanenson: Yes. Erhart: Okay. And so we had no covenant. There was no covenant with the city and the beachlot owners before 1981? There's no legal? ' Aanenson: They have a covenant, yes. Erhart: Between themselves. • i Planning Commission Meeting May 6, 1992 - Page 35 Aanenson: As part of the subdivision, yes. Erhart: And that doesn't reference how many boats or anything? ' Aanenson: No. It just says boats shall be moored in the common area. As II designated by the association. That's what they're saying. Their intent was always 4. Erhart: Then in 1981 we came out with our first beachlot ordinance? , Aanenson: Correct. Erhart: At that time it was non - conforming at that point? ' Aanenson: Right. What we did, and let's go back to the grandfathering. What we did is we tried to take a picture in time of what they had in place' and that's what they're grandfathered with and that's what, when we were asked back in 1991 on the complaint to go back and say you were not in compliance with the grandfathering, the attorney did say we could enforce what they had in place in 1981. So that issue was raised as far as can we II enforce what they have in their covenants. The new ordinance can supersede what they had in place in 1981. Erhart: Okay, the ordinance on the 10 foot setback now for dock and mooring. Did you find that the extended lot, is it an extended straight lot line or is it perpendicular to the shore? Aanenson: Somewhere they're all supposed to meet in the middle of the lake. Erhart: So perpendicular to the shore. So this 35 feet is irrelevant. Aanenson: Again, I know Dick was concerned about this but in speaking wit" Roger, this comes back to the grandfathering issue. Okay? If that's the way the dock was built in 1981 and they continued to put the dock in place the same way since 1981, they can have the dock the same way. If they had II moved the dock. Erhart: No the point is, the argument is where is this lot line out in the water? And this gentleman over here contends that it comes to a point that's approximately 120 feet from the shore and you're saying that they all end up at the same point out in the middle. Aanenson: They all end up, they meet eventually in the middle of the lake. I don't know. Erhart: Some point. All at the same point in the middle of the lake. 1 Aanenson: No, no, no. Erhart: Well, not at the same point but at a point perpendicular to the general shore in the area. i 1 Planning Commission Meeting May 6, 1992 - Page 36 Conrad: They don't follow the lot line. They're perpendicular. I don't think they follow the lot line. Ahrens: It depends on different... 1 Emmings: I thought you extended the lot line. Conrad: No. You go at a right angle to the lakeshore. Batzli: Dick, do you know the answer to that? ' Richard Wing: The Attorney discussed that. He said there was an issue with the angle of a curved bay but you basically...imaginery point just right in with the shoreline...because we're only worried about the first ' few feet. Because a raft's out in 8 feet of water. The concern about how can we do it. I'm kind of losing my thought here...We could have it surveyed officially. That part then goes perpendicular to the shoreline or right angle to the shoreline out...so there wasn't any angle there... Erhart: It's only reasonable to have it perpendicular to the shoreline instead of using it at some angle. That's the only questions I had. ' Batzli: Ladd. Let's add another criteria to our list of going through those and those are that we concentrate on the little blank lines on the action that we have to take. I think it's on the page you're looking at there Ladd. Conrad: Since the standard for a dock length is 50 feet and they've had 1 64. I guess if they've never deviated from 64, that's what they can have. I guess I'm still, I'm comfortable at what was there in 1981 and would be persuaded by the City Attorney if they said the covenants or, but I don't believe the City Attorney would say that we're bound by covenants entered into with themselves. Prior to 1981 beachlots had no rights for dockage. So I'm not persuaded that anything prior to 1981 really is going to influence me. Erhart: You mean no rights or no regulations? Conrad: They have no rights. Literally prior to 1981. Ahrens: But the document that Kate just read said they did have the right. Conrad: Prior to '81, before the beachlot ordinance went in, literally there was nothing governing what could happen. It therefore meant there were no, my interpretation Joan is that there were no rights to have boats. They were used but prior to 1981 there weren't. That's my understanding. Anyway, I'm comfortable at the two boat limit. Based on 1981 data that we've seen. 1 Batzli: The canoe rack? Conrad: I don't know. Batzli: I'll let you think about that one. Matt? Planning Commission Meeting May 6, 1992 - Page 37 Ledvina: I don't have any comments at this point. Batzli: Would you defer on the•2 boat /4 boat issue completely or you just haven't made up your mind? Ledvina: Well, it seems to me that there's some, the affidavits are conflicting as it relates to the number of boats that were docked and moored at this site. Am I mistaken in that? Emmings: I don't think so. I don't think anybody says there were more than 2 boats there in 1981. Ledvina: Okay. Ivan Underdahl: Didn't I just show you pictures of 3 boats? You didn't II see that? Batzli: Yes. Emmings: But that was the neighbor's boat right? Ivan Underdahl: No, he was a member of the Association. It was on the recreational outlot. 1981. I thought you just saw it. Batzli: How that particular boat has been characterised, and I don't want to debate the point right now but it's our understanding that that was not II an association dock. It happened to be the next door neighbor who had placed his dock temporarily on the Association lot. Or boat. One of the two. And so it wasn't and it has been considered up until now, when you II showed us those photographs, that it was, it hasn't been suggested to us that that was an association boat on the beachlot property. So that's what we're saying. I understand your point. 1 Ledvina: Well I guess my feeling is that the situation as it existed, the physical situation as it existed in 1981 would take precedence so I would, I feel that 2 boats would be allowable. Batzli: Okay, Steve. Emmings: Well on the dock, certainly I think the 64 foot dock should be II continued. I've got a question now. As I understand the request of the Association's, they're asking for 2 boats at the dock and 2 boats moored II and I don't know what that means. Ivan Underdahl: No. No. That form is such that it's got to be based upon, the 1981 and it didn't talk about new... Emmings: I'm not talking about the application. Ann Cathcart: You want to see it just like the picture in 1981... Emmings: Okay. Who's speaking for the Association? Let's get, are you I ma'am? i Planning Commission Meeting May 6, 1992 - Page 38 Ann Cathcart: Yes. ' Emmings: Okay. On the information that we have on the sheet in front of us, it says you're asking for 2 boats moored and 2 boats docked and that's ' what your letter says I think. Ann Cathcart: Our letter says we want 4 boats docked. 4 boats. Therefore it is time we request a permit for mooring 4 boats. ' Emmings: Alright. I have to change my report. Ann Cathcart: And based on...really what we physically... Emmings: No, I know the argument. I just want to be clear on what you're asking for. Alright. My position on this is that going, again. I'm pushing for a case by case deal here, and not getting too tied to the physical inventory. The Statutue or the ordinance that we passed says that we've got to look at the use as it existed on or before January 18, 1982. ' So we're basically, we're not just looking at 1981. We're looking at the uses that existed on or before January 18, 1982. Now it's pretty clear to me that they had 2 boats in 1981, and if you want to get real picky and go with that, we don't actually have an inventory but that's been proven in other proceedings. 5o we know there were 2 boats there. But I'm persuaded by the fact that in 1975 there were covenants approved by the City that said that these folks could have boats at their beachlot and that was a matter to be determined by them. We've got Minutes from a meeting in June of 1981 where they said we're going to have 4 boats out here. Right then they had only 2 but they planned for 4 and I don't think that ought to be 1 ignored because again, I don't think it's unreasonable. I might think it was unreasonable if I was looking right at it but that's a little different. I just don't think it's an unreasonable use of the property and I don't think we should ignore the fact that they planned for 4 boats. So given that, I would say go with the 4 boats on this one. Again, if we're going to go strictly by the physical inventory, they don't get a canoe rack because they didn't have one in 1981. But that seems like a real reasonable use for a neighborhood for folks who have a beachlot and want to use the lake. I can't see that some canoes are going to bother anybody very much. So because it's reasonable, I think it should be granted. Batzli: Jeff. Farmakes: We haven't talked too much about this boat storage issue. What I'm trying to do, it's a confusing issue. I think everybody will agree. We're talking about requests that you moor 2 boats, that you dock 2 boats and that you would store some boats on the shore. You're shaking your head back and forth but the difference between 1986 and 1981 differs quite a bit from the affidavits that I'm hearing. Ann Cathcart: We always...taken up. Farmakes: Taken up? Is that removed or stored on the property overnight? Ann Cathcart: Stored in somebody's garage. Are you talking about the winter? i Planning Commission Meeting ' May 6, 1992 - Page 39 II Farmakes: Winter or overnight. Just boats stored on the property out of the water that are on the property. II Ann Cathcart: No. No. Terry...on the beach...little kids could get in easier and than jumping in off the dock... Farmakes: There's disagreement obviously. II Terry Johnson: You saw the picture. Jeff if you're addressing me. You il saw the picture and I can tell you that that individual's boat on numerous times...summer, it was on the shore. Ann Cathcart: Maybe 3 times Terry. Maybe 3. II Batzli: Excuse me. Excuse me. Let's get, Jeff. Please. Farmakes: I don't mean to lose track with this but the issue of the 2 II boats, I think if that's what was there in 1981, that that's the position the City should take. The issue of boat storage and so on, I am not, it II doesn't seem like it's that big a lot to be storing boats on there. Batzli: Excuse me. Jeff, please address your comments to me and not the participants. II Farmakes: Okay. I'm not, after reading this, there seems to be a lawsuit involved here. There seems to be bad feelings between the two groups but 11 see this as just an issue of individuals asking the city to enforce an ordinance that they had in 1981. And I don't see that as unreasonable. The City has been lax in enforcing the ordinance and I have looked at your II comments on your letters from the homeowners association. Lakeshore association and you're ignoring simple issues in riparian law. You're looking at it solely from your direction and what's on your deed and the issue of covenants from within your own association while you're ignoring I the overlapping jurisdiction of the city and of the State in regards to riparian law. And it seems to me that if you're going to get involved in this and you're going to spend $13,000.00 with a lawyer, then you should have had some education in regards to that because your letter obviously is' showing that you're not understanding riparian law. Even though it's on your deed, and I checked with the State on this today. Even though it's on your deed and you've had it on your deed, doesn't mean you can use it. And ! that's an important point. What you're ignoring here is the obligation of the fact that you've been not in compliance with the city zoning ordinance which the city is entitled lawfully to have for the past decade. You're having another adjacent homeowner asking that the ordinance be enforced and it's not unreasonable. I'll leave it at that. I think that there should be 2 boats there and this lot is even, it seems to me able to handle less II than the previous one. Batzli: Thank you. Joan. II Ahrens: I'm going to go along with the applicant's request for the same reasons articulated by Steve. II II II Planning Commission Meeting May 6, 1992 - Page 40 Batzli: Okay. What I'm lookin g at is a little bit different than Steve but yet I would go back to my, at least proposed way of looking at these and that is, I think we've got a lot of testimony. I don't know that there are a lot of conflicting opinions on it. I think we've seen photographs from Mr. Underdahl and that boats were on the beach at that time that he ' took the picture. We've seen a lot of this. But what I'm going to look at is the ordinance that talks about what is the use, and this may sound like I'm about to. split the baby but clearly there was 3 boats on that lot prior to 1982 and so I don't believe we're intensifying the use by giving them 3 ' boats. 4 boats is intensifying the use. The question of whether that's reasonable or not, I don't know. I grew up on a lake and once you have 3 boats, is 4 an intensification? I don't really know but I'm-not going to make that decision to say that it's not. So I would actually split the baby and go with 3. The 64 foot dock is fine. I think the canoe racks would not intensify the use. It sounds like they've been there before. Didn't sound to me like the neighbors had a problem with the canoe racks in and of themselves. That's where I'd go on it. As far as procedure on these Kate, what do you need from us? Do you need a motion? 1 Aanenson: Yeah, with your recommendation for those blanks. What you want to pass on. ' Batzli: Okay. I would entertain a motion from anyone or if somebody wants to discuss it further prior to making a motion. John Merz: Mr. Chairman, may I ask just one thing? I think there's been a little bit of miscommunication. My attorney had a memorandum. An 8 page memorandum that apparently none of you have ever seen and it should strictly clarify what this vote should be. Before you take the question of 1 the vote may be misunderstood it's intention but the big packet of documentation which you have there was not for general distribution but only for it to be available. ...8 page memorandum there that clearly ' delineates all these questions and I think it would be unfair for you not to at least maybe publicly read it. Not myself but somebody read it prior to you taking the vote. Batzli: Well what I'm going to do is I'm going to have this placed in the Minutes so it will be entered. It will be part of the record and so it will be available for the Council. If in fact what we determine is not, and I apologize for not having that in front of us. I don't know that at this point we can take a long enough recess to read it and I apologize that to the extent but you can make it part of the record. It will be part of the record and to the extent that, and I guess I would encourage the Council to take a look at it to the extent that what we determine tonight is adverse to what your attorney has written here. Is that? That's what we can do. John Merz: ...8 pages takes all the speculation out of it. Emmings: No it doesn't because I write memorandums for a living and I'll take either side of any question and produce an 8 page memoranda or 20. So that tells one half the story and they probably have a memoranda from their ' attorney that addresses the other side of the question. So it really wouldn't do us any good to read half of it. Planning Commission Meeting II May 6, 1992 - Page 41 1 John Merz: Then I'll ask to make it part of the record if you can address it. Batzli: It will be. And again, I apologize for not having that in front of us. I don't know, we can't do anything with that at this point. Conrad: Mr. Chairman, would you explain why you feel that 3 was documented? Batzli: I'm looking at the evidence that Mr. Underdahl presented. That 1 there was a third boat on the property being used so there was a use on that property of 3 boats. The Statute looks at what was the use prior to January of 1982. It appears that there were was a use of 3 boats. Conrad: The third boat was at that dock? Batzli: Well, no. It was on the property line from his calculations. It II was within the property line being stored somehow on a lift, moored, whatever at the property. I mean it's a matter of interpretation Ladd. We're each looking at the evidence. We're each weighing, you're looking at it's probative value trying to decide what is the correct answer here. I'm looking at it. I'm saying it looks to me like there was 3 boats. That was the use. I don't think I'm intensifying it anymore than what existed at 1 that time. I don't know that there was, that that boat existed. Erhart: How do you know the guy just wasn't swimming on it. 1 Conrad: Yeah you know. There's a dock and there are 2 boats on the dock that is owned by the recreational beachlot. I don't know how you can even 1 guess where that other boat is. Batzli: I'm taking Mr. Underdahl's calculations at their face value. Now, you don't have to take those. I mean you can... 1 Conrad: No, I think use is important to me and that's what I'm concerned with. I'm also concerned with the fact that this is a 3,000 square foot II lot. Ann Cathcart: No, it's 5,000. That's the whole point. Conrad: But let me, I'll just say another thing and I understand your point but typically today, unless you had 20,000 feet, you wouldn't. So your not even 25% of what we would grant as a beachlot today. Not even 25 %1 so that's why I'm a little bit more sensitive to the neighbors on this one because it's a very small beachlot and it's tiny and to be honest, 10 years ago, 12 years ago it was this type of thing that started making us develop a beachlot ordinance. And what I want to do is protect as many rights as you have yet enforce some of the intent or at least project some of the intent. We're trying to protect neighbors and also trying to protect the lake a little bit. But I go back, I want to make sure. Brian, I think I II could justify, I could go with 3 boats simply because a riparian. I always use what a riparian lot owner could get because that's how that developer could have developed that lot. And that has a tendency to protect the lake) in terms of use. In terms of how some dangerous safety issues but also 1 II Planning Commission Meeting May 6, 1992 - Page 42 II just simply from preserving and protecting the lake. So I use that as a I guideline so I think in my mind we could go that route and say they deserved what the riparian, typical riparian lot might get. On the other hand, I'm not convinced that, I go back to what I saw for 1981 and I see 2 1 boats. I think on a small property like this, it's just teeny. In anybody's standards I think the 2 boats seems more reasonable than the 3. I was curious where you got the 3 Brian and I thank you for that. I will I make a motion. We'll see where this one goes. I make a motion that the non - conforming recreational beachlot permit from Trolls Glen be approved with the exception of a total of 2 boats be allowed. II Batzli: Is there a second to the motion? Erhart: I'll second it. ,1 Batzli: Discussion. Farmakes: I'd like to clarify one thing. Is that moored or docked? I Conrad: I don't care. 1 Batzli: Steve, any discussion? Emmings: No. All I can do is repeat myself. Do you want me to do that? 1 _Batzli: No. Conrad moved, Erhart seconded that the Planning Commission recommend to 1 approve the Non - Conforming Use Permit for the Recreational Beachlot for Trolls Glen Homeowners Association with the 64 foot dock, 1 canoe rack, 2 boats docked or moored, and a swimming beach. Conrad, Erhart, Ledvina and I Farmakes voted in favor. Ba Emmings and Ahrens voted in opposition. The motion carried with a vot of 4 to 3. Batzli: Would you like to state your objections? I Ahrens: I have a real problem. You know we're dealing with a situation where there's a 1975 covenant approved by the City telling this association I that they can set up, they can have mooring rights on the lake and that the association can control it and make up their own rules and then we come along and say, we were only kidding. You can't really do that. I just 1 don't see how we can. Erhart: If someone owned the lot in 1975, how many boats could they have at their dock? I Ahrens: We didn't set that forth. I Erhart: No, but now we do right? Ahrens: Yeah. 1 Erhart: So the same argument would say that somebody owned a house on the lake in 1975, that we can't regulate. 1 Planning Commission Meeting II May 6, 1992 - Page 43 Ahrens: Right, but we're saying that in 1981, we're going to take the numbers you had in 1981. That association has Minutes from their meeting I authorizing them to use 4 boats. Emmings: You already won Tim. She's just stating her position. Erhart: I know. Batzli: Anything else Joan? ' Ahrens: And that was their use in 1981 and I think that's what we should go with instead of making something up out of the blue. Erhart: I'm trying to understand this Steve too. This is very confusing. Batzli: Steve, do you have anything? 1 Emmings: I think this case is different again because we have a document here that shows what they were proposing to do. I think it's reasonable. I think we're running a risk here of getting way too strict and legalistic.' Oh, the picture shows 2 boats, so it's 2 boats. Now in some cases those 2 boats might be reasonable and for some of the reasons Ladd outlined, that ' might be reasonable on this lot but it just, I have a little different opinion there. I think 4 boats is okay on this lot and that's what I would grant. That's all. Batzli: My sentiment is not that I don't care as much what their intent was. I think we can regulate and like Tim said, but I at least take the evidence that they were able to present at it's face value and what they were telling us so that's why I would give them 3. Other than that, I agree with the motion. It's the number of boats that's the issue. Okay, this will go onto City Council when? Aanenson: May 18th. Batzli: May 18th so please follow the issue to the City Council. They will make the final determination. Thank you for coming in. PUBLIC HEARING: ZONING ORDINANCE AMENDMENT TO AMEND CHAPTER 20 OF THE CITY CODE PERTAINING TO MINING AND EARTH WORK. Sharmin Al -Jaff presented the staff report on this item. Chairman Batzli called the public hearing to order. There was no one present wishing to speak on this item. Erhart moved, Emmings seconded to close the public hearing. All voted in I favor and the motion carried. The public hearing was closed. Batzli: Any discussion? Anyone have any comments? Is there a motion? II Planning Commission Meeting 1 May 6, 1992 - Page 44 Erhart moved, Emmings seconded that the Planning Commission recommend to approve an amendment to Section 20 -1351 of the Chanhassen City code and repeal Sections 20 -1352 through 20 -1384. All voted in favor and the motion carried unanimously. PUBLIC HEARING: INTERIM USE PERMIT FOR GRADING /EXCAVATION LOCATED AT LOT 5, VINELAND ADDITION, FORTIER AND ASSOCIATES. Public Present: 1 Name Address Daryl Fortier 408 Turnpike Road, Golden Valley Jim & Mary Stassen Peaceful Lane and Pleasant View Road Sharmin Al -Jaff presented the staff report on this item. Chairman Batzli called the public hearing to order. Daryl Fortier: First, I'm Daryl Fortier representing Frank Beddor, Jr. He ' is purchasing the property from Mr. Owens. We're in agreement, I'm in agreement with the staff report. All 16 conditions of 17. The only one I would like to discuss is point number 10 which says there shall be an emergency overflow swale constructed to the southwesterly portion of the site to drain across Peaceful Lane. This would, for a swale to work as you all understand. This allows water to pass over the surface of the ground. The surface of the ground at that point is controlled by the elevation of Peaceful Lane which is about 1005. Our 100 year storm is at about 995.5. For us to get a swale to go up another 5 feet would require us to have eight 100 year floods. Eight 100 year rains in a row. That is ' concurrently before the water would get that high. Emmings: What's your point? Daryl Fortier: My point is we don't think that's a viable idea. We think that it's a good idea for lots that work but it won't apply to this lot. I think a more reasonable way of controlling an overflow situation here is to provide a second pipe which would be normally set at the 100 year elevation such as if the first pipe to outlet the pond ever did become obstructed, that as the water rose to the 100 year elevation, it would then flood into 1 this other overflow pipe and allow us a secondary means of draining the lot. It's just a detail to work out with engineering. Emmings: The engineer is nodding. You've already won. 1 Daryl Fortier: Okay. That's the sole issue. Batzli: This is a public hearing. Would anyone else like to make a comment on this issue? Mary Stassen: My name is Mary Stassen and Jim and I live at the corner of 1 Peaceful Lane and Pleasant View Road right across from the construction work that they'll be doing. Back in last year's meetings when this whole 1 Planning Commission Meeting May 6, 1992 - Page 45 II thing came up, before any construction activity was going to begin over on that development, the road was to be straighten out and I guess that's what" my concern is. That I haven't heard anything about that and right now, because that used to be where all the traffic, where Powers Blvd. went through, it's 125 feet across that entrance right there. Emmings: My recollection of that, and maybe I'm wrong. My recollection iJI that before, is it Nez Perce, got connected to Peaceful Lane, that's when that intersection was supposed to be straighten out. Remember? 1 Batzli: Dave, let's. • Hempel: If I could clarify. Yes. Partially correct there. What the City, _ was really partaking and which actually they have ordered a feasibility report to be prepared for the actual extension of Nez Perce through the Peaceful Hills Drive I guess it's called onto Pleasant View Road. At that 1 time we would address the proper intersection at Peaceful Hills. Batzli: What kind of timeframe? II Hempel: City Council approved authorization of the feasibility study for the extension of Nez Perce Drive on March 13, 1992. We have a consultant 1 working on it and we have a tentative date of I believe June 22nd. Well that's a City Council date but one of the Planning Commission meetings in June. Probably the later one in June. Emmings: And is the consultant looking at fixing that corner that they 1 live on? Hempel: That's correct. I . Emmings: So that's part of the project. Hempel: It will be a total package. Actually there may be two options... 1 Batzli: Okay. Do you have any more questions? I Mary Stassen: Well we're just concerned about, having that 125 feet, you can pull in a dump truck and turn a complete circle in that amount of I space. We're basically like 35 feet from Peaceful Lane and that corner cuts at such an angle that we can hardly get out of our driveway and people can come around at a pretty fast speed so we're really very concerned about this and I don't know where the construction traffic is going to be accessing into the land but it also would be nice if that traffic could be II moved perhaps down Peaceful Lane or maybe even access in off of Pleasant View Road instead of right across from our driveway. Or right across from 1 our house. Emmings: How will they be getting in and out to the construction site? Hempel: I'll defer that question maybe to Mr. Fortier to address. The actual access point. 1 1 Planning Commission Meeting May 6, 1992 - Page 46 Daryl Fortier: We haven't selected an access point but it occurs to me ' that it would seem reasonable as part of the traffic management plan to put up a barricade so that you see the barricade on Pleasant View Road that would preclude traffic from hugging the road next to the Stassen's driveway. Instead of sweeping a close curve, this would preclude them from ' going there and it would force them to take more of a 90 degree turn so it would temporarily close down the throat of Peaceful Lane. Since there's only 4 residents who use that, it seems to me to be a reasonable interim solution. Emmings: Do you put up the barricade or does the City? Daryl Fortier: We can have that put up as part of the project. Emmings: So we could make it a condition here that you put up a barricade to keep traffic on the south end of that away from the Stassen's property and that would be alright? Daryl Fortier: That's acceptable. Mary Stassen: Do you know Daryl where they would go on...? At what point? ' Daryl Fortier: I have a good feeling that they're going to go onto the land just about straight across from your driveway. That's where it doesn't have any rise to it and it's pretty flat. There's a couple trees ' they have to move there. So they're going to relocate two trees and because that's flat and that's where they have to scrape out organics. They'll come in with some backhoes first at that location and once they get the backhoes in there, since that's where they have to do the work, that soil will be messed up and I expect that's where we'll be coming in. There is a requirement that we construct a 50 foot long gravel patch so that the mud will be taken off the equipment as it goes in and out of the site. Especially the trucks that are hauling dirt. So we'll try to keep the streets as clean as we can. Jim Stassen: ...dirt in there, you were coming in off of Pleasant... A little bit further down. Is that possible that exit could be used? Daryl Fortier: If I could have the overhead projecter back on I can show 1 you what the difficulty is there. Mr. Owens had brought fill in right about this location. Brought it across the Troendle property and put it down here. We have to scrape out organics up in this area... (There was a tape change at this point in the discussion.) Batzli: Any other comments? Emmings moved, Erhart seconded to close the public hearing. All voted in favor and the motion carried. The public hearing was closed. Ahrens: My questions have been answered. I don't have anything else on this. I would go along with the staff report. r Farmakes: Go along with the staff recommendation. 1 Planning Commission Meeting May 6, 1992 - Page 47 Emmings: Same. Ledvina: The condition number 4 indicates that the applicant shall provide, storm water runoff calculations for ordinary high water. I'm sorry, yes. That's right. Ordinary high water level, 100 year flood elevation and pipe hydraulics prepared and signed by a professional engineer. I'd like the II additional text added, registered in the State of Minnesota. Professional Engineer registered in the State of Minnesota. Emmings: What's the point of that because I don't understand it? ' Ledvina: Well, generally you want individuals that are working, II professional engineers that are working on projects here to be registered in this state as opposed to Alabama or. It's standard terminology when you're speaking of signatures of professional engineers. Batzli: Anything else Matt? 11 Ledvina; No, that's it. ' Batzli: Okay, Ladd. Tim. Batzli: I think it looks good. I would like to see an addition, if possible about the barrier being put up to make them go wide and avoid their property so they don't hug that corner. Would anyone like to make a motion? Emmings: I'll move the Planning Commission recommend approval of Interim Use Permit #92 -3 with the conditions in the staff report. 3 will be modified according to what Sharmin told us before. Saying Minnehaha Creek!' Watershed District. 4 will have the change language, professional engineer be registered in the Minnesota. Number 10 will be changed. I don't know what went on there between our engineer and Daryl but 10 will be changed toll conform to what they agreed to here. 11, there was an addition. If the feasibility study for the extension of Nez Perce Drive. 18, there be a new 18. Yeah, there'd be a new condition 18 that would say that during the construction period, the applicant shall locate and maintain a barricade on, the west side of Peaceful Lane at it's intersection with Pleasant View. The purpose of the barricade shall be to keep construction vehicles from interfering with the Stassen's use of their driveway. I have a note from our leader. Give me one minute to read it. What? Batzli: In accordance with the plans. 1 Emmings: In accordance with the plans dated April 6, 1992. Stamped Received April 6, 1992. 1 Batzli: I'll second it. Emmings moved, Batzli seconded that the Planning Commission recommend 1 approval of Interim Use Permit #92 -3 in accordance with the plans stamped "Received April 6, 1992" and with the following conditions: r i Planning Commission Meeting May 6, 1992 - Page 48 1 1. The applicant shall provide the City with a letter of credit in the amount of $7,000. to cover any road damage, maintenance of erosion control measures and site restoration. ' 2. The applicant shall submit $238.50 grading permit fee as required by the Uniform Building Code. The applicant shall also be responsible for reimbursing the city for all inspection and attorney fees associated with processing and enforcing the permit. The inspection fee shall be computed at a rate of $30. per hour. 3. The applicant shall obtain and comply with all permit requirements of the Minnehaha Creek Watershed District. 4. The applicant shall provide storm runoff calculations for the ordinary high water level, 100 year flood elevation and pipe hydraulics prepared and signed by a professional engineer registered in the State of Minnesota. 5. The applicant shall supply the City with a mylar as -built survey prepared by a professional engineer upon completion of excavation to verify the grading plan has been performed in compliance with the 11 proposed plan. 6. A stockpile must be provided for the topsoil which will be respread on the site as soon as the excavation is completed. Topsoiling and disk II _ mulch seeding shall be implemented immediately following the completion of excavated areas. 7. Noise levels stemming from the operation are not to exceed MnPCA and EPA regulations. If the city determines that there is a problem warranting such test shall be paid for by the applicant. 8. Hours of operation are limited to 7:00 a.m. to 6:00 p.m. Monday thru Saturday and prohibited on national holidays. If the City Engineer determines that traffic conflicts result due to rush hour traffic ' flows, the hours of operation will be appropriately restricted. 9. The city will work with the County Sheriff to coordinate speed and weight checks. If trucks are violating traffic laws, staff will require that the operation be shut down and will ask the City Council to revoke the permit. 10. The applicant and the City Engineering staff will get together to determine how to control the emergency overflow situation in the southwestly portion of the site draining over Peaceful Lane. 11. The applicant shall incorporate any modifications to the site grading and /or storm sewer improvements as a result of the approved 11 feasibility study for the extension of Nez Perce Drive. 12. The applicant shall be responsible for adjustment of all sanitary sewer and water service stubs along Pleasant View Road and Peaceful Lane. 1 Planning Commission Meeting II May 6, 1992 - Page 49 13. The applicant shall convey to the city a drainage easement over the proposed pond. The easement limits shall be confined to the 100 year II flood elevation. 14. The applicant shall be responsible for any and all road damage sustained from the truck hauling and construction activities. 15. The applicant shall cosntruct and maintain a gravel construction access to the site. Access to the site shall be restricted to this II access point only. 16. The applicant shall convey to the city a drainage easement over the proposed pond. The easement limits shall be confined to the 100 year II flood elevation. 17. The landscaping shall be discussed with staff. The applicant shall II submit landscaping plans for staff review and approval. 18. During the construction period, the applicant shall locate and maintain a barricade on the west side of Peaceful Lane at it's intersection with Pleasant View. The purpose of the barricade shall be to keep construction vehicles from interfering with the Stassen's II use of their driveway. All voted in favor and the motion carried unanimously. PUBLIC HEARING: INTERIM USE PERMIT FOR GRADING /EXCAVATION LOCATED AT LOT 7, PARK ONE 3RD II ADDITION, FORTIER AND ASSOCIATES. Sharmin Al -Jaff presented the staff report on this item. Chairman Batzli called the public hearing to order. Daryl Fortier: I'll keep this one very short. I'm Daryl Fortier representing Frank Beddor. We're in agreement with the conditions and the I addendums or amendments that Sharmin is recommending. The only point I would clarify for those who like to use professional engineers registered in Minnesota is that the person who prepares a survey is a licensed • surveyor. Not an engineer. Erhart: Licensed in the State of Minnesota though. Daryl Fortier: But he is a surveyor. Emmings: But the last one was a different thing altogether. That was hydraulics. Hempel: We were talking about storm sewer. Batzli: Thank God we got that cleared up. Okay. This is a public hearing. Does anyone have any comments in regards to this application? 1 Planning Commission Meeting May 6, 1992 - Page 50 Erhart moved, Ledvina seconded to close the public hearing. All voted in favor and the motion carried. The public hearing was closed. Batzli: I'm going to call on you first Steve. Do you have any comments? Emmings: No. Batzli: No comments? You like it? Okay. Ladd. Okay. ' Farmakes: I go along with staff recommendations. Ahrens: Me too. Batzli: Okay. I have nothing to add other than thank you very much for being patient to stick around for our lengthy other hearings. Is there a motion? Ledvina: I recommend that the Planning Commission adopt the following motion. The approval of the Interim Use Permit #92 -2 with the conditions, 14 conditions identified by staff. Modifying condition 5 to read, the applicant shall supply the City with a mylar as -built survey prepared by a professional surveyor registered in the State of Minnesota upon completion of excavation to verify the grading plan has been performed in compliance with the proposed plan. 1 Erhart: I'll second that. Ledvina moved, Erhart seconded that the Planning Commission recommend approval of Interim Use Permit #92 -2 with the following conditions: 1. The applicant shall provide the city with a letter of credit in the amount of $2,500. to cover any road damage, maintenance of erosion control measures, site restoration and driveway construction. 2. The applicant shall submit $153.00 grading permit fee as required by the Uniform Building Code and pay for all city staff and attorney time used to monitor and inspect the operation. The inspection fee shall be computed at a rate of $30. per hour. 3. The applicant shall obtain and comply with all permit requirements of the Riley- Purgatory -Bluff Creek Watershed District. 4. The applicant shall revise the proposed grading plan to ensure the northerly 20 feet of the site remain undisturbed as outlined in the Preservation Easement Agreement. 5. The applicant shall supply the city with a mylar as -built survey prepared by a professional surveyor registered in the State of Minnesota upon completion of excavation to verify the grading plan has been performed in compliance with the proposed plan. ' 6. A stockpile must be provided for the topsoil which will be respread on the site as soon as the excavation is completed. Topsoiling and disk 1 II Planning Commission Meeting May 6, 1992 - Page 51 1 mulch seeding shall be implemented immediately following the completion of excavated areas. 7. Noise levels stemming from the operation are not to exceed MnPCA and EPA regulations. If the city determines that there is a problem, warranting such tests shall be paid for by the applicant. 8. Hours of operation are limited to 7:00 a.m. to 6:00 p.m., Monday through Saturday and prohibited on national holidays. If the City Engineer determines that traffic conflicts result due to rush hour traffic flows, the hours of operation will be appropriately restricted. 9. The city will work with the County Sheriff to coordinate speed and weight checks. If trucks are violating traffic laws, staff will require that the operation be shut down and will ask the City Council II to revoke the permit. 10. Prior to starting grading activities, all trees designated for preservation shall be protected by a snow fence for staff's review an approval. 11. All slopes 3:1 or greater shall be stabilized with erosion control 11 blanket specifically adjacent to the driveway entrance. 12. The applicant shall construct and maintain a gravel construction ' access during the grading operation and paved with temporary bituminous surface upon completion of site grading until the site develops. 13. The applicant shall demonstrate and employ measures to control erosio from the proposed driveway. 14. The applicant shall enter into a grading permit and provide the necessary security to guarantee compliance of the condition of approval. All work shall be completed by October 15, 1992. All voted in favor and the motion carried unanimously. PUBLIC HEARING: WETLAND ALTERATION PERMIT FOR THE RECONSTRUCTION OF COUNTY ROAD 17 AND THE MITIGATION OF AN ADDITIONAL 0.05 ACRES OF WETLAND ALONG LAKE DRIVE. CITY 0 CHANHASSEN. Kate Aanenson presented the staff report on this item. Chairman Batzli r called the public hearing to order. Batzli: The record should show that there's no one but Dick Wing in the II crowd and it doesn't look to me like he's going to speak on this issue. Conrad moved, Erhart seconded to close the public hearing. All voted in 1 favor and the motion carried. The public hearing was closed. 1 Planning Commission Meeting May 6, 1992 - Page 52 Batzli: The public hearing is closed. Comments. Suggestions. Joan. ' Ahrens: Is muck the same as topsoil? Aanenson: It's a landscape term. r Ahrens: Is that a term of ours? Aanenson: Yes. Trade term. Ahrens: I don't have any more questions. ' Batzli: Jeff. Steve. Ladd, anything? - Conrad: No. I like it. I like how the city handled this. ' Batzli: Okay, thank you. Tim. I don't have any questions other than to just ask the general question of, if we constructed this within the last couple of years, why the heck didn't we know there was going to be curb and gutter going in there? Why do we have to do it now, just out of idle curiousity? Aanenson: Dave may speak to why that segment was left out of the original improvements. Batzli: Was this just kind of an oversight the first time we did this? Hempel: I think the scope of the project back then was not realized. Future expansion of Powers wasn't looked at to be all honest. Batzli: Yeah, okay. Is there a motion? Ledvina: I would like to make a motion recommending that the Planning Commission approve the Wetland Alteration Permit #92 -5 as shown on the plans dated April 6, 1992 with the 3 staff conditions. Conrad: Second. Ledvina moved, Conrad seconded that the Planning Commission recommend approval of Wetland Alteration Permit #92 -5 as shown on the plans dated April 6, 1992 with the following conditions: 1. The wetland mitigation area shall be 0.1 acres. 2. Type III erosion control shall be installed between the existing wetland area and all disturbed areas and shall be removed once the vegetation has been re- established. 3. All disturbed areas shall be spread with topsoil /muck from the project to revegetate the area with native vegetation. All voted in favor and the motion carried unanimously. 1 . 1 Planning Commission Meeting May 6, 1992 - Page 53 APPROVAL OF MINUTES: Chairman Batzli noted the Minutes of the Planning Commission meeting date April 15, 1992 with the following comment. 1 Batzli: I have one question on the Minutes personally here. Was the approval last week of the lots in the rural district 15,000 square feet? 1 Aanenson: The minimum. Batzli: Minimum. 1 Aanenson: Yes. Batzli: Because we had talked about a larger size and it didn't seem to m - that got much attention at all. In the presentation that staff had decide to put it at 15 and the Commission didn't discuss that either. Aanenson: I think the feeling was that it was consistent with our regular II RSF zone. CITY COUNCIL UPDATE. Aanenson: There's a couple things I'd like to talk about. One is that the" City Council discussed the Highway 5 corridor study and we did get a proposal. Based on that, what we'd like to do is establish a committee similar to what we have for the storm water management committee so we're asking for 2 people from the Planning Commission to represent the Highway corridor study. As Paul outlined in here, we'll probably be meeting in th next 30 to 45 days so we'd like 2 people from the Planning Commission to be on that committee. Batzli: Don't we already have y ve people who are involved in the Highway 5 corridor study? Ahrens: I thought so. Batzli: Who were those people? Emmings: I can't remember. Erhart: It wasn't me. I'm on the wetlands. 1 Farmakes: I'll do it again. Emmings: I was there. I really don't think right now in my life I've got II time to do any more. I'm sorry, or I would. Farmakes: I don't have time either but I'll do it again. 1 Batzli: Okay, would anyone else like to do it? We've got one. We've got Jeff. Would you guys like to do it? Conrad: No. Batzli: No? Matt? 1 1 II Planning Commission Meeting May 6, 1992 - Page 54 Ledvina: What are the times involved? ' Emmings: What would be the requirements? What are we talking about for time? ' Aanenson: We intended to have something in place in 6 months so with the storm water management we've been meeting once a month. Emmings: Okay, I'll do that. Batzli: Okay, we have our two bodies. Volunteers. ' Aanenson: I also was going to tell you that on the Timberwood, the Stone Creek subdivision. That the Council decided not to make that connection through Timberwood so it will be two. 1 Batzli: They decided not to? Ahrens: Why? Batzli: What was their rationale? ' Aanenson: They were two distinct neighborhoods and they needed to remain distinct neighborhoods. Ahrens: Aren't the suburbs great. Conrad: What did you just say? ' Batzli: They did not connect that road through Timberwood. Conrad: They didn't? 1 Ahrens: That's not logical to me. Ledvina: Did they leave two entrances onto Galpin? Aanenson: Well they recommended that we try to get two entrances and I'm trying to set the meeting now with the County Engineer to see if we can get ' two entrances off of Galpin. But if we can't, then we'll just leave it that way. Batzli: What they'd do with the park? Aanenson: The park will go on the northern portion. That will include part of the bluff and it will have a ballfield, a play area and a sliding hill. And it will be approximately 8.7 acres. Batzli: They're going to take the ravine. ' Aanenson: Yeah. It will include the bluff. They met back with the Parks Commission. I think they're really proactive and they worked. They came back with two alternates. One, showing where they wanted. A little bit less acreage. And then back up in the area that we, the Planning 1 Planning Commission Meeting II May 6, 1992 - Page 55 1 Commission kind of felt strongly about and so they worked out and it was really good that the Parks Commission. Ledvina: So there's actually two areas then? Aanenson: He came to the Parks Commission with two. Showing the two and II they discussed it and they felt that with the potential of keeping it kind of a pristine area, that it could work and it could meet their needs by putting the ballfield and the totlot in there so. I think the Parks Commission really, they had a special meeting and did a really good job. II Farmakes: So they got rid of the passive park? Aanenson: It had both. Passive elements and a sliding hill, a play area and a ballfield. So I think it's going to be nice. Emmings: I think we're kind of out of touch with the City Council. You II know I'm thinking about over on TH 101. We thought that road ought to be brought back out onto TH 101 and the City Council said no. Here, and they're kind of similar issues. Farmakes: Then there's the gateway that's going forward with removing that now. ' Erhart: I don't know if we're out of touch. I think we're recommending planning. They're making political decisions. That's the way the process 1 runs. Emmings: Yeah. Well maybe that's it. Batzli: Anything else? Aanenson: That was it. I mean the rest of them are pretty straight forward. Those were I think more. OPEN DISCUSSION. • Batzli: Does Joan want to say anything about the Target? Aanenson: I was going to say, I did bring those plans. I thought since II you guys were at the meeting, I brought 4 copies if you want to talk about what was happening at the meeting. Batzli: Just so everybody knows. I don't even know if everybody knows. There was a group discussion with some community leaders, HRA, City Council and Joan and I regarding the proposed Target site in town here. There were 3 different plans presented by, what's his name? Aanenson: Burdick? Oh, Morrish you're talking about? Batzli: Morrish, right. And basically Target presented, not an ultimatum II but it was suggested that if they didn't get their preferred alignment and they didn't want to be down in the hole and they didn't want to have to save all the trees, they were going to build it north of 78th Street there., Planning Commission Meeting May 6, 1992 - Page 56 We talked in eneral terms about what the key design elements were in the g Y g city. How did the various plans fit into the centrally located park. How did they show it off. How did they buffer things and Joan, what else did we talk about? Ahrens: Well we talked about the general concept plan for both the parcels north and south of West 78th Street. I think that most people were interested in going along with a plan that established retail and office, or was it just office north of 78th Street adjacent to Kerber Blvd.. Batzli: I think they were interested in what is called Plan C. Plan C seemed to tickle everybody and basically what you get with Plan C is you get Target kind of at a jaunty angle to provide more of an expansion into the green zone of Central Park. The buildings north would be office rather than retail and we thought that was a better use so that you didn't have the back side of a retail shopping center against Central Park. And so that was a good buffer from Central Park into this area here. On the far end of Target, on the west end they had kind of a food court kind of a concept where basically we're coming to the realization that we're going to get some of these restaurants /retail uses at that end and the issue became, how do you minimize that use? How do you make it pleasant? And it was suggested by Morrish and the other people that we could do this as long as we got screening and cooperation and they could have outdoorsy kind of things and there would be central parking so you drop off the kids and somebody goes and gets a taco. Somebody else goes and gets the pizza. To me it looks like a lot of asphalt between restaurant, retail and Target but yet if you look at any of the Targets in existence, they need the asphalt from the standpoint that they've got a lot of customers going in and out. There were comments by Councilman Wing that Target in the past did not like to work with people on their parking lots to make them attractive and that from TH 5 you were basically going to see a Knollwood kind of situation where Target was lower than the elevation of the road. There was a lot of blacktop and how in the world can we possibly make this attractive if Target won't work with us? I don't know that those concerns were adequately addressed. Ahrens: They weren't at all addressed. Farmakes: Were they putting in trees on the asphalt? Ahrens: Well, Target I guess has said that they won't go along with any of the buffering. Batzli: They want to be seen. That's their big deal. Ahrens: They want to be seen. It's this dark area right south where it shows Target is supposed to be all trees and Target said we don't want trees. We want people to see us, like people wouldn't know where Target would be located in Chanhassen. But it bothers me. You know we have II Morrish coming up with great plans. We have buffering set up around these 5 fast food restaurants along Powers Blvd.. What happens if a fast food restaurants come in and say, we don't want the trees either? We don't want ' any buffering. We want people to see us. What do we end up with then? A 1 Planning Commission Meeting II May 6, 1992 - Page 57 1 huge asphalt parking lot with 5 fast food restaurants on one side and Target on the other and no buffering? Batzli: Well, and that's the issue and that's why I initially went to the meeting assuming that we were going to discuss how we could work with Target and you know basically the developer of the site here and provide II some sort of reasonable alternative. And it sounded to me like the issue became if they're not going to ask the HRA for financial assistance, then they may just develop it according to our minimum standards and tough luc So it became, you know I didn't get a sense that there was a lot of give oil that it was kind of a, we don't do this in other communities. Why should we do it here kind of a mentality almost, although they weren't really, they had one guy kind of taking copious notes but he wasn't saying anything. I didn't really understand the power structure as far as who wa actually speaking for Target. I don't know if you have anything to add. Richard Wing: I went to a seminar a year ago last summer where the Target Vice President was there and he wound up getting booed and people left the seminar and one lady stated, she will never tolerate shopping. They're... you require us to put in one tree, unless there's a return on that tree, w� won't consider it. I'll lose my job if I put anything...we'll go to the next community. They'd rather have us. They don't care about the trees. I mean they're real cold blooded. I was stunned. Farmakes: They made concessions in Chicago I know. I don't know if we can find out the history of what they did in Chicago but they built a stone an glass building and for them, that's quite a, it'd be interesting to find out the story. Ahrens: Everybody will make concessions if they want the site bad enough. You know what I was really shocked at that meeting, there were maybe 25 people there. When you brought that comment up and when Don Ashworth said that Target said they would not put any trees in, there was no response II from anyone. They just sat there like well, okay. Well, if that's what Target wants, then I guess we don't have any choice. They threw up their hands it seems like. ' • Richard Wing: See we don't have any architectural standards or we really don't have anything as I understand it, in the ordinance that can put the kabosh to it. We really don't have any control of what they do. They can put in a block building with the lighting standard we require and the sign required, and have a Knollwood Target without any doubt. Erhart: How about our landscaping ordinance? 1 Richard Wing: Oh landscaping, sure. ' Erhart: We require a lot of trees in the parking lot with our landscaping ordinance. Emmings: Haven't we adopted, do we get any mileage out of the fact that we've identified the corridor as something that's going to have? 11 Planning Commission Meeting May 6, 1992 - Page 58 Richard Wing: ...not a moratorium but an overlay... We're going to create those standards...But I thought it was clear Joan, that were they to ' develop on the north side of the road, we... Ahrens: But I still don't understand why that's the case. I mean why ' doesn't the city have any control? Something's wrong here. Emmings: We look at site plans on every building that comes in and we say you've got to put trees here and you've got to put trees there. We don't have much control but we certainly have some don't we? Aanenson: We do have standards and our architectural standards and ' preservation of natural sites. If we feel like we don't want to approve the site because it's not meeting those needs, then we would deny it on - those basis. We do have those standards. ' Batzli: But clearly what we're talking about though is if you look at Plan C, there's a lot in there that they would not be required to do. They would not have to put the retail in a nice little curve. They could put ' little outlots. Break it into 5 outlots and have 5 little free standing fast food restaurants. They could do those kinds of things and those were kind of the threats that this is a nice plan. It's a great concept. It kind of maybe keeps an entrance into the older part of the city. I mean you've got everything with the big parking lots on one end and there were issues raised at the meeting actually of pedestrian traffic from the ' downtown and should there be pedestrian traffic or are people just going to drive their car from store to store and we can't do anything about it and there were a lot of issues like that discussed. Unfortunately, I don't know that there was a resolution of anything. There really wasn't. Richard Wing: They wanted one that night too. I mean staff was... ' Farmakes: The Target building though is still south of 78th Street correct? ' Batzli: Well, if they do not get whatever it is that they're, you know I don't quite understand where they're at in the process but apparently they are objecting to some of the things that the city would like them to do. For example, we want them to build at a certain location so that some trees are preserved. They're saying we're not going to preserve the trees. We want to be seen. You're making us dig down in a hole. They want to move the building to the west from where they are currently because that moves them upland. And we're saying well no, we want you down here. Somehow or another, the threat came in that someone spoke to someone on the phone in the morning, and if they don't get what they want, they're going to do it on the north side and we're not going to have any control over what they do. I mean it's a threat. I don't know how serious they were. Farmakes: Is there enough room to put that size building on the north side? Batzli: Well they have a plan. There was some plan that was put up then that showed it up there. 11 Ahrens: This plan shows the realignment of 78th Street too right? Planning Commission Meeting May 6, 1992 - Page 59 Batzli: Yes. Yes it does. There were issues of, should they close off 78th Street. What Morrish was presenting really with some of these plans was that he wants to avoid these little small, if you look at Plan A. You end up with a lot of these little triangle sized lots and you end up with 78th Street still going through. And then there's a bunch of issues that is it right out? Is it right in? And then they had a traffic consultant II there and he spoke at great length about how you could tie in the traffic lights and what would the traffic be like at the holiday season at Target trying to get in and out and where is the traffic going to go? Really it II seemed to me that the logical one to go with was Plan C because if you looked at the roads in front of Target and the building on the north, their main entrances would then offset one another directly and so traffic would be smoother and better served with that particular plan for that reason alone. And he had a couple stop light projections put in there and some things like that. But the problem was, I mean we talked about all these things. Everybody seemed to kind of point to Plan C but then I don't , really know, it was just kind of, nothing really. Well it wasn't like Target said, well great. We'll come in with Plan C and we'll let you see. What's happened since the meeting? ' Aanenson: It's my understanding there will be a follow up meeting. Batzli: ...if other Planning Commission members would like to attend the II meeting, you're certainly welcome to come and attend. Farmakes: Jeff doesn't have time but he'll probably go. ' Batzli: Anyway, that's what happened at that meeting. Erhart: I think what's entitled the Hanson Building, is that being looked II at all at getting removed? That little industrial building down there. I mean it's really out of place there. Right to the right of Target. Next to Market Square. That little industrial building there. , Richard Wing: ...and I don't know why. Erhart: I tell you what. If we're going to do the plan for the western II part of the downtown area, I mean you've got to take that in there and we shouldn't be putting in a plan that works around it. With all the money we buy and tear down apartment buildings and everything like that. That thing just doesn't fit there. And I see it's still on the plans here. It's ugly. It just doesn't fit. Batzli: It probably does fit in against the back side of Market Square. I don't know what fits in against the back side of Market Square. Nothing. Conrad: Only the back side of something else. 1 Batzli: The back side of Target. Conrad: That will be good planning because the back side of Market Square is not... Erhart: Why don't we move the trees over here? ' II Planning Commission Meeting May 6, 1992 - Page 60 1 Conrad: Dick, is there a pressure to help Target into the community? Is ' there a feeling that boy, we need that tax base that they'd bring in? Richard Wing: Well I was waiting for somebody to bring that up because I have information on tax base. How many... The downtown businesses, they claim it's going to triple their traffic and really improve and help downtown Chanhassen business grow. The developers...were very pro. Then you've got someone like me that, you know the last thing in the world... ' that's the other extreme. I think if it's attractive. I think there's a philosophical feeling of what do we want our city to really, and is it something that draws 15 miles around and brings in all this traffic. I mean we're arguing stop signs right now. This is just devastating...On the other hand, it's certainly going to stimulate business... I think it's personal opinion. I think your... I'm willing to say no. I don't want it. It doesn't matter what it looks like. It's not what I want in my ' community but I don't think I necessarily represent the majority. Ahrens: Well I said that also and there was dead silence in the room ' when I said that. Batzli: Well, you two were really the only two that were bringing up what I would say were negative things. The other people had like little problems but they didn't. Erhart: What vision do you have for that area if that's not there? ' Ahrens: I just said we should have some kind of vision and we don't have any. And is this, I wasn't saying Target absolutely should not go there but is this something we really want here? I mean let's think about this before we jump into it. Erhart: I'm not excited about it but then we have to have an alternative vision for that area and then where do we want our Targets? Ahrens: I absolutely believe we should have a vision. But when we go to a meeting and we're told that Target is going to build a store there and they're going to build it to their own specifications and we have nothing to say about it and everybody sits there, it's a little disheartening to sit in a process like that. Batzli: I was too busy eating my pizza to say anything. I apologize. ' Erhart: The HRA is essentially the city's money machine and I think that's going to be the nature of that meeting isn't it? The HRA generally looks at things from kind of a dollars cents, budgetary point of view. ' Ahrens: But there were a lot more people there than just the HRA. Batzli: Oh yeah. There was, I didn't know a lot of the people that were II there but the room, it was over in the fire station and it was packed. I mean there were a lot of people there. Were they downtown people? I mean I didn't know a lot of them. 1 Planning Commission Meeting II May 6, 1992 - Page 61 Richard Wing: ...downtown people. Bloomberg and their staff were represented. ' Ahrens: Actually Bill Morrish came up to me afterwards and he said, you know that was really a good point. He said people should be thinking about whether or not they want things like this in their downtown. Not ' necessarily automatically assuming they have to have it. Erhart: Well, I heard the question, whatever. The way we got West 78th , Street single lane. You put that in there, I believe you have to rebuild the whole entire West 78th Street to go to 4 lanes and it's still going to be a mess. Batzli: Well the traffic consultant theorized that people aren't going to go through the downtown to get there. Most of the traffic trips are going to be coming from TH 5. I don't know why or how he came to that conclusion. Ahrens: And nobody brought up what's going to happen to Powers Blvd.. You, know the City goes to all this expense to put bike lanes and everything else alongside Powers Blvd.. Nobody's going to use those. Traffic is going to be terrible. Batzli: They were so impressed by this guy's chart. He had this chart where he had two lines and then he started drawing things about timing signals from red to green and everybody was so kind of doing this number orl _ him. Trying to figure out what they were, they didn't even ask him where the heck he got these numbers from. It was stunning. Farmakes: The present majority of the population lives north of TH 5. Batzli: But I don't believe that they think that their only draw is going to be from Chanhassen because of the, you know you look at where the 1 Targets are already, and they must have some idea where they're going to get the people from. But you wouldn't think it'd be coming from south because they'd already go to Eden Prairie. There's one just. ' Ahrens: The only other one is by Ridgedale. Batzli: Well there's Southdale. There's Ridgedale. There's Knollwood. 1 So you've got these kind of circling us. Apparently we're drawing from down in Chaska maybe and coming in on TH 5. I don't know where they think they're getting the draw from. 1 Conrad: ...thinking. I worked for Target for 10 years. We did a lot of studies. They're going to pull from the TH 101 area north. There's just no doubt. Batzli: There will be a cut off eventually where they go north to Ridgedale from there. Conrad: Oh absolutely but think of where that line is. So really you've just got a huge population base. Right now there's the K -Mart alternative II for those people or you drive 30 minutes the other way to Ridgedale. It 1 II Planning Commission Meeting May 6, 1992 - Page 62 1 will take a terrific traffic into 78th Street. You know, just to comment. ' I don't think we need Target. I think we can be, I just have no need to have it in our downtown. But if it works, it's fine. But I sure would play it hard as we can possibly play with them and if they don't meet our rules, say good -bye to them. But they certainly can do things without our. Emmings: I take it you're not planning to work for Target again. Conrad: Never again. Batzli: See my vision of downtown will never come true because it's been explained to me by the downtown people that they don't put up those kinds of buildings like they put up in Wayzata and Excelsior anymore. You know against the street. It's not economical for them to do that. But what my point is that I would like to see downtown be pedestrian. That's not happening. The HRA and whoever else has ideas that we're going to be going from place to place by car and when we do put something against the street, we have all sorts of questions about why we did it. Professional building and that type of thing. So it seems to be we're getting an area that's similar in my mind to around Southdale on Frace. Where you've got shopping centers to the left, shopping centers to the right. You're going through parking lots to the buildings. It's not a walking friendly kind of environment which is what I kind of hoped for our downtown so as you drove through you felt like you were really in the downtown and not a strip shopping mall of different, so I say. Well heck, we're not getting what I envisioned anyway. Target's fine. It's just another big parking lot and a big retail center. • 11 Erhart: I don't know. It's not my vision. My vision was that we would create the super store area out on TH 5 and TH 41. Try to attract all the, we're going to have Targets and we're going to have K -Marts and we're going to have Fleet Farms. Try to attract them out in that area and do whatever we can to make it favorable for them to go in that area. And you try to keep downtown to more unusual stores. I mean like a Burger Brothers. Now granted they've got one on TH 101 and TH 7 but the reason they're coming here is we've got no other place for them and as Ladd is saying, they're going to come here and wherever they're going to go, they're going to attract people from all over the place. 5o let's, is it possible to have a vision where there's another spot for them? Where we can put these super stores and to me 4 and 5, the road system is out there to support it. I just think it's going to be a mess here. 11 Batzli: I don't think they would want to move there from the standpoint that it's several miles further west and it's not sewered yet. I think they're looking. Erhart: It's not sewered because we decided that it's not sewered. Batzli: Well, it would be very expensive. I mean if they really wanted to go out there bad enough and they paid for the sewer but they're not going to do that. They're going to build, I think on the site that they get the return for their buck on and that's here because it's right away and they don't have to pay for the improvements basically. They don't have to pay for as much improvements. Planning Commission Meeting May 6, 1992 - Page 63 1 Erhart: Well it's a question of do we want to encourage or discourage it. That's what this discussions about. Batzli: No, I understand that. Erhart: And without a vision, we aren't going to have any influence. 1 Batzli: But I'm just saying, I don't know that this doesn't fit into the reality of what our downtown is becoming. Now whether that fits what our original vision was. A sleepy little country lane with a boulevard down the middle with shops you can walk from shop to shop at, that's kind of what I pictured. Farmakes: But it still has to be developed yet. I mean half of it's empt space. Erhart: You know there's Frank's and there's stores that are more I don't II know, human nature. More humane stores that would...fill that area up with. ' Farmakes: There are parking lots in California where they require them to have 40% ground cover in parking lots like these types of stores. And we just, you saw those aerial shots of Chanhassen. The open expanses of parking lots and it's. Erhart: We can control things like that. Farmakes: You can still park cars there but we can make it, at least make it look better. Erhart: Right. We can control to the maximum building. We could specify a maximum building size. If you want a big building, you put it on. Ahrens: ...vision with the City Council and none of that stuff... ' Erhart: I agree but I think we can control it but we've got to have a vision. Let's establish with the City Council a vision and you can't exclude Targets from the city. It's just like pornography. You've got make a place for it. Ahrens: Target's just like pornography. Erhart: No, I'm not trying to compare but from a standpoint of zoning and 11 planning, you have to have a place for it and if you don't make a place, then they're going to come in and say, I'm going to put it where I want it. Batzli: Well, just to be a realist or cynical or pessimist here for a minute. I think they're moving faster track than we can gauge what the City Council would like us to do and pass an ordinance to try and change something at this point. 1 Farmakes: Isn't south of 78th now, can't the City control what goes in there? Isn't that a PUD? 1 I/ Planning Commission Meeting • May 6, 1992 - Page 64 Batzli: No, it's central business district. CBD isn't it? Aanenson: Well, general business I believe. Farmakes: So does the City have any jurisdiction there if the building 11 isn't up to? Aanenson: Well yeah, we have the general site plan standards which I told you have to maintain the, if we say it should be consistent with what's there. The tree sort of thing. We can deny it based on that but then they'd have to meet the standards of that zone. Conrad: That zone has the least standards of anything downtown. Farmakes: If we look at standards, can you look at them just defined that area alone? Commercial standards solely for the business district. We've hacked and talked about it, brought it up as a subject about building standards. The problem has been how do you do it. Morrish says you can do it but the problem is often it's so ambiguous as to what is a quality building that it's difficult to put in an ordinance. I for one don't have a chart in front of me telling us how to do it. It'd be great if people say well I'd like a glass and stone building. Well how do you put that in an ordinance? And if you do it, how do you evenly apply it? You've got a Target on one hand, you've got a Hardee's on the other. Aanenson: I think that discussion kind of came up when we looked at the bank. We looked at, are we all going to go with this brown color, remember that discussion came up and we were trying to come up with some sort of coloring for this area. And we do as far as what we have as standards as far as site plans. We try to say this is the direction that we're going. These are the materials that we're using and someone brought up, you it came up, is this really what we want for this area? Everything to be brown ' and that rustic frontier look or which direction are we going? So that's part of the vision I think we need to be looking at as far as the whole TH 5 corridor. Batzli: But we're referring to the Highway 5 corridor study here. I mean they're going to start meeting when? Aanenson: Paul says he'd like 30 days. Ahrens: It will all be developed by then. Batzli: I mean they're going to submit plans in 30 days aren't they? Aanenson: I don't think they are. I really don't think they are... Farmakes: Is there a way to bring that within the Highway 5 corridor study? t Aanenson: I think it's from one end of the city to the other. Farmakes: To give it some muscle if we don'.t get what we want, say fine. Go somewhere else. 1 Planning Commission Meeting II May 6, 1992 - Page 65 i Batzli: Well, it's the only thing we can do at this point. I mean is proceed on that because otherwise we won't have done anything. Richard Wing: You know, if I could make a suggestion. I've only been on the Council for a year but I'm finding from experience that this Commission is an active commission. Myself...resident, and everybody out there...stop" going to these meetings and go to HRA. They've got the money for development, buildings. This whole thing is HRA. It's got nothing to do with you, I or the Council. It's the HRA development, building. Look at the nightmare they got with the bowling alley. Why isn't that a priority? Why don't we get that cleaned up? West 78th Street. That's all HRA money and HRA rulings. I think we've got to be attending those meetings... Batzli: That makes us feel really useful. ...Matt is. Well just out of idle curiousity, are they at least sending you the materials for the HRA? Ledvina: No. Batzli: Will you check on that again? Aanenson: Yes I will. Batzli: Because I think I got the last packet again. I thought they had II sent out two packets. Aanenson: We should be rotating the City Council correct? ' Batzli: Correct. Aanenson: And then the HRA should always be Matt. ' Batzli: Right. Farmakes: I'll be happy to bring it up at the meeting that we go to on that" corridor thing. I think it will be a good place to rear up the ugly head of building standards. Conrad: Should we be considering anything in light of big stores moving into Chanhassen? Ahrens: Well we want them. Batzli: Give me a for instance. 1 Batzli: The thing that I find real offensive with Target coming in is the parking lot. And I really don't have a problem if they move into downtown Chan. That wasn't what I thought would happen down there but on the other hand, the general business district was the one that I was worried, always worried about because it was just sort of the slop area. It was the area where it was going to be strip commercial. You put a building, parking lot, building, parking lot. It's going to be ugly from the very beginning. And I never had a way to get around that. Well now here comes Target and they'll limit, it will be building and massive parking lot. So I guess, II but I've never considered what a big parking lot, how we can handle such a 1 II Planning Commission Meeting May 6, 1992 - Page 66 big parking lot in Chan. And maybe our current ordinance handles it in terms of landscaping but I'm not sure. Richard, did you go to the Arboretum workshop where they were talking about parking lots? Richard Wing: The last two years I've gone. ' Farmakes: That's the one referring to 40% coverage. Conrad: Well I even heard a bigger number than that. I thought it was 50. Farmakes: I understood it to be 40. Richard Wing: ...that requires 50% shaded and all lots to be... It's a nightmare. The trees come up and they cut them down and as soon as the trees start blocking out signs, they either cut them down or... Farmakes: Yeah, I think the real issue on some of these big places is they're sophisticated use of sight line for monument signs. They get real ' sophisticated... Conrad: Is Target a stand alone unit or are they bringing other units with them? Is it like Knollwood with Target at one end? Aanenson: It's just Target. II Conrad: It's just the Target store? Ahrens: That's what I understand. ' Conrad: And how many square feet? Is it 70,000? 105,000? Batzli: It's not their big store. Conrad: Is it a smaller format store for smaller towns? Ahrens: It's not Greatland but it's the regular. Batzli: Well I don't know. I was under the impression it was kind of the Knollwood version rather than apparently Ridgedale's like bigger than Eden 11 Prairie. They've got like several kind of. Conrad: Yeah they've got three...at least. I'm just curious what they're doing. Batzli: I don't think they told us. Conrad: I guess it would be interesting to revisit at some of the issues that might make it fit in or else I guess we could passively waiting. Actually what I'd like to do is have the Planning staff review what we might be able to do by next meeting. So at least we can say we take a look at it and we're comfortable. Ahrens: We have to know what our options are. r Planning Commission Meeting II May 6, 1992 - Page 67 1 Batzli: I think this has got to be like one of the highest priorities along with the Highway 5 corridor study. Conrad: And I guess I don't want it getting out that we're sort of anti. We're just taking a look at what does a large store mean in the downtown business area, or in Chanhassen. I absolutely don't agree. No, I do agree that signage is critical. When you have 100,000 square foot Target store and a similar parking lot. Bigger parking lot, sight line no longer is. Access is the big deal and the store, I don't believe has to be visible from 14 different points. It's not like boy, I sure didn't see that. It's1 not. And if anybody knows what has happened in Knollwood with Target. They've just had a lot of problems with trying to make Target look better in the Knollwood area and the city cannot solve the problem. It's an almost insolveable problem. Farmakes: There's not a lot of sites where something like this could go II out here. Really as it stands right now. There just isn't. You mentioned TH 41 and TH 5. There's one here but if you look around, there's not going to be a lot of areas where in the foreseeable future be able to go. Batzli: Yeah, if they waited for 212 to be built, there might be some nice intersections. Farmakes: Well even north of here. Basically it's a bedroom community all the way down to TH 101. If you go north and to the east. Batzli: Yeah, they'd have to go south. They'd have to wait. Farmakes: Yeah. And Walmart's coming in over here. Fleet Farm already owns property here and...try to do is pin each other in. They try to put the store to stop the other one. Conrad: Well they don't want to be locked out. They'll split the market 1 or whatever. They just don't want to be left out. That's what's happening. Ahrens: I would rather get a big grocery store. 1 Batzli: Okay. Well, so. Staff is adequately directed? Aanenson: Yeah, I got your concerns. High priority and we want to look at the issues, like architectural standards and landscaping... Batzli: Anything else? To add to her list of things that come to mind so 1 you don't say well gee, why didn't you look at this next week. Erhart: No, I think if you just go through the Minutes and Kathy's heard II us and go through it and come back with what things we can do. Aanenson: And where it is in the process and what they're trying to bring II us. Batzli: Ongoing items. Adminstrative approvals. Open discussion we probably just had. Let's hold off on the discussion paper on RSF until 1 II Planning Commission Meeting May 6, 1992 - Page 68 Paul is here because it's not clear at all what his position is. 1 Aanenson: You felt that way too. Erhart: I've got one issue on these ongoing discussions. I missed the meeting with, what was it Rocks? Aanenson: Stone Creek. ' Erhart: Stone Creek development and I was surprised, I looked at that afterwards to find out that we placed a conservation easement on trees. 1 For that purpose we changed the front. In order to provide back yards now, we changed the front yard setback to 20 feet instead of the normal 30. Does anybody remember that? Batzli: Yes. Erhart: Okay. You know this is the second time now where we've applied this, is it tree easement or? Aanenson: Conservation easement. Erhart: Conservation easement related to trees and I haven't even seen what the easement statement is. And I'm concerned that we've started something here now without really thinking about what we're doing. I'm asking that the Commission get that on an agenda and let's make sure that we're going on a path here that we've kind of planned out because we're starting to do some very, what I consider, I'm not sure that I'm comfortable changing our setbacks because of some tree easements and then I read some more things tonight about trees. There's a couple ways to look at trees. One of them is, you can look at them, trees, we're starting to look at trees like wetlands is my concern. Is that wetlands is something permanent and you know, and then eventually all of a sudden trees are going to be removed from the buildable area of the lot which is being eluded to in some of these other documents. I think we need to really think about 11 what we're starting here because to me I look at tree as a renewable thing and also we haven't had a history of individual lot owners going in and abusing our trees. Now we're writing ordinances and I was under the impression on these conservation easements, we were trying to protect the city from the lot owners and after talking to Paul. Well in his mind, no. It was really the developer and it's not clear and I think we need to understand what direction we're setting here because we're starting to set some precedent. There's some things to think about and I ask that we discuss it. I'm not sure that this is a good idea. Then the question is, if we are going to do it, what can the lot owner, in my opinion is, when a ' guy buys his lot, I mean that ought to be his lot and unless he proves otherwise, we ought to leave it that way. Batzli: Okay. That will go on an agenda about, well. What's our agenda look like next time? Aanenson: Well we'll have a couple of beachlots on it. Batzli: Do we know? 1 Planning Commission Meeting May 6, 1992 - Page 69 Aanenson: Yeah. The beachlots and the rou homes issue. The ordinance g p nce for the group homes. Batzli: Are we going to have 2 beachlots again? Aanenson: Yeah. Is that too many? 1 Batzli: Because that takes up a lot of the meeting each time. Aanenson: Would you rather go with one? . I didn't think they'd go quite II that long. Emmings: Well what are they? Aanenson: We're doing Lotus Lake, Frontier Trail and Lotus Lake Estates. Let me see, hold on. I've got it written down. 1 Batzli: I thought at least one of the two tonight was going to be fairly easy. I figured it was going to be like a half hour -20 minute kind of deal. Aanenson: I wrote down some of your comments that you brought up too and we'll try to make that more clear in the next staff report. 1 Ahrens: Can we have a decision from Roger on how to treat those covenants? Aanenson: He has spoken before and when we came with the Trolls Glen, that, we could ignore the covenants. Once we adopt the ordinance, if we want to ignore, they can present it but what they had in place was what we're goin to consider grandfathered. Because we...got the complaint in 1991, that's the direction we were going to go but we decided to hold off. Emmings: I think legally you can. The question is whether you want to look at the evidence of what they had at the time. Whether the actual boat" was there or not. Aanenson: And that's exactly why we put them through this process. We thought it'd be more equitable. I did notice already those two so we'll have to have the two on next time but if you'd rather just take one from now on. 1 Emmings: Well we've already got one to carry over right? Aanenson: Well I was going to give them a little bit of time. I think 1 they need more than 2 weeks to try and meet and get their thing put together. Batzli: How many of these total do we have? Aanenson: 12. Batzli: 12? Just 12 total? Aanenson: Yes. 1 11 II Planning Commission Meeting May 6, 1992 - Page 70 1 Batzli: Once a month. Just one. Two was too many. I started drifting ' off during the second one. Aanenson: Okay. Well that was the other question I was going to raise. Do you want affidavits before? I mean,does that help? Batzli: No. In retrospect, affidavits won't do any good because the guy signed one and.he didn't even know what he signed. Aanenson: Denied it. Yeah, that's what I was wondering. ' Ahrens: He said it was wrong. Batzli: Yeah, but it was wrong for every year though. Every single year. What would help is to have a map of the beachlot. Emmings: And a site plan. What's on there now. What was on there then and what's on there now. Aanenson: Yeah. That's going to be a rough drawing but we can do that. Batzli: The second applicant seemed to have a point on this picnic table thing. The issue of, if we're approving picnic tables in those things, it looks to them like they've been hoodwinked somehow. That they didn't know that they could even ask for it. Suddenly we're going to approve it or not ' approve it. Emmings: I don't think we should have that on there. 1 Aanenson: I guess the only thing we're trying to do is document so if somebody does call and complain that there's people down there picnicing and they're loud and can they have that down there? Yeah, they had it back ' in 1981. Batzli: But see if we're approving it and they don't even have the ' opportunity to tell us that they want one. See because it doesn't seem to me that on the form, it doesn't ask. It asks what they had in 1981 but yet it's something they can ask for now and that's not apparent to them and that's what they're complaining about. Aanenson: Would you like me to make that more clear before we put it on the agenda? Call them up and make sure I explain that to them. Would that be better or just not put it there at all? Batzli: Well yeah but I would also, I don't know. I don't even really want to approve a picnic table or not I guess actually. Do you guys want to approve picnic tables. Rest of Commission: No. Ahrens: A barbeque grill? Batzli: Unless it's permanent, I don't want to talk about it. Planning Commission Meeting 1 May 6, 1992 - Page 71 Farmakes: I have one question since you brought that up again. Why is there no communication with the city and these beach associations? I don't know how many of them there are but why isn't there any communication from I our level to them as to what the real situation of riparian rights are because they just demonstrate that they have no idea what they are. Including this $13,000.00 lawsuit. He threw it out of court because it I wasn't in his jurisdiction. It was ludicrous to spend that kind of money and not even understand what the situation is. Aanenson: They've been in numerous times and they've locked onto what they feel they have a vested right because of their covenants and that's the only thing. Emmings: We're not dealing with laws and regulations here. We're dealing 1 with people's emotions and boats. Farmakes: I can understand that. I can understand that to the extent and II even if you're going to cut a deal and the difference, because the City does bear some responsibility in the fact that you didn't enforce the law for a decade. We didn't. Emmings: No. No. Now wait a minute. You've got to stop saying we didn't enforce the law because there was no law. The only law that applied was, II you can't expand the grandfathered use. That's the only thing that wasn't. Farmakes: That's what I'm saying. They expanded it. It's right here. Emmings: Okay, if that's what you mean. Farmakes: You're going to the 4 boats. They expanded... ' Emmings: They didn't expand these to them Jeff because they have always had that in mind that that's what they were doing there so that was, to I them that wasn't an expansion. And I'm talking about how they felt about it. I'm not talking about. Farmakes: What I'm saying, if you look at simplicity, for somebody who doesn't even know about the law. It's a fraud. They were sold a bill of goods they thought they had. Emmings: But a developer. 1 Farmakes: Correct. Emmings: No question. 11 Farmakes: And just putting a hand up here for some communication for these' people. They should, they're part of the process of getting that information down to the homeowners. And it seems to me if we're going to have these associations and we're going to communicate with them, that's all important part. If you're going to have a lake association, that they should be able to go to them for reliable information on these issues. II Planning Commission Meeting May 6, 1992 - Page 72 Emmings: I think their concerns are more like who's going to put in the dock this year. 1 Farmakes: I don't want to deal with the subject because they're going to have go among themselves and they're going to have to say, well we've got 4 boats out there now. Who's 2 boats are we going to have? ' Batzli: Let's ask one quick hypothetical question and that is, okay we had two semi-difficult • applicants come in today. Clearly I think we do have to ' look at the use and the baseline of 1981. Is there something else or some preferred format that now that we've had to suffer through two of these things, is there some way that, does anybody want to suggest a way to ' handle these more, either efficiently or that we can at least discuss because what I see right now is we've got 3 competing viewpoints as to how we should even look at these anyway. Kind of a is it reasonable. What did the city tell them. Maybe believe whatever they tell me with kind of like ' fine. See no evil, hear no evil. Or more of a this is what they've got in 1981 according to our survey. That's what they're going to get. I mean is there a preferred way that we want to look at this or are we just going to ' kind of keep on going through it. Conrad: I thought we did a good job tonight. I really did. And yeah, you might have heard a biased perspective from my part because it sounds like, ' well the 1981 was it. I will change from 1981 if I see the right situation. It may not be clear when I communicate but yeah. 1 - Erhart: We were talking. We would have gone 3. Conrad: We could have done a lot of stuff but again. 1 Batzli: I'm just asking. But is there a way to do this more efficiently because I'm open to suggestions because these are very heart felt issues and the people have, and they want to get up and talk and they want to, the one thing I would ask all of you is to not get into arguments with the people. Speak of them in third persons. They are doing that and address us because it just insites them. 1 Farmakes: I understand. There was information missing out of here and we didn't address that. Emmings: We've got one coming in, and I don't know exactly what the numbers are. Minnewashta Heights must have, I think they have like 6 or 7 boats back in 1981 and they've got like 17 now and I guarantee you that's going to be. You think these were hard. Farmakes: The time that the city spent on this is very kind of ludicrous. ' If you add up the amount of shoreline, you're looking at what? 230 feet. Basically a decent lot size. One decent lot size and what 20 boats? Ahrens: Could you limit the amount of time of discussion maybe for each side? A few minutes for each side or something. Emmings: No. 1 1 Planning Commission Meeting I/ May 6, 1992 - Page 73 Batzli: I don't think I can realistically. I'm going to try and impose Y g g Y ose P the 5 minute limit on every individual but they always want to get up for rebuttal and then we've got the sales guy who, he was smooth. He stayed u and one more thing. One more thing and that's fine. He's presentin points but. Emmings: They deserve their opportunity to. 1 Conrad: We're potentially taking a lot away. Farmakes: Particularly as you go out west, things got a little loose. Batzli: Well what I do think we should concentrate on though is what have II they actually asked for in their permit so concentrate on the little lines that staff gives us. What was the use and is it an intrusion on the neighbors and at least concentrate on those points and other things you II might think are relevant but let's try to get a concensus as we go along the line of what are we going to make a motion for so we can get a better idea of what everybody's going to want to do. And with that, is there a 1 motion to adjourn. Emmings moved, Conrad seconded to adjourn the meeting. All voted in favor and the motion carried. The meeting was adjourned at 11:20 p.m.. Submitted by Paul Krauss Planning Director Prepared by Nann Opheim 1 1 1 1 1 1 1 1 1