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PC Minutes 2018 01 02Chanhassen Planning Commission – January 2, 2018 5. Tree protection fencing must be properly installed at the edge of the grading limits across the entire south side. This must be done prior to any construction activities and remain installed until all construction is completed. Any trees lost to construction activities beyond those indicated in the tree removal plan shall be replaced. 6. No equipment may be stored within the tree protection area. 7. Appropriate tree protection measures must be taken to protect the rear yard ash from Emerald Ash Borer. 8. The 162 square foot rear patio area is understood to be the property’s water oriented structure. 9. Lot coverage may not exceed 3,319 square feet. 10. The proposed rear patio and driveway areas must be constructed using pervious paver systems. 11. A permanent 20 foot native vegetated buffer must be installed along the shoreline using species native to the ecotype with permanent buffer monuments. The buffer may work around the path and stairs. The buffer must be designed and installed by an experienced professional in native shoreline restoration. Design plan must be approved by the Water Resource Coordinator. 12. The property owner must work with Minnehaha Creek Watershed District to identify and implement any shoreline restoration projects that would improve ecosystem health and function. Replace riprap with bioengineering solutions is one example. All voted in favor and the motion carried unanimously with a vote of 5 to 0. PUBLIC HEARING: 7052 MINNEWASHTA PARKWAY – VARIANCES INCLUDING FRONT YARD SETBACK, WETLAND BUFFER SETBACK AND WETLAND BUFFER WIDTH. Aller: Again we’ll be sitting as a Board of Appeals and Adjustments concerning variances. Generous: Good evening Chairman Aller, commissioners. Aller: Can everybody hear? Let’s wait 30 seconds while it clears out. Thank you. Generous: Yes tonight we have a public hearing for Planning Case 2017-19 for 7052 Minnewashta Parkway. It’s a variance request. This property is located on the southwest corner of Minnewashta Parkway and Kings Road. The applicant is Nathan Kirt and the property owner 14 Chanhassen Planning Commission – January 2, 2018 is Daryl Kirt, his father. The variance request is for the wetland setbacks. Initially we thought that we may look at a front yard setback variance but we believe that we’ve come up with an alternative that would not force him any closer to the road and provides an acceptable building envelope. Additionally the property, or the applicant did not want to go any closer to the road so. Again this property is on the southwest corner of Minnewashta Parkway and Kings Road. The property is zoned single family residential, RSF. It’s a total area of 6.27 acres, however the majority of that is in wetland and some of that is in actually in shore, and lakeshore area. Lake St. Joe. Setbacks are 30 feet from both Minnewashta Parkway and Kinds Road but the 10 foot setback on the west side of the property. However there’s a wetland that wraps around the building envelope on this site. It’s an outstanding, classified as an outstanding wetland on the back part of this property adjacent to Lake St. Joe which requires a total 100 foot building setback from that. 50 feet of that is buffer area and 50 feet is a wetland buffer setback. Maximum hard cover is 25 percent. When we pulled up our GIS system we looked at the site and it showed us that there’s a wetland on the property. It was never delineated for city purposes. However this is a little warning for the city that we look at the property to see that, make sure that it complies with all our ordinance requirements. The property is guided for residential low density use and that’s typically that means a single family detached housing with a 2 car garage. It’s guided for residential low density use so it was anticipated that this would develop for a single family home. I should note that we began working on this project at the end of 2016 and so we’ve been working with the property owner and the applicant to come up with all the information we needed so we can get an informed decision and have all the information before you. When we originally sent this out for jurisdictional review, both the DNR and the watershed district, Minnehaha Creek were concerned that the submitted survey was inaccurate. They believed that the ordinary high water elevation for Lake St. Joe was actually closer to the property and closer to that wetland edge so the applicant had his surveyor meet out with a representative from DNR and they came up and agreed to this is the closest that the OHW of the lake came to the home. So it’s over 240 feet so it exceeded the minimum requirement for the shoreland setback so there’s no variances involved in that. The OHW for Lake St. Joe is 945.2 so. The applicant’s proposal was to construct a 28 by 90 foot house on the property, maintain a 20 foot wetland buffer and then there was an 18.2 foot wetland setback from, for the closest from the house to the edge of the wetland. We agreed with the property owner that, I should go back. In 1989 the City did approve a 50 foot wetland setback variance for this property and the applicant began construction on the house on the site and then abandoned that and so the original variance has been voided and it’s no longer in effect. We do believe that there is a necessity for a variance to permit the development of this site. We’ve calculated the building envelope of the property with the required setback and it creates a 30 by 10 foot piece of buildable area right adjacent to the front yard setback. That, as we all know would not even accommodate a driveway in our circumstances. So we believe wrapping some type of variance was necessary. And then as part of our review and our reason for changing from the 1989 variance approval to now, I’ll have Vanessa explain our reasoning on that. Strong: Thank you. So it is always a challenge to balance the needs of an applicant with the needs of the community and also the protection and preservation of our local water resources. 15 Chanhassen Planning Commission – January 2, 2018 As Bob mentioned we spent a good 4 months, since I’ve been here, really trying to work with the applicant to come up with something that is achievable and that balance and it has been hard. They had to walk through the Wetland Conservation Act process. The Board of Water and Soil Resources. The Minnehaha Creek watershed district. The DNR have all had eyes turned towards this and raised several questions on this property. So it’s important to understand that. Our recommendation tries to consider very, very many factors here. Primarily though I’ll break those into 4 categories. First of all is the site history. The current proposed buffer and setback from staff takes into consideration the historic use of the property. The applicant provided a lot of really great historical information on the site. We’ve looked at how the neighboring area has also developed and what current rules and regulations are for this area. That’s what we took all that into consideration. That’s one factor. Other agencies. So again like I said, many other agencies have a lot of concerns about this. Not only is it important that our city variances meet the requirements of our own variance necessities but also those of other regulatory agencies. So both the DNR and Minnehaha Creek watershed district also have variance requirements and we need to meet those and be sensitive to those as well. So the third factor here is wetland type, health and function. This is considered a preserve wetland. This is our highest quality and category of wetland. The vegetated uplands, the buffer areas between wetlands and the, the vegetated uplands between the wetland edge and the upland area is one of our most diverse eco habitat. That’s considered like our richest zones for aquatic organisms and semi-aquatic organisms. In Chanhassen we take these under the highest protection. These types of wetlands so this is not a standard wetland. This is our preserve wetlands. These are the ones that are paramount for protecting both the quality of Lake St. Joe but also Lake Minnewashta and all the surrounding sub-watersheds so this is something we take very seriously in protecting this specific wetland. That being said, the width of wetland buffers does matter. Wetland buffers less than 50 feet do have significantly reduced function. That’s why the minimum wetland buffer here is 50 feet so any variance that we’re granting, and we acknowledge we need to grant something, is going to reduce the effectiveness of that buffer so we need to try to create the widest buffer possible but still allow reasonable use in order to protect both the lake and that wetland so. The last piece is of course again community input. So again you know this is a parcel that has an intended use but there are also neighboring parcels and neighboring residents that have concerns about the quality of Lake St. Joe and the quality of Lake Minnewashta because they are hydrologically connected. And Chanhassen residents overall rank wetlands very high in their importance for this community. A lot of residents live here because of that. Our public outreach survey, I don’t know if you guys paid attention to that but they ranked wetlands as very high. It’s in our top 5 of important values for the citizens of Chanhassen so protecting those is important for the entire community. So we had to take all four of those and balance those to come up with our recommendation and that’s where we came up with the 40 foot buffer and 30 foot setback. Generous: And back to me. So we believe our amended variance provides the applicant with reasonable opportunity to develop this property. It doesn’t specifically meet his submitted housing plan but it covers a lot of it and provides an opportunity for him to build reasonably in this area. In determining this we also looked at housing within the area. We looked at all the 16 Chanhassen Planning Commission – January 2, 2018 houses on Kings Road and those on Country Oaks Boulevard and the average dimension of those homes were 56.2 feet in depth and 66.3 feet wide. That would all easily fit within this building envelope that we show on this. The 40 foot buffer does, as Vanessa stated, provide an environmental safety for the water quality and the wetland and the lake and then the 20 foot setback also allows a reasonable building envelope but we’re also saying that they can have within the first 10 feet of that 20 feet they could have their accessory structure so if they wanted a patio or a deck they would be able to create an outdoor living space in conjunction with the building of the structure on site. So staff is, does believe that this is a reasonable alternative and it gives them a reasonable use of the property. It accommodates most, as a matter of fact this point is the same as what their original plan concept was, to put the house across this area. It’s just to the west and south where they had encroached into the wetland that we were looking at. So staff is recommending approval of amended 10 foot wetland buffer variance so a 40 foot wetland buffer and a 30 foot wetland buffer setback variance so a 20 foot setback so they are allowed to construct the single family home on the site and a garage. However also preserving the natural features on the property subject to the conditions of the report which basically say provide us with the grading, drainage, erosion control plan as part of your building permit application and if you impact any of the wetlands buffer that it will be revegetated to acceptable standards and we recommend adoption of the Findings of Fact and Decision. With that I’d be happy to answer any questions. Aller: Thank you. I have two questions. One, first for Ms. Strong. The conjunction of the wetland requirements. The buffer and the setback requirement. Does it give us a de facto 50 foot setback if they’re not using that additional 10 because of the, I should say buffer because we’re using the setback partially it’s co-existing non-buildable use? Strong: That’s a very good question. These are not, these are not exchangeable requirements. A setback from a buffer and a buffer itself are two different things. We actually redesigned a diagram, it’s actually in your packet here. This one here, to kind of explain the difference between the buffer and the setback. The buffer itself is what’s protecting the wetland. The setback is something that municipalities use or regulatory agencies use for development. It allows somebody to use the space around a structure. But it is the buffer itself so no, they’re not de facto the same. It is a 40 foot versus a 50 foot buffer. Aller: Okay. And then have we looked at the impact of potentially what would happen if we moved the physical housing unit away from the buffer and created smaller side and corner setbacks and whether or not that would create perhaps a sight line hazard or what that impact might be? Generous: Not specifically a sight line. We were never concerned with that because the corner of the property has a 50 by 50 easement area that they can’t build in and so they’re, our sight line is 30 feet back so they’re way out of that. That wasn’t an issue. It’s can he fit a house in this. Yes, we believe so. We’ve seen lots of building plans come through that would fit within that envelope and provide exterior spacing. You know he could look at if he doesn’t want to do a 4 17 Chanhassen Planning Commission – January 2, 2018 car wide garage, what if he did a 3 car wide would probably fit in there, or 2 car with a double deep garage would fit within that envelope. Aller: Alright. But my, and my question goes to the ability to increase the buffer and put a physical structure on that’s sufficient for common housing. Generous: Yes if you went farther north you could theoretically do that. Give them a 10 foot variance for the front yard setback and then add that to the rear. Again that area gets a little wider the farther north you get so. Aller: Right. Generous: However it also goes against what their preference is to stay away from Kings Road as much as possible. They want it to be even farther back and we’re saying well maybe you could move up to the building setback line. Aller: Okay. Any additional questions at this point? Hearing none if the applicant would like to come forward and make a presentation that would be great. If you could state your name and address and representational capacity if any. Daryl Kirt: My name is Daryl Kirt and I’ve owned the land for about 30 years. In fact we were at this very same meeting 30 years ago when our first house was approved and. Aller: Well I wasn’t there so welcome. Daryl Kirt: We’ve got 30 years of history. Some of these people only have a couple years history on the land. I’ll just start out by saying first of all everything, the buffers and everything are assume that the Lake St. Joe is an environmental lake rather than recreational lake. Now I’ve asked Mr. Generous to explain the difference. I’ve never got an answer so I’ve done some homework which we’ll bring up later. If it’s a recreational lake Vanessa then these would change I guess am I correct? Strong: At this time no. Daryl Kirt: We’ll start out with that but I appreciate everybody being here and I see one guy’s missing. I take that as a yes vote so I’m going forward with a lot of confidence here. Aller: Well without one here we still have a quorum so we’ll have a vote. Daryl Kirt: Okay. So I’m going to, if I could if I could just go through what you all have in front of you. Aller: That’d be great. 18 Chanhassen Planning Commission – January 2, 2018 Daryl Kirt: And like I said there’s a lot of history so I numbered it. If you go to page 2. It talks about when they approved the Oaks development there and I had my land before of course that happened but when they did that they approved 35 acres went into homes and development and along with that came a holding pond so, right next to our land. We took on all the water from the Oaks project and probably even further up and the pollution that’s in, the runoff of the city. Not the city sewers but the city’s storm water, and Vanessa’s very familiar with that right? Like I brought the book but all the chemicals and the salt and all that is running down to the same wetland that we’re saying is protected, and I agree with it. Is protected but I’m saying there’s two standards here so do their development and they’re getting 35 acres plus probably some more of this going into my land down there and also to Sue Morgan’s land, which wasn’t mentioned in this and that’s going into the same exact wetland that I agree is protected exactly what he read. Okay. So then going onto page 3 we were here to do this house, and we did. We went through everything. We paid all the fees. We hired a contractor when we bought the land. We knew there’d be some challenges so we hired Braun and Carlson Engineering to do soil borings so we had to go through all the soil bores and the City agreed with our locations. We did the soil bores. We found bedrock so we had to take out the soil that was there. Remove it. Put in new soil. Compact it. It had to be inspected by Itasca Engineer. We did all this here. It cost thousands of dollars to do that and they agreed to this location and the size of our house. The footprint is there. The contractor was supposed to have it done during the summer. He didn’t. He got into winter. It got frost. We ended up going to court. We sued him. Judge Mackey, District Court rules in our favor. We got a judgment for $60,000 but we all know what it’s like to collect from contractors. They’re up and gone so we have a footprint on that land. Our compacted pad is there and is existing so if we’re allowed to go back to the same footprint that we did 30 years ago that was approved we won’t have to do anything as far as a new pad. And working for a year and a half on this and they’ll go through that later too. We were told we can do it over here. Then we can do it over there. There’s a lot of expenses involved in doing this. We bought the land. I didn’t zone it as residential. The city did. They agreed this would be a buildable lot. We believed in it. We did it. We did our part. We paid our dues. We did our pad. It didn’t work. It wasn’t our fault so now I’ve been trying to sell it ever since this happened for 30 years I’ve tried to sell this land and when I put it up for sale I’d run ads in the paper. I had a realtor sell it and the potential buyers would call the City and ask is it a buildable lot. We’ve had a lot of negative comments came from the City. Well that’s the land that the house sunk on. In the first meeting I had with Mr. Generous when I went to get the paperwork he couldn’t find it. It took him 30 minutes and found it in the archives in the basement and he came out of the basement with this little smile on his face. Oh that’s the land where the house sunk. Well the house didn’t sink. The contractor made the error and the error was there’s frost and the pad is still there and we removed. It wasn’t a house. It was just 3 walls of cement was removed so I, we built the house that I live in at 50 Hill Street and I’ve lived there for 30 years. I’m almost 70 years old. I’ve got this piece of land. I want it to go away and my, we had a family meeting. The children said the only way this is going to go away is if we get a permit. We build on it. If we like living there we will. But it gets rid of the problem with a piece of land I’ve had for 30 years so that’s kind of the history of how it, it just didn’t build a house that didn’t work. This 19 Chanhassen Planning Commission – January 2, 2018 was a lot of money spent and a lot of time. So, and then they mentioned, Mr. Generous mentioned the lift station. The easement. In your packet you’ll see it’s not 50 by 50. It says when they started out they had 40 by 40. When it was completion the easement’s 20 by 20 so that’s not correct what he said there so now I’ve got the land. I’m trying to sell it. Nothing’s happening. About 15 years ago I started seeing big puddles of water show up on my land. I’d say what is this coming from so I have a restoration shop. We do antique cars. In the wintertime I drive by it on the way to work. I find a city truck. It’s got the big vacuum cleaner. It cleans out storm sewers dumping that water on my land. I called Channel 9 News. Channel 9 News comes out and the City worker said he didn’t do it and they said well we’re going to take a sample of this water and the guy admitted that he did it. It was 3 days on Channel 9 News top story. Kirt property polluted with city storm water so this is what’s happening to me on that lot so I’ll keep going here. I’m getting excited here so it’s been a long 30 years. So then we go down to like I say, the sewer. The lift station. May of 2017. Now I don’t know if anyone from the City is aware of this. The line broke on that. Mr. Generous are you aware of that? Aller: Okay so I’m just going to try to refocus on the issue which is whether or not we should give a variance on the setbacks and allow for the building. Daryl Kirt: Well I guess this will make sense as I go through it. Aller: Okay can we, I guess what impact would that have on whether or not there’s a setback or not? Daryl Kirt: I’ll tell you in 2 seconds here. Aller: Okay. Daryl Kirt: The storm sewer in 2007, the lift station, the pipe broke to it. It flooded my property with sewage. Raw sewage and I don’t want to be pushed closer to that lift station. I want to be farther away from, exactly where we were before and how did the City clean it up? Are you aware that that pipe broke? Aanenson: We’re not in charge of sewers so I’m sorry I can’t answer that question. Daryl Kirt: What’s that? Aanenson: The planning department isn’t in charge of sewer so we can’t answer that question. Daryl Kirt: Okay, so it broke. It’s obviously broke and you know how it was cleaned up? They came through and opened up the fire hydrant and washed the sewage. It ran to the south and onto my property. The same wetland that we’re, that I agree should be protected too. That’s how they cleaned it. So I mean I’ve got, it just goes on. 20 Chanhassen Planning Commission – January 2, 2018 Aller: So I guess my question is with regards to the wetland it sounds like you want to protect the wetland. Why should we grant a variance for the buffer setback? Daryl Kirt: Because I’m going to show that I don’t feel the lake is, I think the lake is recreational and as we go further, then after that the City came to me and asked for a holding pond and they took a half acre of my land and put it in the exact same wetland that we’re talking about right here. You now have a half acre they took from me as a holding pond and that holding pond is taking all the runoff to the north coming into that wetland also going into Lake St. Joe so now there’s 2 holding ponds on an 18 acre lake and there’s a third holding pond by the public access and a definition of a lake, this environmental can’t have more than a house every mile or so. I counted, there’s 13 houses just on the north side alone and those houses, I don’t think Mr. Generous looked at them but they’re gigantic and the average is 3 to 4 car garage on every one of them that have lakeshore on Lake St. Joe. So by taking Lake St. Joe, we’ve got to make a decision. Is it or is not recreational and it might take a judge to do, I don’t know but that’s my point. Aller: Okay. Nathan Kirt: And I think Daryl, that’s my dad here. He felt the way this is written it kind of makes it look like we don’t care about the lake but we really do. We are conservationists. We love the lake. That’s why we want to be there and we do want to protect the lake. Aller: Right. Nathan Kirt: We don’t, we don’t feel that this variance would be very detrimental to the lake. And I want to live by a lake that has natural surroundings. We love wildlife. We love trees. I’ve already been out planting trees. Removing buckthorn and I know my dad may seem a little upset. He has had 30 years on there. Aller: Sure. Nathan Kirt: And feels he has had a little bit of abuse. Maybe a two sided story were we have storm water coming on both ends of his property. It was full of salt, debris, all kinds of pollution. I mean he just looks for, he’s just asking for a little variance, or I am, we are and we get shut down and acted like we want to go in there and develop a golf course or a 7-11 or something. We love that land. We love that property but we don’t want to be pushed on top of a sewage or a lift station that’s been leaking and stuff like that. But we don’t want to hurt a lake either. I don’t think we would at all doing what we’ve asked to do. Daryl Kirt: Yeah and we’re satisfied with the original, what the original plan was. The City, everyone approved it 30 years ago. The exact pad. My pad is there. We’re happy with that. Aller: Okay. 21 Chanhassen Planning Commission – January 2, 2018 Daryl Kirt: And we gave up some skin already. We gave a half acre of our land away already for one holding pond and with that half acre holding pond, it’s in writing in the contract that the City will maintain the level of the culvert where it goes from Lake Minnewashta, or from St. Joe to Minnewashta because when they did that they narrowed it and the beavers are plugging it up and you can see the water’s up, down, up, down and the City has not done their job as far as maintaining that as well and that caused some of the water to be higher and some of the problems in the wetland. So now we have 3 holding ponds in the same wetland that we’re talking about. Aller: Okay. Daryl Kirt: We have the City with a half acre they’re not maintaining. The beaver control problem. They keep saying they will when we call them. Yeah we’ll fix it. They haven’t. We’ve been going out there 2-3 times a day cleaning up beavers. Beaver dams that keeps the water level and we have the chart that shows. The DNR, we have the chart showing where that level is and how it goes up and down. Nathan Kirt: We’ve been working with the DNR monitoring the lake. Aller: Awesome. That was going to be a suggestion with animals and lakes, DNR is the place to be so, any additional comments? Nathan Kirt: I have a few. Aller: Sure. Nathan Kirt: If you have time. Aller: Yep. Nathan Kirt: You guys have read through the agenda and it says on here the DNR assisted with an on site survey and have concerns. It also says the Minnehaha Watershed had concerns. I’ve spoken with both of them and the Minnehaha Watershed said that they were good with everything and they appreciated me calling and talking with them. The DNR that I met with on the lake, or on land, the only 2 spots where she wanted to add 2 more elevations. The only elevation she took were city elevations. One of a culvert and one of their holding pond. They weren’t issues with us at all. Aller: Okay. Nathan Kirt: And it’s written to make it sound like we had problems with the DNR. I don’t know why it’s written like that. 22 Chanhassen Planning Commission – January 2, 2018 Aller: I think it’s interpretation. I didn’t take it that way so it really depends on your viewpoint when you read them so thank you for clarifying that. Nathan Kirt: …of these agencies have expressed concern over the development of the parcel so it makes me, but I just want to clarify that. Aller: Great. Nathan Kirt: We’ve worked with them and it went good. I enjoyed speaking with the DNR and Minnehaha Watershed. And one other thing I want to just bring up was, we’ve been doing this for a little while and if I could read a little paragraph here when they gave us a buffer of 25 feet and that was about 2 months ago and now last Thursday, that’s the first I’ve seen this agenda and it shows a 40 foot buffer now so I’ve had no working days basically. This was on Thursday evening right through New Year’s and to now. Staff has no authority to approve a building permit for this property without a wetland buffer. Staff reached out to the agencies with jurisdictional authority over this property. Minnehaha Watershed District on 10/23/2017 to determine any additional compromise for a minimum wetland buffer width that could be supported by staff and the watershed district. Staff was able to work with the watershed district to reach a minimum buffer width of 25 feet. Then when I get this agenda it says 40 feet. I guess not long ago. Aller: Okay. Nathan Kirt: So this agenda caught us by surprise and we’ve been working with staff for a long time. Thought we had gotten somewhere. Aller: Great. Thanks for pointing that out. Nathan Kirt: I appreciate you listening. Thank you very much. Aller: Thank you. Any additional questions of staff at this time? Do you want to address the 25 foot buffer versus the 45, or 40 foot buffer please? Strong: Yeah sure I can, and I can understand his confusion. Part of that is just timeline. He read it, as I wrote it correctly. That was back in October and as you’ve noticed there’s been a lot of different agencies involved and a lot of different times. It is true that the DNR, as we’ve been working with them and the watershed district, have been working with them, have supported the work that we’re trying to do with this and their concerns are not that it not get developed, and so I do apologize for that. It’s just how it gets developed. So the timeline between when that was written. After that the DNR came back and had their additional concerns about the setback of the lake and where the lake level actually was. I’ve attached in your packet communication emails from the DNR that were dated actually after that which are in the end of November and the last comment we have from the DNR as far as an email that I attached was they do want to 23 Chanhassen Planning Commission – January 2, 2018 make sure that they see the storm water analysis when it’s ready and that again they just continue to be concerned that the size of the buffer is sufficient and that is what inspired and led to us widening a buffer from 25 feet to 40 feet. Again the DNR has variance requirements. The watershed district has variance requirements. We could grant a 25 foot variance. What I was looking for was something that would not trigger an appeal from another agency right off the bat. That being said all the agencies through my conversations support what we are proposing and they’re most comfortable with what we are proposing. And that’s where we are at now. She he’s right. At that time that’s where we were at but since then the DNR continued to be concerned through November and that’s what kind of led to the 40 foot but. Aller: Thank you. Nathan Kirt: Would I be able to speak just real quick? Is that alright? Aller: Sure, real quick. Nathan Kirt: Because she did email me back just afterwards and she says thanks Nate. I think this looks good. That was the new, with 2 more elevations put on it. I forwarded it to Bob and the City with a note and I believe the survey is accurate. I’ve never been given anything from the DNR saying that they thought anything should be changed and when I talked to them they said it was up to the City. She said this isn’t my job. I don’t make this buffer and we’re, how many feet back are we from the shoreline? It’s like 300 or 200 feet. We’re a long ways from the shoreline. Much, much further than most other houses in the area. Aller: Great thank you. And just to clarify the shoreline setback and the wetland setback are two different items. Strong: Yes, so again we’re talking about two different things and I think that is also one of the difficulties in working with the DNR. We work with both the shoreline and the wetland and they’re almost two separate things, even though in this case they are connected. So in fact in this case when he asked the question as to whether or not it was a recreational lake or a natural system lake, the reason why at that point I said it wouldn’t be relevant is because the buffer is based upon the wetland and not the lake. The DNR is actually the one that sets the status and the type of the lake so whether it’s recreational or natural system that would be up to the DNR. Could that be relevant for the lake? Maybe it is a different one. That I won’t contest. You might have to discuss with the DNR. What my point was simply that the buffer is based actually on the wetland and this is a preserve class wetland so that’s where that came from. Aller: Thank you. Okay, Commissioner Randall. Randall: So…the Kirt’s questions at all or? Aller: Yes, yes. We haven’t opened the public hearing yet. 24 Chanhassen Planning Commission – January 2, 2018 Randall: Just real quick I want, did you, will this be buildable for you this 10 foot wetland buffer variance with the 30 foot wetland buffer setback? Daryl Kirt: This one… Generous: And this is the City’s we had the 40 foot buffer in there. This is his request with the 20 foot buffer and an 18.2 foot. Randall: Alright. Nathan Kirt: The one with the City wouldn’t, I’d have to redesign the house and I’d have to wrap this house around a septic system. A lift station. And it wouldn’t be using our building pad. The building pad is where this is now. Randall: Okay. Nathan Kirt: And where they push us off would be, would not be a building pad. Aller: Everybody good? We’ll open up the public hearing portion of this item so anyone wishing to come forward can speak either for or against the item before us and we’ll try to have any questions answered as you probably will be enlightening us on new issues. Sue Morgan: Hello, my name is Sue Morgan. I live at 4031 Kings Road and it’s the large property right there. Aller: Welcome. Sue Morgan: Linda Scott and I have lived there, well we’ve owned the property since 1985 so we’ve seen a lot happen around Lake St. Joe and we’ve watched as Daryl’s property has gone through a lot of changes over the years and you know it’s, just to give you some perspective. I give Daryl a lot of credit for putting up with what the City has put him through. For what the City has put his property through. We act as kind of guardians of the lake. We do the Secchi readings and clarity readings, things like that and send them into the Met Council so we kind of watch the quality of the lake and the levels of the lake and we have a dock there and Scotty has fought the battle of the beavers. The water levels go up. Go down. Go up. Go down. We’ve called the City how many times to ask the City’s help in getting rid of the beaver. Getting promises made. Promises broken. Watching the water level go up and down. Watching Daryl’s property be flooded with storm water and I hope that the City will enable Daryl and his son to build the house on their property. They’ve been through 30 years of a lot and I think that, I don’t know what the problem is with this property. How the City sees the property but I know they don’t see a lot of value in Lake St. Joe. I feel that they don’t see the value in Lake St. Joe because it’s so small. I know the DNR owns the access. Very seldom do they build up the 25 Chanhassen Planning Commission – January 2, 2018 access. It’s difficult for people to get their boats in and out. We’ve called the City again about the beaver. They do nothing about the culvert. Right now there’s a pile of debris on each of the culvert that feeds Lake Minnewashta that’s taller than I am because the Kirt’s and Scotty and Mark all clean out the beaver dam so if the City does enable the Kirt’s to build the property on this. Build their house on this property, I hope they then support the effort to maintain the lake. To clean the lake. To watch the storm water runoff. Because you know both the DNR and City say that they value it and the wetland setbacks are important but then again as Daryl said they do nothing to support that effort so you know there’s going to be parameters put around them to build their house a certain way and a certain piece of land in order to honor the wetland setbacks. But at the same time the City, the DNR need to do something to help maintain the lake as well so it’s just a perspective on what’s fair for everybody. You know it’s not always the DNR and the City that get their way. The property owner has owned this property for 30 years and I think that you know we, when we built our property got variances for things and I think that you know in seeing the people in Red Cedar Point that got variances to build their home, I think it’s within the City’s wherewithal to try to make this happen. After 30 years it should happen and I don’t know what else to say other than I hope it does. I wish you luck. Aller: Thank you. Any additional comments? Seeing no one come forward we’ll close the public hearing at this point in time and we’ll open it up for discussion. Anyone wish to open up? Commissioner Madsen. Madsen: I just have a question about the responsibility to clean up the culvert area. The beaver house area. Is that the City? Is that the DNR? Is that something that could be addressed and improved upon going forward? Strong: I’ll answer part and then I’ll let Paul answer it. Being new to the City I don’t have that much history. I will say it’s always interesting from my perspective that I look at these resources, again being new to the City and most people anywhere want to live next to these for the wildlife and yet the wildlife is something they want us to manage more and control more and they’re a problem and so I’m always struggling with how to balance the beaver, which that’s not there. Again this is just my perspective. That doesn’t make it your’s or anybody else’s. And so for me beaver management is not what we’re responsible for doing. We’re responsible for making sure the beaver has a place to live. That being said does the DNR have beaver management programs? Absolutely, and I do not know what the history is of the City and what the City has promised for that type of thing but I can tell you from a water resources perspective it’s usually to let the wildlife be there because that’s what that area is for and it’s usually why people want to live in a place like that. They provide critical ecosystem function so I’ll answer that part. Paul maybe you know a bit more about the history of. Oehme: Yeah so the City has been out there cleaning out the culvert underneath Minnewashta Parkway on numerous occasions over the years. It’s something that the City has struggled with and I think the DNR has been contacted on occasion on this. It typically has, typically comes back to the City to maintain it but it’s something that we have struggled with to be honest with 26 Chanhassen Planning Commission – January 2, 2018 you so you know we’ll look at it a little harder I guess is what I’ll say and see if there’s any other opportunities to maintain that area a little bit better but it’s, I know it’s been a problem ever since I’ve been working here so. Aller: So just to clarify. Is the DNR telling the City this is the way we want it and then we’re responsible to actually just do and put in the condition that they want to keep it in or is it, or are they saying oh it’s up to the City? Oehme: Yeah, I haven’t been part of those conversations but it’s my understanding that DNR resources are stretched thin too so I don’t think they have the resources to maintain you know outlets like this in every lake in Minnesota but you know we’ve tried to maintain it on occasion when people call in. We’ve had to clean it out on occasion too. Aller: And I know it’s not an easy thing to do because we’re dealing with, not necessarily this property but as Chanhassen as a city we’re dealing with 3 different watershed districts. We’ve got a lot of people to deal with plus DNR plus Army Corps of Engineers who are all telling us this is the way we want it to be but they don’t have the manpower to do it and they put it back on the city to do what they want the way they want it so we’ll see how that pans out. Daryl Kirt: We have the answer. We have the answer right here to answer the question. It’s a contract signed, when I gave the half acre to the City in a contract the City said that they will maintain that culvert and that problem. It’s in writing with a contract with the City. Aller: Okay, so that answers the question as far as. Daryl Kirt: …get back my half acre of holding pond if they’re not going to maintain the contract. Sue Morgan: Not only that but from. Aller: Okay the public hearing’s been closed at this point so. Sue Morgan: Sorry. Aller: That’s okay. That’s okay. Daryl Kirt: It’s easier to do it in court. I’d rather don’t have to go to court to get it settled. Aller: Well you know a lot of the issues here are probably in the report already or have been addressed so I just don’t want to go over it 3 different ways so let’s see how it pans out first. Daryl Kirt: Okay. 27 Chanhassen Planning Commission – January 2, 2018 Aller: Okay. And if it’s, if it is something that’s in your favor then you can run with it. If it’s something that’s against you then you have an opportunity still to go before the City Council to overturn on whatever we’ve done so, on an appeal so at this point I’m concerned and still concerned about the setbacks because I do want to protect the watershed and I do want to protect both the lake, and it sounds like everyone’s concerned with protecting the lake and protecting the wetland so what I’m hearing is that everyone seems to be amicable with the modified or amended plan so I would be willing to, because it’s a reasonable use of the property, vote for that particular plan if a motion is made in that vein. That’s pretty much where I’m thinking at this point. Tietz: Chairman Aller I just have one more comment on the beaver. Aller: Sure. Tietz: Yeah I like animals too but when they create a problem and they’re a nuisance animal and creating a detrimental to private property, you know in Bloomington and I don’t know if we have it here in Chanhassen but they have deer hunts because the deer are a problem in some communities and I don’t know what the DNR program is but I certainly side up with the landowner in this situation. If we’re creating a detrimental condition because of a beaver and that water level is fluctuating to the point that it’s detrimental to property values around the lake, I think that I don’t know if we have any leverage with the DNR. It’s an animal control issue as opposed to, I think as opposed to a city issue but I think we should work diligently to you know, St. Joe is a dog gone pretty lake and I’ve driven by that for years and there’s a lot of private land that really doesn’t come up to the shoreland because I think, didn’t we deal with a dock issue last year and we said you know, it’s not right in this situation to, because it is a wildlife lake with limited access so enough said. I think I certainly support moving forward. Aller: And I agree with you there. I just don’t think it’s part of the variance decision… Tietz: No it’s not part of the variance so I think it needs to go on record that something should be done with the DNR. Aller: So before we continue with anything I think we would all agree, unless I hear something different now, to make the recommendation that the City look into assisting with the resolution of the potential damming of this culvert and then I would also just say, people out at St. Joe get on the phone with DNR and hit it from both sides. Sue Morgan: It’s not the DNR. It’s a drainage issue. Aller: Well, wherever you can get your assistance so maybe the DNR will come in and say we can help you out in some form or fashion so I don’t think it’s a bad thing to ask for help from anywhere you can get it. So back on the variance. Commissioner Randall. 28 Chanhassen Planning Commission – January 2, 2018 Randall: So on the variance, I just wanted to thank you Mrs. Scott for, Scott for coming because. Sue Morgan: Morgan. Randall: Morgan, I’m sorry. Sue Morgan: That’s alright. No problem. Randall: I wrote it down wrong because I know when we dealt with the dock issue I really learned a lot about the lake and how it’s a really great lake to have in our community and everything. The concern I have is with what they’re asking which brought up are we going to trigger an appeal with one of the watershed districts or what not and I know that this is a compromise to prevent that from triggering. We all know from when we amended our ordinances how they were all over the place and we’re trying to keep that consistent to make it easier for people and not get stuck in that watershed problem so the way it’s amended by the City, I totally agree with. I wish we could do more but I think it’s just going to cause them more problems if we move forward so. Aller: Commissioner Weick. Weick: My concern is with the homeowner, or the landowner in this case, actually doesn’t sound like they’re okay with the buffers as amended. Their request was for the 10 foot and the 30 foot and so they, I don’t know. Maybe that doesn’t matter and we just, I’m opposed to it on every front. I’ll just say that. I am not in favor of. Aller: Even as amended? Weick: Even as amended. Aller: So you don’t think it goes far enough with the buffers and the protection for the wetland? Weick: I don’t and I think, you know I struggle with this. I struggle with it with Red Cedar Lake which is what we just heard. I struggle with it with the majority of variance cases that now come in front of us where there is land that’s difficult to build on and sometimes the land is unbuildable in my opinion and we’ve, I can name off the cases and we can go back and read the record of the ones that I’ve considered unbuildable and we continue to build on them. Anyway so my voice is very, very quiet but I just don’t believe that it’s an appropriate. It doesn’t feel like it’s for the homeowner, I don’t think it fits for the wetland and the buffer and so I am opposed. Aller: Any additional comments or action, proposed action. Madsen: I share Commissioner Randall’s opinion on the, although this doesn’t fit what the homeowner is requesting and I, he’s worked so hard on this property and so long and had some 29 Chanhassen Planning Commission – January 2, 2018 really frustrating things for him but the concern would be if a larger variance was granted it wouldn’t get approved by those other watershed districts and from the sounds of it is they are all in agreement that this would be something that would be agreeable for them so that’s why I would support it. Aller: Any additional comments or action proposed? I can’t make a motion so. Madsen: Okay, I will make a motion. Aller: Commissioner Madsen. Madsen: The Chanhassen Board of Appeals and Adjustments approves a 10 foot wetland buffer variance and a 30 foot wetland buffer setback variance to construct a single family home subject to the conditions of approval and adopts the Findings of Fact and Decision. Aller: I have a motion. Do I have a second? Tietz: Second. Aller: Having a valid motion and second, any further discussion? I tend to agree with the idea of protecting the wetlands which is what I was going for before. However I think when we look at variances we look at the different hardships. There may be a difference in opinion as to where the hardships have been created but I think it’s based on the fact that this lot is situated the way it is. The watershed districts have changed their buffer requirements and they may change in the future but as they sit now I think it’s a reasonable use of the property with a reasonable accommodation on the buffer for the wetland and living on a lake myself I’m real concerned about those things but I think in this particular situation it would appear to work for both the homeowner and protect the wetlands at the same time so I will be voting in favor. Any additional comments or questions? Madsen moved, Tietz seconded that the Chanhassen Planning Commission acting as the Board of Adjustment and Appeals approves a 10 foot wetland buffer variance, requiring a 40 foot wetland buffer, and a 30 foot buffer setback variance, requiring a 20 foot wetland buffer setback, with a 10 foot wetland buffer setback for accessory structures subject to the following conditions and adoption of the Findings of Fact and Decision: 1. A complete grading, drainage and erosion control plan shall be submitted as part of the building permit application process. 2. Erosion control shall be installed outside the wetland buffer area prior to any on site construction activity. 30 Chanhassen Planning Commission – January 2, 2018 3. The delineated wetland edge required wetland buffer and structure setbacks shall be shown on the building permit survey. 4. Wetland buffer signs shall be installed at the front building setbacks and at each turn in the wetland buffer for a total of five signs prior to any construction. 5. Any impact to the wetland buffer shall be restored to the satisfaction of the City of Chanhassen prior to the issuance of a certificate of occupancy. 6. The applicant shall obtain all required permits from review agencies with jurisdictional authority. All voted in favor, except Commissioner Weick who opposed, and the motion carried with a vote of 4 to 1. Aller: Motion carries. TH 531 WEST 79 STREET – PANERA SITE PLAN REVIEW. Generous: Thank you Chairman Aller and commissioners. The public hearing before. Aller: If we’re going to have conversations can we take them outside please. Thank you. Please proceed. Generous: The public hearing before you is a site plan review for a Panera Bread restaurant on, th at 531 West 79 Street. Today is the public hearing. This goes to the City Council on January nd 22. Panera LLC is the applicant. Chanhassen Inn is the property owner. This property is th located between West 79 Street and Highway 5. To the west of this site is a city owned property with a storm water pond in it. To the east is Chick-fil-A restaurant which was recently opened last year so there’s a joint access for both properties along the east side of this property line. Chick-fil-A additionally has another driveway on the east side of their site. The property is zoned business and highway services district. The request is for, to construct approximately a 4,500 square foot one story restaurant with a drive through and this has come up since the staff report went out. They’re requesting a variance for the use of EIFS. Exterior insulating finishing system as a primary material on the building. EIFS is similar to stucco but it’s a modular unit that they use. The applicant from Panera wants to discuss that further. We did notice this for variances so it’s something that the Planning Commission could review. The intent of the business and highway services district is to provide for highway oriented commercial development restricted to a low profile building. This building has a total height of 21 feet. It’s one story so I believe it complies with that requirement. Fast food restaurants are a permitted use in the BH district so the proposed use of the property would be consistent with our zoning. Additionally they have joint cross access and cross parking easements with the property to the east. As part of the Chick-fil-A development they actually built 13 more parking stalls than are 31