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08-5-92 Agenda and Packet FILE AGENDA CHANHASSEN PLANNING COMMISSIL_ WEDNESDAY, AUGUST 5, 1992, 7:30 P.M. CHANHASSEN CITY HALL, 690 COULTER DRIVE CALL TO ORDER PUBLIC HEARINGS 1. Conditional Use Permit for a Portable Chemical Toilet on a Recreational Beachlot for Minnewashta Heights Homeowners Association. 2. Non-conforming Use Permit for a Recreational Beachlot for Lakeview Hills Apartments Homeowners Association. _ 3. Wetland Alteration Permit for alteration within 200 feet of a wetland located at 7201 Juniper Avenue, Greg Dattilo. *Item Postponed Until August 19, 1992* 4. Zoning Ordinance Amendment to the City Code defining dock setback zones. 5. Wetland Alteration Permit for a Right Turn Lane Adjacent to a Wetland, Cheyenne Trail and Hwy. 101, City of Chanhassen. NEW BUSINESS OLD BUSINESS APPROVAL OF MINUTES -- CITY COUNCIL UPDATE ONGOING ITEMS ADMINISTRATIVE APPROVALS OPEN DISCUSSION ADJOURNMENT 8:30 P.M. CITY COUNCIL/PLANNING COMMISSION GOALS WORKSESSION C IT YOF PC DATE: August 5, 1992 CC DATE: August 24, 1992 , Y CASE #: 92-1 Al-Jaffe By: STAFF REPORT PROPOSAL: Conditional Use Permit to Install a Portable Chemical Toilet During the Summer Season on a Non-Conforming Recreational Beachlot F- LOCATION: North of Lake Minnewashta and South of Shore Drive. Lot 9, Block 5, Minnewashta Heights. __ 11 APPLICANT: Minnewashta Heights Homeowners Association 6300 Dogwood Avenue Excelsior, MN 55331 PRESENT ZONING: RSF, Residential Single Family ACREAGE: Approximately 7, 500 square feet DENSITY: ADJACENT ZONING AND LAND USE: N - RSF; single family S - Lake Minnewashta Q E - RSF; single family W - RSF; single family ' WATER AND SEWER: Available to the site. Li PHYSICAL CHARACTER. : The site is a riparian lot to Lake Minnewashta. 2000 LAND USE PLAN: Low Density Residential / ! - ACATHCAR4T BAr/NNEWASHTA PARK 14E/6HTS PARK c g co eeOOIcM 8 g o o o c0nvrn rn PI I S j t ./ am I 1 _....Nall I 11111.111. 611.111 ...---- U j .....- irlagtF-4111 .‘ um.: , IrPr/iiia..:..4.4. ,iii ST / in giftS.4 ilih, 4.7p11 , /- vic 1 itii; 40_ _I VW - ma It r: - tik ,_ ___-- -----------„,..__=,-. ,. ,_ _ , j illpov _atiliiiivinf --- ch - it ..., i.„. - __...,,,L2,_,.... .. , i 'Ailmvalleit , - MIIIII MINI f-,/\. 40 1 __ _ iiiii , , ,, , ,,„ . \ ._ ...„01.3,47.4 _ __;.,___-_------ ---- - ---,-- ___.r...77gy, IN. �.4/��; v' i \� ;/ 'QCT 10+ �v \l • #4).iingits,pvi 1 cc) /,---N____ ..-.---",„" . \ • `sa , ' `�01714 11 a. ■ ) via 1 CI- LAKE • "q' i � LAKElIPP°' C • - om TRY 7 -,/ i'' 0 „_•.�JARI w W I N N E W A S H T A . e.� ` � IIIIMINNIRR, SO Inkd'/ REGIONAL Roo. MIIIMI t,;\ - _ ;( • iS.TL A ft°E -; P.. .11& • /h � -\ / Ani / /l•ii� b 1:3 - IIn �V / il C vR Wl15HT8 ' /1 tr T - /(r �/` - DRIVE 0 SC 4 CiR = ,� L l., O f i1'lo II. Trip\ ,-46 00tI\ e k! Minnewashta Heights Beachlot August 5, 1992 Page 2 PROPOSAL/SUMMARY The applicant is proposing to install a portable chemical toilet during the summer seasons on the recreational beachlot owned by the — Minnewashta Heights Homeowners Association. This beachlot does not have a Conditional Use Permit as it was created in 1953 and predates the Zoning Ordinance. In 1981 when city staff conducted the beachlot survey, this recreational beachlot did not have a portable chemical toilet therefor the requested portable chemical toilet can not fall under the grandfathered in status . Although this beachlot does not meet today' s standards, it is extremely well kept . A redwood fence is located to the southeast and southwest edges of the property. A sand blanket is located on the south portion of the property. The site also contains a canoe rack located to the southwest of the site which is the approximate location of where the applicants are proposing to install the portable chemical toilet . The portable chemical toilet is proposed to be enclosed in a framework of redwood on three sides with the canoe rack in front concealing the view of the door. Staff recommends that climbing vines be planted at the base of the frame work on all three sides of the structure. Staff is recommending approval of the conditional use permit request with appropriate conditions . BACKGROUND Minnewashta Heights subdivision was approved in 1953 . There are approximately 74 homes in the association. The beachlot is 7, 500 square feet in area and has 50 feet of lake frontage. The beachlot does not meet the current minimum requirement of 200 feet of lake frontage or the 30, 000 square feet of area . This beachlot never received a Conditional Use Permit as it predates the Zoning Ordinance however, on July 13 , 1992, this beachlot received a Non- conforming recreation beachlot status . The toilet may be installed — prior to the Planning Commission review of this request based upon approval of the Planning Director. Conditional Use Permit Section 20-263 of the City Code, subpara . 16 allows portable chemical toilets as a condition of approval of a recreational Minnewashta Heights Beachlot August 5, 1992 Page 3 beachlot . Minnewashta Heights Homeowners beachlot was never given a conditional use permit as it predates the Zoning Ordinance however, on July 13 , 1992 , this beachlot received a Non-conforming recreation beachlot status . The ordinance states that any use of — chemical toilets on recreational beachlots shall be subject to the following conditions : a . The minimum setback from the ordinary high water mark shall be 75 feet . Side and front yard setbacks shall be maximized to achieve maximum screening from adjacent lots and the lake. * The applicant is proposing to locate the portable chemical toilet at a distance of 76 feet from the ordinary high water mark of Lake Minnewashta, with an 8 foot setback to the west, 6 feet to the north and a 155 feet on the east . The portable chemical toilet will be enclosed in a framework of redwood on 3 sides and a Canoe rack concealing the view of the door. Staff is recommending that climbing vines be planted at the base of the redwood framework on all 3 sides of the structure to maximize screening. b. It may only be used Memorial Day to Labor Day and shall be removed from the lot during the rest of the year. * A copy of the service agreement has been submitted to the city. A date for delivery of the unit has not been specified however, the pickup date is September 8, 1992 which is the day after Labor Day. c . It shall be securely anchored to the ground to prevent tipping. * The applicant has requested a Biffs portable toilet unit . Each Biffs unit is mounted on skids which extend from the front and back 1 to 3 inches . To stake the units to the ground, they use 18 inch wooden stakes that are driven into the ground and then nailed to the skids on 2 sides of the unit . Also, building a wooden shelter around the portable toilet to contain the unit will leave very little room to move or rock the unit, thus discouraging vandalism. d. It shall be screened from the lake and residential property with landscaping. * As mentioned earlier, the applicant plans on providing a - lattice framework on three sides of the unit with an extension in front concealing the view of the door. Minnewashta Heights Beachlot August 5, 1992 Page 4 Climbing vines are proposed to be planted at the base of the lattice on all three sides of the structure. A 42 inch oak tree located west of the proposed location of the portable toilet will provide additional screening from Minnewashta Parkway. e. It shall be serviced at least weekly. * The contract indicates that the unit will be serviced at least once a week by Biff . f . Only models designed to minimize the potential for spilling may be used. * Biff uses specially designed tanks that are designed so that the contents cannot spill out if tipped unless the tank is over half full . Furthermore, Biff uses chemicals that are bio-degradable to be environmentally safe in case a spill did happen. g. Receive an annual license from the City Planning Department . The license shall be issued unless the conditions of approval of this ordinance have been violated. All license applications shall be accompanied by the following information: 1) Name, address and phone number of applicant . 2 ) Site plan showing proposed location. 3 ) Name, address and phone number of chemical toilet supplier. 4 ) Plan for commercially maintaining the chemical toilet, including a copy of any agreement for maintenance and the name, address and phone number of person responsible for maintenance. 5 ) A written description of how the applicant intends to screen the portable chemical toilet from all views into the property, including views from the lake. * The applicant has submitted all of the above requirements as shown in the attachments . Staff is recommending that climbing vines be planted at the base of the framework to provide additional screening. Although the applicants are seeking to intensify the use of the recreational beachlot by adding a portable chemical toilet on a beachlot that does not meet today' s standards, the applicants have kept the beachlot well maintained. If improvements were believed to be necessary, in the opinion of staff, we would have proposed that these be required. However, upon review of the site, we find it to be satisfactory. The portable toilet will be at a reasonable Minnewashta Heights Beachlot August 5, 1992 Page 5 distance from the high water mark of Lake Minnewashta and will be — screened with a wooden framework as well as vegetation. The climbing vines will provide additional screening. RECOMMENDATION Staff recommends the Planning Commission adopt the following motion: — "The City Council approves Conditional Use Permit #92-1 to allow a portable chemical toilet on Minnewashta Heights Homeowners — Association Recreational Beachlot with the following conditions : 1 . The applicant applies for a license from the city on an annual _ basis prior to installation of the portable chemical toilet . 2 . The portable chemical toilet shall only be permitted from Memorial Day to Labor Day and shall be removed from the — beachlot during the rest of the year. 3 . The beachlot shall be maintained in good condition in a manner — consistent with previous approvals and current ordinance requirements . 4 . The portable chemical toilet shall be located in accordance — with the application/plans received by the City on June 26, 1992 . 5 . Climbing vines shall be planted along the base of the portable chemical toilet wooden framework. " ATTACHMENTS 1 . Portable chemical toilet application. • 2 . Plan showing proposed location of portable chemical toilet . — 3 . Letter from applicant dated June 26, 1992 . 4 . Copy of service agreement between Biff and Minnewashta Heights Homeowners Association. — 5 . Staff report and Planning Commission minutes dated June 22, 1992 . CITY OF CHANHASSEN 690 COULTER DRIVE _ CHANHASSEN, MN 55317 (612) 937-1900 DEVELOPMENT REVIEW APPLICATION APPLICANT: 10 m -'.1f- r- 0 4orif OWNER: . 1-- U �• / � / ADDRESS: 63o0 l_ &V ADDRESS: 1�10r N'7. 5533 TELEPHONE (Day time) Ln "(07 ( pHONE; 417 q r (D 713 1. Comprehensive Plan Amendment 11. Subdivision 2. Conditional Use Permit 12. Vacation of ROW/Easements 3. Grading/Excavation Permit 13. Variance 4. Interim Use Permit 14. Wetland Alteration Permit 5. Notification Signs 15. Zoning Appeal 6. Planned Unit Development 16. Zoning Ordinance Amendment 7. Rezoning 17. Filing Fees/Attorney Cost 8. Sign Permits 18. Consultant Fees 9. Sign Plan Review 10. Site Plan Review TOTAL FEE $ A list of all property owners within 500 feet of the boundaries of the property must - included with the application. Twenty-six full size folded copies of the plans must be submitted. 8W X 11' Reduced copy of transparency for each plan sheet. * NOTE - When multiple applications are processed, the appropriate fee shall be charged for each application. CITY OF CHANHASSEN 690 COULTER DRIVE CHANHASSEN, MN 55317 937-1900 PORTABLE CHEMICAL TOILET APPLICATION Homeowners Association Name MI ne_v ,_. deiok Name of Person Applying ---GY\ n — Yc5i r4tr14- Address ((W0 LoctoCJ Rt EX(J. . tor- HN 55331 Telephone No. Daytime '17y (07 l 3 Evening q77 r7 3 Name of Chemical Toilet Supplier (' t Sr1C�r' ra-t-e Address f 9C El) I ggTh ;4- Telephone No. 1I3- 73021 Name of Person Responsible for Maintenance "la-C-3 =n147^,rQ-1-ed Address j• ` ea • i Telephone No. 435- 7a2 ) The following information must be submitted: 1. Site plan showing proposed location of chemical toilet. 2 . A written description of how the applicant intends to screen the portable chemical toile from all views into the property, including views from the lake. 3 . A plan for commercially maintaining the chemical toilet, including a copy of any agreement for maintenance. Approval Date CITY OF CHANHASSEN CARVER AND HENNEPIN COUNTIES, MINNESOTA ORDINANCE NO. 146 AN ORDINANCE AMENDING CHAPTER 20 OF THE CHANHASSEN CITY CODE CONCERNING RECREATIONAL BEACHLOTS THE CITY COUNCIL OF THE CITY OF CHANHASSEN ORDAINS: Section 1. Section 20-263 (2) of the Chanhassen City Code is amended to read: Except as specifically provided heroin, no structure, ice fishing house, camper, trailer, tent, recreational vehicle, or shelter shall be erected, maintained, or stored upon any recreational beachlot. Section 2 . Section 20-263 of the Chanhassen City Code is amended by adding subparagraph (16) to read: Portable chemical toilets may be allowed as a condition of approval of a recreational beachlot. The maintenance and use of chemical toilets on some beachlots may be unsuitable because they cannot be adequately screened from residential neighbors or lake users. Any use of chemical toilets on recreational beachlots shall be subject to the following: a. The minimum setback from the ordinary high water mark shall be 75 feet. Side and front yard setbacks shall be maximized to achieve maximum screening from adjacent lots and the lake. b. It may only be used Memorial Day to Labor Day and shall be removed from the lot during the rest of the year. c. It shall be securely anchored to the ground to prevent tipping. d. It shall be screened from the lake and residential property with landscaping. e. It shall be serviced at least weekly. f. Only models designed to minimize the potential for spilling may be used. g. Receipt of an annual license from the City's Planning Department. The license shall be issued unless the conditions of approval or this ordinance have been r05/01 /91 violated. All license applications shall be accompanied by the following information: i) Name, address, and phone number of applicants. ii) Site plan showing proposed location of chemical toilets. iii) Name, address, and phone number of chemical toilet supplier. iv) Plan for commerically maintaining the chemical toilet, including a copy of any agreement for maintenance, and the name, address, and phone number of person responsible for maintenance. v) A written description of how the applicant intends to screen the portable chemical toilet from all views into the property, including views from the lake. Section 3 . This ordinance shall be effective immediately upon its passage and publication. PASSED AND ADOPTED by the Chanhassen City Council this 6th day of May , 1991. ATTEST: Don Ashworth, Clerk/Manager Donald J. Chmiel, Mayor (Published in the Chanhassen Villager on May 16 , 1991. ) M 1 Mif i..),)jejtb_ 1..k.j,•\,1_5 i ,-. - • . Piccia-\--ioy-1 . . • (,) --Z- , -.... , . .... ..7.. • . ,--* ! < - - • ._ ....‹1 t 0- ...--:_-: C P --• 6 -- , F .... 41•1= • • . • ._ --- 02F l'.1 . , j --- V , . , • • 7.,31 •-: 7--). %.. 0 - 1 .... ••_. ._ r- - le r-k-ik t".-)Lt:A.-Th .1-- li I t e4" ...b'- ..... 11 rt,' ••• ._ ._ ___-- ,, Th ____ 9, s .., . . • :-., .... — S _ ' — Lo * '--\\-- '\ - ----,----)--- ! ,_ . C Jrihan 6?6, 9 , 1)e prp posed Chem,cal -Joi 11 on -fie; Lake 1141.nnewo5A i h M leach Issocia on bL 5cremcci on -kiir S ides , three 5/des b y re diood -Pell i►33 one 5; b Cance rQ!' ,s . ji5 ahemiL�i-I rs need San dal-Mil retwrrs . 72 homes are. - be tong I -}c e assa,`al/ ahem ] /te i- o.,dll �.,e CCe ,wed and 5er)iced co a c)c.-.dy ,0.50 In allid/21 any 17tecled pal rs . POLICY AND PROCEDURES MANUAL February 5, 1992 BIFFS, Inc. - Service Procedures SERVICE PROCEDURES Each time a portable restroom is serviced the following procedures will be performed: 1 . All waste will be pumped from the tank and rocks, ice and other debris removed. 2. All surfaces will be scrubbed with the appropriate brushes and chemical solution from chest level down. 3 . The floor will be cleaned of mud, ice and other debris and then scrubbed. 4. The urinal will be scrubbed inside and out including periodic de-scaling as needed. 5 . Graffiti will be removed as much as possible weekly. 6. Fresh water and chemical solution will be added to tank: Light - medium use units : 5-6 gallons Heavy use units: 7-10 gallons Special Events: 7-10 gallons 7 . Deodorizing Spray will be used as needed. 8 . Toilet tissue will be replaced or replenished. 9 . Screens, urinal hose and seat will be checked. 10. Surfaces will be towel dried. 11. Ledges above screens and door will be wiped off. 12. Needed repairs will be done or if necessary scheduled for replacement or repair in the shop. 13 . Proper and level placement will be confirmed. 14 . Driver will sign and date the service log sticker in each unit. 15 . If a unit is blocked or in some way inaccessible, a No-Pump Service Procedure will be performed. A No- - Pump procedure includes all of the above except the pumping. eleir.+1 ,111C. PORTABLE RESTROOM SERVICE • MOBILE OFFICES 1901 West 144th Street Burnsville, Minnesota 55337 _ Telephone: 612-435-7321 FAX: 612-890-7258 July 28, 1992 RECEIVED City of Chanhassen JUL 3 0 1992 ATTN: Sharmin Al-Jaff CITY OF ChH.NNASSEN 690 Coulter Drive Chanhassen, MN 55317 Sharmin, In response to your request , this letter covers the service agreement we have with the Minnewashta Heights Beach Association. The portable toilet on that property is serviced once a week. The termination date for that service will be September 8, 1992, if not requested before that date. As to your question on the chemicals used, please find enclosed a Material Safety Data Sheet which covers what is used in accordance with the U.S. Department of Labor. If you have any other questions, please feel free to call me. Sincerely, *121,_Linda Radcliffe Office Manager cc: Minnewashta Heights Beach Association ff• • CLAtv w� i Material Safety Data Sheet U.S. Department of Labor May be used to comply with Occutatintwl Safety and Health Administration CSHA's Hazard Communication Slandard. (Non-Mandatory Form) 29 CFR 1910.1200:.Standard must be consulted for specific requirements. Form A�prOvCd i ()%18 No. 1218-0072 ICE'JTITY (As Used n Label and List) I Noto., Blank spaces are not permitted. d anyitem is not a^ RR"!IE Rc. DEED 11 rp»Ca�,e, et re information is available, the space must be marked to inCZcate that. Section I Manufacturer's Name E-n r^Cr - Te.cphone Number J & J CHEMICAL CO I (365) 133-77741. cz,e:s (Monter, Street, Cay, State, and ZIP CoCe) 'eiecnone Number for Information • 2600 NW 55th Ct. Suite 230 (305) 733-7774 Ft. lauderdale, Fl 33309 • Cato Prepared$/88 Si,nature+ of Preparer(optional) Sec:ion II — Hazardous Ingredients/Identity Information Other urnite Ccm^ n'nts fS;eciJc Chemical Identity: Common Names) OSHA PEL ACGIH TLV • Recommended . %(c.vlcnzo C A S NA:Z 1.5 PENTANEDIAL r./a 0.2PPM CEILING n/a n/a S =11 -30-8 S='`,SIT=ZER. HARM LTL IF I`*H-.LED. ABSORBED THROUGH THE SKIN, OR SWALLED MIXING PROCEDURE: Mix 17 oz. per 100 gallons of Water - Summer • Section III — Ph�sica(:Chemical Characteristics - •LT-- i ;-a:J - 1) • 16.=. i I err,• i-8,:j ,� ; :acc:a::on Rate ., r. 1 _.:t .ace:ate 1) 0 SS ata -: Ea -:a ant: Cc:r ---- .IE LIQUID C•ERF. ___ i4LOR LEC L.. Section IV — Fire and Explosion Hazard Data E: il.;e:-rte. ..sec) .\t,J..�,-1AV L—., .:J L .. - a^-dL 2 iam'a ! - _C'1! � - �•�'• r' `.!'w T ••� ^�• CUP c�,.� � Lam_ n I V c_ ^ r1 ., .NC. .-. _ AN CFE t °- t•frTHX CL I rT..}.'yti. j SFRA.. , CARBON D_�'N_TDE. DR`. ;LCCHOL OR UN_V ERSAL FOAM! . t .n;y_L•Or, V — HCaCtivity Data C'5.:3bil1y Unstable 1 Conditions to Avoid AVOID EVAPORATION OF WATER _ Staple I x I ___ ►neompatiVWT lanof'i i xALIDS A`;D ALKALIES • Hazardous Decomposition or Byproducts BURNING MAY PRODUCE CARBON MONOXIDE AND/OR CARBON DIOXIDE 4 Hazarccus May Occur Ccndiuons to Avgid — Polymenzation AVOID REMOVAL OF WATER AND CONTACT WITH ALKALIES - VJiII (j,pt Occur . I I ] I Section VI — Health It.izard Data rc :a(s) of Entry: Rr�;U`+ cf6 , .+.ctl VTTH SOAP & WATER:DO NOT (Iil NDUCE VOMITING I,ri.:n Hazards (:cure and Chronsc) GIVE 2 GLASSES OF WATER & SEEK :v'.E'DICAL • ADVICE. Carc,ncsen c:;y: NT?? IARC Monographs? OSHA Regulated? Ni NO c•-.s and S mptems of Exposure PROLONGED CR REPEATED CONTACT COULD RESULT IN POTENTIALLY HARMFUL AMOUNTS CF MATERIAL. VAPOR IS IRRITATING. LIQUID TO EYES WILL CAUSE SEVERE INFLA`LATION. McGical Conditions NONE KNOWN Generally ACcrava:ec by Exposure NONE .,+0:'•.+ +L—~ �•v- °cam 3F,'`s,.j`y J-:I• 'Z WATER FOR MTN. FOR SKIN, WASH WITH SOAP & WATER. IF SwAL'...OWED — 2 .cc- ..-...I.7-.=?.. DO NOT I'.::::,7 VO:-!ITING. 77 INHALED,RENCV E TO :REST. AIR. Section VII — Precautions for Safe Handling and Use ;r "'.." - t t'_.a5_Si ' l.n•..,.. :..:"."-r1• S:e:.2,12$�:.::,ertr �.2sa :tic'5:13;$T�?aTf=:.7: W•TERS. LOW CONCENTRATIONS (?OP?>)CAN BE I .":l .V :l n. :✓1 ..:r.t�V.:. ..J .;AIuRAL r++ •� GRADED IN A 3I^,L CG7CAr TP=ATM=NT SYST=M. SMALL SPTILS CAN BE FLUSHED WITH LARGE QUANTITIES OF '..TATER. LARGE SPILLS SHOULD 3E COLLECTED FOR DISPOSAL. •.+s:e C.s:csa. .:etnoC Sc::: CT ...r.V..,.rC DECCNT.'.!•1":ATE 3Y C R=. .:L -.pPL :r-:t.,.-^N OF AO „.EO'v S CITHYDROXIDE. `.1AL . GRAD=D TN A TRFA7.17NT 7T N- . ..,T INTO HOT INCINERATOR F_RE. rAVJ DSBR aTHI G VAPOR a-e 5C- IN EYES.OR SKIN OR ON CLOTHING. KEEP CONTAINER CLOSED. USE, WITH ::E:;UA=: VENTILATION. :AS: THOROUGHLY AFTER u"'D:\G. C:::.er ?recau.its _ ! .. =p (='r:f:' ^C np r:.(77: c'•:'":' •• a`:n )r�pr7 r• nr. C j,7 7" ;71\ �r T\r: Z Section VIII — Control Measures nes:ra:crJ Protection ;Spot.'/ 7:.:21 •, AIR SUPPLIED MAS:: -IG;! CONCENTRATION :er.:.,a:•cr. Lccal Exhaust :DSpec:al . E._a:_ I IF VAPORS IRRITATING Mec•'•anicm (Geneve.; ,r,,.. ,`. ' Other .;/A ?r;,:ec:xe G-.es 1• Eye P.':):Pc:ion r� nn,•,SII_? VAPOR `. R PROO7 r'" •t C `er P :aC:.“) C.0:1.ny . L...:.'Tc”: +.'. -_ .�riZ---ter+—_ .rw..` z .; 11 ��'^•[[`� �` a` ;�'�s //''`` • z'�}"•a•o L,,A, „„,,..2, .!\ . .sem: _.-. :._^ ..,--,_;;;VES 41E' HANDLING __ :L = *U.S. G•••.ww.•.1 •.....i., w, if1.-11 1.sz• 6: { , CITY OF r IIANIIASSEN 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937-1900 • FAX (612) 937-5739 Aolof ifCb A1MN111114131 Waved 1/D11-)A MEMORANDUM > S+bm:rtod tr Commis/ler TO: Planning Commission iubmttsd Cokip* FROM: Kate Aanenson, Senior Planner DATE: June 22, 1992 SUBJ: Minnewashta Heights Non-Conforming Recreational Beachlot Minnewashta Heights subdivision was approved in 1953. There are approximately 74 homes in the association. The beachlot is 7,500 square feet in area and has 50 feet of lake frontage. The beachlot does not meet the current minimum requirement of 200 feet of lake frontage or the 30,000 square feet of area. A survey of the beachlot was undertaken by city staff in 1981 and it showed that there was 1 dock (150 feet in length), with a total of 6 boats at the dock with room for 14 boats. The survey in 1981 showed there were two canoe racks (with space for 12) noted. There is a swimming beach and a swimming raft, all of which appeared in the 1981 survey. The location of the docks appears that it meets the dock setback zone, but it also appears to be at the absolute minimum. The setback zone requires a 10 foot setback from the adjoining property. This beachlot also has a swimming beach and raft, with only 50 feet of lake frontage. It appears that it may not be safe to have a swimming beach in a beachlot with only 50 feet of frontage. The swimming beach needs to have buoys installed to delineate the beach area. The association is requesting 14 boats docked and 2 canoe racks with boats. The association have provided documentation of the number of boats approved, by the association to be docked going back to 1972. In 1981, the association minutes shows 17 names approved for docking. = Is t a PRINTED ON RECYCLED PAPER Minnewashta Heights Beachlot June 22, 1992 Page 2 SUMMARY The association is requesting what they feel is the 1981 status quo of their beachlot with 1 dock, 150 feet in length, 14 boats to be docked and two canoe racks. PLANNING COMMISSIN UPDATE At their July 1, 1992 Planning Commission meeting the Commisson recommended approval of the non-conforming recreational beachlot for Minnewashata Heights. The Planning Commission recommended 14 boats, to be docked, as requested by the assocation. The Planing Commission felt that even though there were only six boats noted in the 1981 survey 14 boats appeared consistent with the documentation provided by the associaiton. The Planning Commission also approved 2 canoe racks, 1 dock (150 feet in length) and they requested that the swimming beach be marked with bouys if it will enhance the the safety. ATTACHMENTS 1. Beachlot Application 2. Summary of Beachlot Inventory 3. Minnewashta Heights Community Council Minutes NON-CONFORMING RECREATIONAL BEACHLOT PERMIT ASSOCIATION P.C. CITY COUNCIL REQUEST RECOMMEND ACTION Association Minnewashta Heights Lake Minnewashta Number of Homes 74 Size, square feet 7,500 Shoreline 50' Motor Vehicle Access no no Off-Street Parking no no Boat Launch no no Buildings not requested Seasonal Dock 1 1 150' 150' Canoe Racks 2 2 Boats on Land 0 0 Boats at Dock 14 14 Boats Moored not requested Swimming Beach yes Marker Buoys no shall be required if they will enhance the safety Swimming Raft yes Miscellaneous 1 CHANHASSEN PLANNING COMMISSION REGULAR MEETING JULY 1 . 1992 Chairman Batzli called the meeting to order at 7: 30 p .m . . MEMBERS PRESENT: Matt Ledvina , Brian Batzli , Jeff Farmakes , Ladd Conrad - and Steve Emmings . Tim Erhart arrived during discussion of item 3 . MEMBERS ABSENT: Joan Ahrens STAFF PRESENT: Paul Krauss , Planning Director ; Kate Aanenson , Planner II ; and Tom Scott , City Attorney PUBLIC HEARING: BION-CONFORMING USE PERMIT FOR A RECREATIONAL BEACHLOT FOR MINNEWASHTA HEIGHTS HOMEOWNERS ASSOCIATION . Public Present: Name Address Mary Jo Moore 3231 Dartmouth Drive Tom & Ann Merz 3201 Dartmouth Drive Michael G . Plehal 6210 Elm Tree Avenue Tom Huntington 6300 Dogwood Avenue Mary Onken 6221 Greenbriar Avenue Mick Saul/Sharon Carlson 6321 Dogwood Avenue Richard Nelson 6241 Elm Tree Avenue William Finlayson 6320 Fir Tree Avenue Kate Aanenson presented the staff report on this item . Chairman Batzli called the public hearing to order . Batzli : Is the dock encroaching in the dock setback area? Aanenson: No it 's not . It 's at the minimum , 10 feet . Yes . Batzli : Boats then are on the opposite side away from the setback area? Okay . We 're going to open it up to public comment now . Again, if you 'd step up to the microphone and give us your name and address , if you 'd like to address the Planning Commission. Mary Jo Moore: Mary Jo Moore , 3231 Dartmouth Drive . I 've been here a number of times and I guess quite honestly I don't want to be here. I don 't want to be fighting neighbors . The Heights I realize is one of the oldest established neighborhoods with a recreational beach and even though there 's a setback , the docks are set like T 's with lifts and to me , from the lake , it looks like they are encroaching on the property owners . The adjacent property owners . It also, to me appears that they 've expanded substantially in the last . Whoops , I lost it. They've expanded substantially plus they 've added a raft that 's right out from these docks and these boats and to me it 's unsafe . I personally keep quite a distance from it but I don't know if other people coming in would keep a distance . At any rate , I think any expansion is out of the question. This is a very small lakeshore lot and I recommend or I request , my opinion isthatit Planning Commission Meeting July 1 , 1992 - Page 2 should not be expanded beyond '82 and I realize it 's been there for a number of years . One of the first . Thank you . Batzli : Thank you . Now you aren 't at one of the adjacent properties but you do live on the lake? Is that correct? Mary Jo Moore: Yes . I 'm a lakeshore owner . I do have an association on each side of me however . Bill Finlayson: What is her address? Batzli : I 'm sorry , could you give your address again . Mary Jo Moore : 3231 Dartmouth Drive . I 'm in the Shores . Batzli : Thank you . Would anyone else like to address the Commission? Bill Finlayson: I 'm Bill Finlayson. I 'm the Beach Chairman for the Minnewashta Heights Beach Association . I live in Minnewashta Heights . 6320 Fir Tree . I have a number of , well maybe I do. These are documentation of our . Emmings: We have it in our packet . Aanenson: I made copies of it . They have it in their packet . Bill Finlayson: Oh good . Okay , fine . These are documentation of the past years of people who owned boats and people who had boats . . . Minnewashta Heights is an association of approximately 73 homes . The centerpiece of that association is Lot 9 . A well maintained lakefront property where our members can swim and boat and enjoy Lake Minnewashta . We have good relationships with our neighbors and take any concerns that they may have seriously . Over the years we have made boat slips available to our members and we 've always regulated the number of boats that can be put at the dock . We 've always in the past been able to accommodate those members who would like to have boat slips but as of last year all slips have been used and we are currently running a waiting list of one person. In 1981 the Heights had 17 people signed up for boat slips . Today we use the number 14 as our number for what we use . We haven't grown over the years . We 've always been , worked with that number or approximately thereof . And we 've always tried to keep those numbers constant . I don 't understand what Minnewashta Shores is feeling that they are being encroached on their property. Mary Jo Moore: I 'm speaking on my own behalf . Bill Finlayson: I understand. She mentioned a swimming raft. The swimming raft has been there for , I don't know. Probably more than 10 years . It 's always been there as far as I know. It's the same as any swimming raft on Lake Minnewashta . It 's in it 's proper spot anchored to the bottom and it has reflectors all the way around the raft . That 's the same as any swimming raft you 'll find out there . I don 't understand how that ever even came up . I believe that 's all I have right now. Is there any questions that I can answer from you people that you have? Planning Commission Meeting July 1 , 1992 - Page 3 Batzli : Are you requesting room for 14 boats or 17? Bill Finlayson: We are requesting room for 14 boats . In 1981 we had 17 boats signed up . I believe the count was 6 and room for 14 . We 've always used the number 14 pretty much as our number that we work with . Batzli : Did you move in in 1987? Bill Finlayson: I moved in in, let 's see . Approximately 6 years ago . What would that be? Batzli : That was just the first time your name showed up on the list of boats . That 's why I asked . So you weren 't around in '81 but you have bee! there since '87? Bill Finlayson: Yes . Batzli : Okay . So you 're relying on these documents to tell you how many boats there were back then right? Bill Finlayson: Yes . Which is fairly good documentation . Batzli : Okay . Bill Finlayson: Some of those names on the list don 't live there anymore . Are gone now . Batzli : Okay . I 'm sure if we have more questions , we 'll speak up . Would anyone else like to address the Commission? Tom Merz : My name is Tom Merz and I live at 3201 Dartmouth Drive . The purpose of my coming here again is , if everybody truly understands what we did for '81 and how we arrived at that baseline . And as I sat here last week and we talked about Pleasant Acres and we talked about the baseline means the amount of boats in the water . And baseline in 1981 and the purpose of that , to go back . I don't know if anybody wants to go back but there was a lot of reasons why we arrived at the 1981 baseline . If somebody would like me to review that , I can go on . If that's a moot issue , then we don 't need to . Is anyone not familiar with how we arrived at those figures and how it was a compromise with Carver County Parks . It was a compromise with what they called a riparian/non-riparian homeowners . It was a compromise with the outlot owners . I mean are all of you people kind of aware of how that arrived? And even you people are sitting here asking for? Emmings: Maybe we don't . My understanding of why we 're using '81 is that 's the year that we first had a beachlot ordinance so that any beachlot that was established after that date had to be under the ordinance and any other beachlot was grandfathered in at that point . That's what 's been explained to us by staff . Tom Merz : Okay . The reason for this whole thing , and because I 've been involved in . Planning Commission Meeting July 1 , 1992 - Page 4 Emmings: Now when you say the reason for the whole thing . Tom Merz : The reason for the '81 baseline , okay . The reason for the '81 baseline was , at some point we had to arrive at what we called a riparian and non-riparian use of the lake . Riparian being for every 20 acres of lake there is an access for a boat , there 's a non-riparian . And riparian on the homeowners , non-riparian is the non-lakeshore owners . And if you go with DNR rules and regulations , they say that the non-riparian use for a lake such as Minnewashta is 1 boat per 20 acres. Surface acres of lake . There 's 700 acres of lake . There 's 35 boats should be the non-riparian use of that lake . I mean this is part of a ONR document and that 's how they establish access . With that then , all of the people in Minnewashta , so we had Minnewashta Heights and all of the different organizations came up with an agreement . Is let 's try to maintain this use . We had number one was Carver County Parks came in. Carver County Parks came in and they wanted a total of about , they were asking for , let 's say they could have gone up to 60-70 boats . We maintained and agreed that to, if Carver County would restrict themselves to their 15 and 25 , 40 boats , that then we would go back to all of the existing , what we called outlots and we would freeze them at the 1981 baseline . We would then , by that control there was no more access to Lake Minnewashta . So that established it . We had a DNR regulation of somewheres around 40 boats . By the time we had, the park came in at 45 boats and by the time we had the 3 or 4 different acres , we were up to almost 90 boats . So we were 2 times let 's say the DNR regulation for a , what they call a non-riparian use of the lake . And the purpose of this was for all of us , we saw Carver County Park as something that would be our biggest ally or our biggest enemy and how would we control that . Well they agreed to those type of guidelines so long as we would maintain the rest of the lake through no more access to it . Through maintaining what outlots that we had with what we called a grandfather clause . So that 's how we arrived at the 1981 baseline and that was the purpose of this thing . So when we talk about expansions , you wonder why . I mean I have no reason to come here but to say that when we allow last time , we went from the Pleasant Acres . They went from 6 to 10 boats so I say well we go up 40% . Excuse me . My mouth is a little dry. We go up 40% so what happens then is theoretically in my mind we come back to Carver County that all of a sudden is our biggest ally and they're going to say , well you 're increasing all of these outlots . All of this other access to the lake . Therefore we want to take our access and bring it up 40-50% . So we can have another 30-40 boats on there . Well I think that defeats what all of us are here for and that 's my primary purpose is to maintain the quality of the lake we 've got and we 've done that through this 1981 baseline. And as you allow increases to this , you're opening up something that we're all going to . I mean we who have kind of agreed to maintain that lake will find something that in the future we're going to overuse that lake so . That 's my purpose . The second reason, if you ask my opinion on that lot , to drive down that lake and to look at one, what is it , 50 foot? I think it 's 50 foot and you see 14 or 15 boats or 17 , whatever 's on that and you see all of the adjoining homes that have 2 boats , I mean that 's not right . Why should people have to drive on that lake and look at that type of a congestion on an outlot? They have access for maintaining their 1981 baseline through coming the park just like anybody else . I think . Planning Commission Meeting July 1 , 1992 - Page 5 Emmings: How does this help us know what they had in 81? That 's our problem you understand . If we know what they had in 1981 , we 'll leave it there . The problem is documentation of that . Tom Merz : Yeah . So the burden that we agreed last time , the burden of proof . We had documentation that says , I don 't know whether there 's 14 . It there are 14 boats and they 're not asking for an increase , I have no problem with that . If there 's 13 boats and they 're asking , and we have the documentation that says there 's 14 boats, I mean it 's up to other people tc prove . The burden of proof is on them to prove that they have 17 or 18 boats . Whatever they 're asking for . So all I 'm asking you is to maintain - that '81 baseline for those specific reasons. It 's an overall plan of controlling the lake . Anything else? Batzli : Let me ask you one question . Is this baseline agreement with the Park , is it in writing somewhere? Is it , I mean who came up with this? Tom Merz : There 's a guy by the name of Mike Litticoat and through his other people from the Park . I mean I served on when Naegele sold the park to Carver County and then Carver County had , what they tried to do was develop this park . So we had a park development committee for the next 6 , 7 , 8 years . And finally in about 1981 , the agreement was just with, they started out with 15 boats and that little mini and then they asked for an increase . When Naegele sold the property to them , the condition on the property sale was that they would only have 15 boats of 15 horsepower or less access to that lake . Minnewashta , the Park came back . This was about '65 . Maybe in about '75 they said that they wanted to increase this useage and so at that point it was stalled until about 1981 and then it seemed to be an agreement that we would all live by . Well , if you talk to Carver County , that 's an agreement they 're willing to abide by and I think that for the rest of us , once we break those guidelines rules , on what basis car we hold them to their agreement? So the man you would contact is Mike Litticoat . You talk about Carver County Parks , we don 't have any more than an agreement with . We have a conditional use permit with the City of Chanhassen . Carver County and City of Chanhassen have a conditional use permit and in that conditional use permit there 's a total of 35 . 15 and 25 , 40 boats . That 's all they 're allowed to use and they control that through the trailer accesses that they have in the park. Batzli : Who is this Litticome person? Tom Merz: Litticoat is the head of Park and Recreation for this District . I mean for the Carver County. He is the head man for Carver County Parks . Emmings: As part of that effort , were there any surveys done on the lake to see what the , you know how many boats were at what places on the lake and particularly in the beachlots? Tom Merz: I think only it was Chanhassen's , when you , somebody went out and made a count of the boats at that time . I don't think there was anything more sophisticated than that . And it was boats in the water and last time you went with , the way I interpretted what you did last time was you took the 12 boats in the water and you took the 5 boats , or 5 and 5 is 10 . So you gave them a total of 10 boats . - Well , in essence those boats Planning Commission Meeting July 1 , 1992 - Page 6 that weren 't in the water were not part of that '81 baseline . And I don 't know what Minnewashta Heights has here . But that 's what I know . That 's what we fought so hard for and that 's the purpose of this whole thing is to , there 's a purpose of it . There 's a plan and if you check with Carver County and if you check with the City of Chanhassen , they have a conditional use permit or a permit . Whatever it 's called , with Carver County Parks and that spells out the amount of boat access . That spells out that we have closed all other private access . Private or public access to Lake Minnewashta and all of the access comes through the park . Does that make sense? Batzli : No . It 's interesting information that I haven 't heard before . Emmings : Are you aware of these agreements or documents? Krauss: I 've had occasion to work with Mike on a number of , well a number of instances . In fact he 's been down here before you on occasion for park expansion projects . And Mike did explain to me that there is a CUP between the Park Board and the City . It does limit their , there 's 2 boat landings . They 're limited in size and I think they 're also limited to the size of the motors that can be put in on each one . And it was under those guidelines that the City authorized the Park to go forward . I 'm not aware of any recipient agreement that binds the City to anything . It 's a CUP and there may have been some understandings but as Mike explained it to me , it was a CUP for the Park to build their facility . Batzli : Okay . Thank you . Tom Huntington: Hi . I 'm Tom Huntington . The President of the Minnewashta Beach Area . Actually the Association . Just one comment to bring us back on focus that we 're talking Minnewashta Heights here . We 're not talking expansion . We 're talking 14 . Not the 17 that we had documented in 1981 of actual people that were on the lake and had their boats in our area . And I just wanted to be clear and reiterate the fact that it is based on the ruling that the way I understand it , from what I 've read, is that we are to go back on the 1981 number of boat counts that were on the area at that time . And we have documentation to back that up if need be or actually people that we can contact if that has to be done . Any questions? = Conrad: Yeah . Our inventory pretty much tracks those docked when we did it and that 's a point in time . 6 in '81 . 6 in '86 . 7 in '91 . Tom Huntington: Is there something where you? Conrad: . . .saying there were 14 boats . Tom Huntington: Well actually 17 as of 1981 . Conrad: Those were assignments . Were there boats on the water? Tom Huntington: Actually I am newer to the neighborhood . I 've been in the neighborhood for 5 years . I couldn 't actually say myself but what I understand . Planning Commission Meeting July 1 , 1992 - Page 7 Conrad: You see that 's real important for us . We 're trying to be as fair as we can but boats on the water is a really key issue . Bill Finlayson: Yes but your counts are . . .don 't know how many boats were out , at the dock at the time or . Basically what your count . Tom Huntington: If somebody went down today. Bill Finlayson: If you asked the same question , were there actually boats there? Then we 'd have to give you the same answer . We don 't know without . . . Conrad: The only thing I 'm raising is , it 's real consistent , our records . If they weren 't consistent , then I 'd sort of . . . Emmings: I can tell you this . I can see this from my house . This beachlot and there 's no question in my mind that 7 boats for '91 is wrong . That is dead wrong . It 's way short . There were at least twice that many boats there . Tom Huntington: Yeah , so that visual count there was not accurate and I 'v4 been on the lake for 5 years and I know last year . . . Emmings: It 's also very clear . Bill Finlayson: Also , the record keeping gets much better since I took over in 1991 . We had 14 boats . They 're maybe not in all the time . . . Batzli : Is there anybody here tonight who is in the homeowners association or was around back in '81? Tom Merz : I 've been in that area . . .I 've lived there from '70- '75 . In 1981 there were 14 boats there , what does our record say? How many were in the water then? Conrad: 6 boats . Tom Merz: . . .prove , the burden. That 's what we said all . . . The burden of proof has got to be on somebody else . They 've got to come up with the . . . Well prove it . Not us . Conrad: Well Tom , just so you know the Association has given us a listing of individuals who were assigned slip positions throughout for the last 15 years or whatever . Tom Merz : Kind of like the ordinance we had before that said we had access because they were part of the covenants . . . Everybody had access to the beachlot . That was part of the covenants . That was the argument before and we 're giving everybody . . .on this '81 baseline and all we 're doing is destroying it for ourselves . You look at me . I 'm really not the bad guy here and I hope you don't come out , I don't care . I really don 't care but I think the long range plan . . . Planning Commission Meeting July 1 , 1992 - Page 8 Bill Finlayson: It 's important to note that the '81 count that said 6 also mentioned the number 14 . Tom Merz : I 'm asking who mentioned 14? The City? Batzli : Yeah , the City . Tom Merz : The City . . . Batzli : Okay , would anyone else like to address the Commission? Mike Plehal : My name is Mike Plehal and I live in Minnewashta Heights . My address is 6210 Elm Tree Avenue . My wife and I have lived there for about 3 1/2 years . Looked in there . We wanted to be on a lake but are unable to afford it . It 's our first home but the access and the boat slip availability was very appealing to us . So I just want to make sure that before any decisions are made , a number of us came into this area keeping = that in mind and we looked at the home and decided on the home and bid on the home knowing that there were really plenty of boat slips down there . And if there was a year or two waiting period , that that really wouldn 't be a problem . But that 's a very , very appealing thing to us . Particularly that particular area I think is just straight middle class and you go down to the lake and the value is twice probably or more compared to the rest of the houses right within the neighborhood . Emmings: Let me ask you a question Mike . I walked down there tonight on the dock and where I see your assignment is for '92 . Do you know what this map looks like? You 're assigned number 4 . Mike Plehal : Yes . Emmings: Your slip is right next to the main dock on the inside . Mike Plehal : Yes . Emmings: And now there was a boat lift there and no boat when I was there . Mike Plehal : Right . The storm that came through here about 2 weeks ago . we happened to be up north at the time . Broke the boat free from the lift and . Emmings: The lift looked like it was bent out of shape. Mike Plehal : Yeah . It totaled both the lift and the boat . Emmings: And so where 's your boat? Mike Plehal : The boat is totaled. Emmings: Okay , and it 's gone off the lake? Mike Plehal : Yeah . We pulled it off . Planning Commission Meeting July 1 , 1992 - Page 9 Emmings: If the City went down and counted today , they 'd see no boat . They 'd see a spot . There 's a lift . There 's kind of a lift that looks like it 's seen better days sitting in that spot but there wouldn't be a boat bul there 'd be a space . Conrad: I don't have a problem . I think that 's real clear . You see a lift . Emmings : I don 't know if it 's always so clear . And if it was clear in '81 . Conrad: Did they have boat lifts? Emmings: I think so . Mike Plehal : That 's all I have . Emmings : Alright , thank you . Batzli : Would anyone else like to address the Commission? Rich Nelson: Yes , my name is Rich Nelson . I live at 6241 Elm Tree Avenue with my wife Nannette and we like Mike just moved in recently. Much more recently than he did . March of 1992 . And again, I guess our big decision in moving into the area was the access to the lake and when you see on the map that you have there , the boat lift . Or I guess the spot that I 'm assigned , my boat is not down there today . I have a boat . It 's in my garage and I 'm in the process of looking for a boat lift to keep the boat down there safely and securely. I 've been out on the lake here probably 3 or 4 times this season and it 's very enjoyable out there . It 's not crowded . I mean from what I 've seen. Being out there Saturday and Sunday prime time use . There is absolutely no problems with congestion or excess traffic out there . So I just wanted to point that out as well . Batzli : Thank you . Would anyone else like to address the Commission? Mary Onken: Hi . I 'm Mary Onken. I live at 6221 Greenbriar . We moved up here about 7 years ago and I also was very attracted by the lake lot . I have some secretary notes from a long time ago, starting about 1974 and they talk about , about 10 years before your ordinance that talked about hot this space was filling up even then . So I think the 14 boats has been a long standing thing for us . We haven 't expanded. I agree with your need to regulate the lake . In the little time that we 've been here , about the last 7 years , I 've seen changes . There 's quite a bit of building around the lake and I can see where these homeowners associations can put an awful lot of access to the lake . I think the park is a very fair way to regulate the number of people coming in . I think we pretty well all agree in the Minnewashta Heights group that we just want to maintain our status quo . What we have . We 're not looking for expansion . We want to be good neighbors . We want to see the lake regulated in a way that will keep it ir- very good shape . Shifting to another subject a little bit . I know it isn 't the object of tonight 's deal but I 've. seen a difference in the water quality . My nephew also did some studies when he went to college to look into the different ways to save lakes . I wonder if the commission would Planning Commission Meeting July 1 , 1992 - Page 10 also , or whether your Planning Commission would look into ways that the sewer water and the waste water or storm sewer water could be cleaned up before it comes into the lake . Right now I think it just pretty much goes right in . Batzli : We are actually in the process of , we have a task force , the Surface Water Quality Task Force . Right now I think they 're devoting a substantial amount of time to plotting the lakes that we have and the quality and trying to put some projects togethers . If you do want to follow up on that , I encourage you to talk to Paul in our Planning Department . It's been a very active group and we 're moving ahead and I think we 're actually leading a lot of the communities in the State as far as putting something like this together and getting going on it . Mary Onken: I think that 's great . So I think we support your , what you 're trying to do and we don't want to expand. We want to stay where we are . Thank you . Conrad: What do you have in your book on 1981? Anything that we should know that we don't know? Mary Onken: Oh I don 't know . I was reading this and I had to guess what years you would be focusing on initially . So I think even back , I think it was in '74 they talked about 14 boat slips . Space for 14 boats . Conrad: Anything that you could show in there that says that can give us more information on actual use? Emmings: In '81 . Conrad: Be real persuasive . Mary Onken: I 'm sorry , but I don't have that . I think looking at the number of boats that are in the slips is kind of akin to looking at my garage and my driveway and trying to figure out how many cars I have . On any given day maybe 4 of us will be done and there won 't be any cars at home . And on another day , the whole works might be there so counting the number of boats at a particular time I think is kind of a strange way to arrive at how many boats were there . • Farmakes: Do you pay for your assignment? Mary Onken: Sorry . Farmakes: Do you pay the Association for your assignment? Mary Onken: For my boat slip? Yes , we started voluntarily additional assessments for the boat slips and we have a dues for the association of which most of that association dues goes for insurance . Farmakes: Do you keep records of those payments? Bill Finlayson: Yes . For 3 years now we 've collected for boat slips . Planning Commission Meeting July 1 , 1992 - Page 11 Farmakes: Okay , but not for '81? Bill Finlayson: No . But we have a Treasurer who would keep track of that Batzli : Thank you for your comments . Anyone else like to address the Commission? Is there a motion to close the public hearing? Emmings moved. Conrad seconded to close the public hearing. All voted in favor and the motion carried. The public hearing was closed . Batzli : Ladd , why don 't we start at your end . Conrad: Are the neighbors to this beachlot , are they part of the Association? Bill Finlayson: All lakeshore people are part of it . Conrad: They are? Anybody here? Bill Finlayson: Do you have a map on this? Those homes are . Conrad: Anybody here that lives next door? We haven 't heard any problems with the swimming beach? The issue goes back . I think everything that I see is fine except for the number of boats and I guess I still haven't bees persuaded . I ' ll wait for maybe some other input from the Planning Commissioners . It 's a mighty small lot and it's just a mighty small lot . I think it is a little bit at risk in terms of safety but if we haven 't heard any problems . The neighbors aren't complaining , then I 'm fine with that at this point . I think the staff has recommended marker buoys and I think that has to be done . The only other issue other than , in terms of what the association is requesting , is boats . And I guess I 'm still not , : haven 't been moved from the 6 in the inventory but maybe somebody on the commissioner can sell me . I think the other ones , what we 're trying to do is be real fair in terms of the beachlots that are coming in . Trying to somehow make some sense out of what we 're doing and the last thing we want to do is really take away some rights that you 've got . We hate that . We 're not comfortable . Yet on the other hand , as you 've heard Tom Merz talk about the other thing we 're trying to do is merge the needs of the lake . Not necessarily the riparian owners but the needs of the lake and the safety issues and there are a number of boats that can be on the lake without making it a hazard . And that 's really true . It is 20 acres per boat . Minnewashta probably has more boats allocated to it than are safe conditions . Part of that is the problem of the park. But it 's also a problem of beachlots too . . .and also a problem with homeowners. But anyway , that 's right now, I think everything 's okay other than the number of boats . I guess somebody has to , I haven't seen anything to move me . I think if the homeowners showed me a picture or somebody showed me something in 1981 . I think I could . Obviously the dock can take 14 boats . It's built to fit but I haven 't seen the use yet that can sway me . Batzli : So you would recommend 6? Conrad: Right now that 's what I 'm thinking until I hear the rest of you . 601 .-- * .:. 0 i � // rli /,� rli NOTICE OF PUBLIC HEARING i ", , sCill +Noir ill. di ". mOr, 7 t-F^ is i►- l, z 1011111 '711" ,,,, PLANNING COMMISSION MEETING frPW �6‘11i •' maft .- _ __lt ..� Wednesday, August 5, 1992 - 7.30 P.M. _ � iimio, Wednesday,City Hall Council Chambers _____„r= — 690 Coulter Drive Project: Portable Chemical Toilet on Recreational Beachlot li(r 0? :, ._ Li (/Applicant: Minnewashta Heights `lHomeowners Association _ , 7// f_,, LAKE Location: North Side of Lake Minnewashta M / N N E W A S HTA a Notice: You are invited to attend a public hearing about a development proposed in your area. Minnewashta Heights Homeowners Association for a portable toile on a recreational beachlot. What Happens at the Meeting: The purpose of this public hearing is to inform = you about the applicant's request and to obtain input from the neighborhood about this project. During the meeting, the Planning Commission Chair will lead the public hearing through the following steps: 1. Staff will give an over view of the proposed project. 2. The Developer will present plans on the project. 3. Comments are received from the public. 4. Public hearing is closed and the Commission discusses project. The Commission will then make a recommendation to the City Council. Questions or Comments: If you want to see the plans before the meeting, please stop by City Hall during office hours, 8:00 a.m. to 4:30 p.m., Monday through Friday. If you wish to talk to someone about this project, please contact Sharmin Al-Jaff at 937-1900. If you choose to submit written comments, it is helpful to have one copy to the Planning Department in advance of the meeting. Staff will provide copies to the Commission. Notice of this public hearing has been published in the Chanhassen Villager on July 23, 1992. •�h_= . ''fit K"..FY.:'.: �.. -.ti. ^.,.:)' _ - ss.•.:;..'`-> - - _ - — - -.4 - ------ - GARY PETERSON JAMES MOORE SAMUEL POTTS _ i 1769 20TH AVE NW 3630 HICKORY 3628 HICKORY r NEW BRIGHTON MN 55112 EXCELSIOR MN 55331 EXCELSIOR MN 55331 t - ' - - --- - - • - ERIC BAUER STEVEN KEUSEMAN k KATHLEEN LOCKHART 3624 RED CEDAR POINT 3622 RED CEDAR POINT 8549 IRWIN ROAD - EXCELSIOR MN 55331 EXCELSIOR MN 55331 MINNEAPOLIS MN 55437 EDWIN SEIM RICHARD SCHLENER THADDEUS SCHWABA 292 CHARLES DRIVE 200 COMMERCE CIR S 3603 RED CEDAR POINT _ SAN LUIS OBISPO CA MINNEAPOLIS MN 55432 EXCELSIOR MN 55331 93401 h J D KNIGHT 1 WYNN BINGER t PAUL LARSON ' 485 PILLSBURY BLDG ! 2950 DEAN PKWY #1503 3609 RED CEDAR POINT 608 2ND AVE S MINNEAPOLIS MN 55416 EXCELSIOR MN 55331 MINNEAPOLIS MN 55402 LUMIR PROSHEK EMIL SOUBA i BIRATA DUNDURS - 5704 DEWEY HILL DR 14025 VALE COURT , 3627 RED CEDAR POINT EDINA MN 55435 EDEN PRAIRIE MN 55344 ' EXCELSIOR MN 55331 ' LINDA JOHNSON . CHARLES ANDING • HELEN ANDING - 3629 RED CEDAR POINT , 3631 SOUTH CEDAR 1708 E 57TH STREET EXCELSIOR MN 55331 EXCELSIOR MN 55331 MINNEAPOLIS MN 55417 ) -) • CHESTER LOBITZ , LARRY VANDERLINDE c NICHOLAS HAWLEY • 3637 SOUTH CEDAR ` 211 CHESTNUT 1920 S 1ST ST #1004 - EXCELSIOR MN 55331 CHASKA MN 55318 MPLS MN 55454 i - <F - - - -- - � ANDREW JENSEN DAVID HEMPLE . FRANK BOYCE • BOX 277 3707 SOUTH CEDAR j 3711 SOUTH CEDAR EXCELSIOR MN 55331 EXCELSIOR MN 55331 EXCELSIOR MN 55331 —s . ) CLIFFORD PEDERSEN ! RICHARD ANDING BASIL BASTAIN - 3713 S O U T H C E D A R 3715 SOUTH CEDAR 3719 SOUTH CEDAR EXCELSIOR MN 55331 EXCELSIOR MN 55331 EXCELSIOR MN 55331 i . _. f i CURRENT RESIDENT KENNETH SMITH ROBERT C OSBORNE - 3725 SOUTH CEDAR 3837 RED CEDAR POINT 3815 RED CEDAR POINT ` EXCELSIOR MN 55331 EXCELSIOR MN 55331 EXCELSIOR MN 55331 - y tita : Ate' � ,17-''.Y... _ �:c•a4' .;..i r`�r }_'.. 't.4W�21 '�CL'� - + "K ,T'Y„ -',. M POSTHUMUS & E TUSSEY ! JOHN MCKELLIP 1 CURRENT RESIDENT t 3421 SHORE DRIVE 3431 SHORE DIVE i 3441 SHORE DRIVE . EXCELSIOR MN 55331 , EXCELSIOR MN 55331 EXCELSIOR MN 55331 • MORRIS MULLIN RED CEDAR COVE INC WENDELL SCHOTT 3451 SHORE DRIVE C/O D C PRILLMAN 7034 RED CEDAR COVE EXCELSIOR MN 55331 7064 RED CEDAR COVE EXCELSIOR MN 55331 EXCELSIOR MN 55331 4 AURETHA SMITH RALPH KARCZEWSKI - 7044 RED CEDAR COVE , CURRENT RESIDENT ` 7054 RED CEDAR COVE EXCELSIOR MN 55331 7048 RED CEDAR COVE EXCELSIOR MN 55331 EXCELSIOR MN 55331 i ` : WARREN RIETZ DAVID PRILLAMAN BERNARD GAYTKO 7058 RED CEDAR COVE 7064 RED CEDAR COVE ! 7068 RED CEDAR COVE _ EXCELSIOR MN 55331 EXCELSIOR MN 55331 EXCELSIOR MN 55331 r rt KENNETH WELLENS NELSON ANDRUS STEVEN EMMINGS 7074 RED CEDAR COVE i 7078 RED CEDAR COVE 6350 GREENBRIAR '_ EXCELSIOR MN 55331 ' EXCELSIOR MN 55331 EXCELSIOR MN 55331 • - < - RICHARD HANSONROBERT HEBEISEN RICHARD ZWEIG 6400 GREENBRIAR ' 3607 IRONWOOD ROAD 3601 IRONWOOD ROAD EXCELSIOR MN 55331 EXCELSIOR MN 55331 EXCELSIOR MN 55331 - -' . - -<. CURRENT RESIDENT FRANCIS FABER RICHARD WING 6331 CYPRESS DRIVE i 3471 SHORE DRIVE 3481 SHORE DRIVE EXCELSIOR MN 55331 EXCELSIOR MN 55331 1 EXCELSIOR MN 55331 t - - < WILLIAM TURNER CHARLES ERICKSON ' THOMAS WRIGHT _ 3501 SHORE DRIVE 3621 IRONWOOD ROAD ' 3611 IRONWOOD ROAD EXCELSIOR MN 55331 EXCELSIOR MN 55331 ; EXCELSIOR MN 55331 MICHAEL MORGAN L 0 PARSONS CURRENT RESIDENT 3734 HICKORY 3732 HICKORY ' 3724 HICKORY - EXCELSIOR MN 55331 EXCELSIOR MN 55331 EXCELSIOR MN 55331 )- -' ' , - MARVIN YORK ALFRED SMITH [ GREGORY BOHER 3716 HICKORY 3714 HICKORY 3706 HICKORY I EXCELSIOR MN 55331 '1 EXCELSIOR MN 55331I EXCELSIOR MN 55331 4~ °'1xi-__,_. 'i.,„,:.....t-z;,-..4-1;,_:--7-e_.., `� -.--P L... 'y� ` ,, r+ . a t,,w,� �'?t_2. ',-k,7-.-‘1" t I. c — — 1 ESTATE OF AHRENS MINNEWASHTA HOA HERBERT PFEFFER t RT 1 BOX 284 C/O LOIS GOEDE 1 2850 TANAGERS t BROWERVILLE MN 56438 f 2851 TANAGERS EXCELSIOR MN 55331 EXCELSIOR MN 55331 1 PER & E JACOBSON E GENE FURY STEPHEN ORTLIP 2840 TANAGERS I 2821 WASHTA BAY ROAD 14880 30TH ST SW EXCELSIOR MN 55331 I EXCELSIOR MN 55331 WATERTOWN MN 55388 HARRY NIEMELA i DONALD ANDERSON i WAYNE HOLZER 2841 WASHTA BAY ROAD 2851 WASHTA BAY ROAD 2911 WASHTA BAY ROAD EXCELSIOR MN 55331 • EXCELSIOR MN 55331 `. EXCELSIOR MN 55331 ,, - - – — -. NORMAN CASPERSON ALLAN TOLLEFSON GLENN COPPERSMITH 2921 WASHTA BAY ROAD ' 2931 WASHTA BAY ROAD 2941 WASHTA BAY ROAD EXCELSIOR MN 55331 EXCELSIOR MN 55331 j EXCELSIOR MN 55331 JOSEPH BOYER CURRENT RESIDENT SUSAN FIEDLER 3630 VIRGINIA AVE 3111 DARTMOUTH DR 3121 DARTMOUTH DR WAYZATA MN 55391 ` EXCELSIOR MN 55331 EXCELSIOR MN 55331 THOMAS MERZ JAMES GINTHER ' STEPHEN MARTIN 3201 DARTMOUTH DR 3131 DARTMOUTH DR 3211 DARTMOUTH DR EXCELSIOR MN 55331 t EXCELSIOR MN 55331 ( EXCELSIOR MN 55331 RAYMOND ROETTGER M MOORE/K HALL I WARREN HANSON 3221 DARTMOUTH DR 3231 DARTMOUTH DR 3241 DARTMOUTH DR EXCELSIOR MN 55331 EXCELSIOR MN 55331 EXCELSIOR MN 55331 CURRENT RESIDENT WILLIAM NAEGELE CURRENT RESIDENT 6341 CYPRESS DR 4300 BAKER ROAD 3311 SHORE DRIVE EXCELSIOR MN 55331 MINNTETONKA MN 55343 EXCELSIOR MN 55331 BARBARA WINT'HEISER 1 FLORENCE BISCHOFF WILLIAM MCDANIEL 3321 SHORE DRIVE 3331 SHORE DRIVE 3341 SHORE DRIVE EXCELSIOR MN 55331 EXCELSIOR MN 55331 EXCELSIOR MN 55331 F DENTON WHITE HENRY ARNESON LAWRENCE SHINNICK 3351 SHORE DRIVE 3401 SHORE DRIVE r 3411 SHORE DRIVE EXCELSIOR MN 55331 EXCELSIOR MN 55331 EXCELSIOR MN 55331 Li....., __._._„______.„..iiimiiiiiaitiliarialimiiikrialialialaillialliik- - . - Ll_r:::'' ---. , - ,$tivAt .,..- - --:, --- - i . 1 WALTER SCHWATZ JEROME AHLMAN JOEL ANDERSON - 3888 FOREST RIDGE CIR 3896 LONE CEDAR : 3894 LONE CEDAR CHAKSA MN 55318 CHAKSA MN 55318 CHASKA MN 55318 JOHN PETERJOHN DANIEL HERBST TERRANCE JOHNSON - 3892 LONE CEDAR 3890 LONE CEDAR 3898 LONE CEDAR CHASKA MN 55318 CHASKA MN 55318 CHASKA MN 55318 1 • EDWARD OATHOUT GEOFFREY SCHIEFELBEIN STATE/MINNESOTA IN TRUST 3940 HAWTHORNE CIR 3920 HAWTHORNE CIR C/O CARVER CO AUDITOR EXCELSIOR MN 55331 , EXCELSIOR MN 55331 600 EAST 4TH STREET CHASKA MN 55318 < - - --JOHN MERZ/DAVID TESTER 3897 LONE CEDAR ALL SECTION LAND CHASKA MN 55318 • f i . i _ I i I L. . f 1 NOTICE OF PUBLIC HEARING PROPOSED CONDITIONAL USE PERMIT CITY OF CHANHASSEN _. NOTICE IS HEREBY GIVEN that the Chanhassen Planning Commission will hold a public hearing on Wednesday, August 5, 1992, at 7:30 p.m. in the Council Chambers in — Chanhassen City Hall, 690 Coulter Drive. The purpose of this hearing is to consider the application of the Minnewashta Heights Homeowners Association for a conditional use permit to install a portable chemical toilet on an existing non-conforming "beachlot", located on Shores Drive on Lake Minnewashta. A plan showing the location of the proposal is available for public review at City Hall — during regular business hours. All interested persons are invited to attend this public hearing and express their opinions with respect to this proposal. Sharmin Al-Jaff, Planner I — Phone: 937-1900 (Publish in the Chanhassen Villager on July 23, 1992) — CITY OF CHAIIHASSEN - 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937-1900 • FAX (612) 937-5739 MEMORANDUM TO: Planning Commission _ FROM: Kate Aanenson, Senior Planner DATE: July 29, 1992 SUBJ: Lake View Hills Apartments Non-Conforming Recreational Beachlot BACKGROUND The Lake View Hills Apartments were built in the mid-1960's. There are 170 apartments on approximately 170 acres. There is 120 feet of shoreline which has an area of approximately 3,000 square feet. Staff did not inventory this beachlot in 1981 when other pre-existing beachlots were surveyed. Thus we can only confirm what was present in 1991. The applicants have supplied documentation as to the level of use they state existed in 1981. Staff has also recalculated the size and area of this beachlot. The beachlot does not meet the size (30,000 square feet) or the frontage requirements (200 feet) of City Code. The Association is requesting the continued use of one dock that is 30 feet in length. The association is also requesting approval of 7 boats, parking for 10 vehicles, and continued use of the boat launch. Staff has some concerns with the boat launch because it is basically unrestricted. The launch has limited parking, and when those spaces are full, people park on the street in front of this association's beachlot. Public Safety has received complaints regarding parking along Lake Riley Boulevard in this area. Staff would recommend that this beachlot have better control measures for a couple of reasons. The beachlot is unsecured, and with the distance from the apartments, anyone could launch a boat without being observed. There has also been numerous complaints about noise and parties at the beachlot. There should be a milfoil sign posted. Because the site was not inventoried in 1981, staff has limited information as to the level of use in 1981. The association is not requesting that any boats be moored or docked. Is t«, PRINTED ON RECYCLED PAPER Lake View Hills Apartments Beachlot July 29, 1992 Page 2 SUMMARY The Association is requesting the use of the boat launch, a 30-foot dock, 7 boats to be stored on land, and parking for 10 vehicles. Staff would recommend that a milfoil sign be installed on the beach lot and at the boat launch, and buoys be placed around the swimming beach. _ NON-CONFORMING RECREATIONAL BEACHLOT PERMIT ASSOCIATION P.C. CITY COUNCIL REQUEST RECOMMEND ACTION Association Lake View Apartments Lake Riley Number of Homes 170 Apartments Size, square feet 3,000 sq. ft. Shoreline 120 feet Motor Vehicle Access yes Off-Street Parking 10 Boat Launch yes Buildings not requested Picnic Tables not requested Grills/Campfires not requested Seasonal Dock 1 Diagram 30 feet Canoe Racks not requested Boats on Land 7 Boats at Dock not requested Boats Moored not requested Swimming Beach yes _ Marker Buoys Swimming Raft not requested Miscellaneous * Items requested by the Association for determination. RECREATIONAL BEACHLOT INVENTORY 1981 1986 1991 Lake View Apartments 170 apartments Lake Riley _ - 1. 8 acres 80 ' of shoreline Motor Vehicle Access yes Off-Street Parking yes Boat Launch no Permanent Buildings no Setbacks no Temporary Buildings no Portable Restroom no Picnic Tables no Grills/Campfires 1 campfire Seasonal Docks 1 Approximate Length 30 ' Canoe Racks no Boats on Land 6 canoes 2 sailboats 1 fishing boat Boats Moored no Boats Docked no Swimming Beach no Marker Bouys no Swimming Raft no Comments: C 6..`AtiYi j LAR 31 1992 Cf Y Lir Lhk _ CITY OF CHANHASSEN 690 COULTER DRIVE CHANHASSEN, MN 55317 NON-CONFORMING RECREATIONAL BEACHLOT APPLICATION HOMEOWNERS ASSOCIATION: ,,r .7(/ CONTACT PERSON: ADDRESS: GO lL j " � 5 �,�i� TELEPHONEDa 9 S/-y S . T TELEPHONE (Day time) � TELEPHONE (Evening) : / S° Please provide all requested data consistent with what existed in the summer of 1981. 1. Number of homes in the Homeowners Association `70 Z3L,.c.,r 2 . Length of shoreland (feet) /JO 3 . Total area of Beachlot (in square feet) . 4 . Number of docks 6. Length of dock(s) 7 . Number of boats docked-0 8 . Number of canoe racks 9 . Number of boats stored on canoe racks — o -- 10. 10. Number of boats moored, i.e. canoes, paddle boats, sailboats. — c — ll. - c -11. Number of boats on land 7 12. Swimming beach Yes X No Buoys Yes No — 13 . Swimming Raft Yes 1No X / 14 . Boat Launch Yes A( No 15. Motor vehicle access Yes X No Number of parking spaces i0 16. Structures,�yincluding portable chemical toilets: //1z„.4 r - i I , L�..„ ^ , __ ST ,,,,,,,A 1 iii _L °w- . %-ii)g— IT lI ....44„,,,,, • gir s 5 j - 7116____Riv) LA ,Ali, 1-% RR S 7.4 r �� :::::rtrts.:41:: i. . YENNE E`SA��APy___, _--__..___--------wa id DRIVE f HIGHWAY LIl �`0 a ea - R I///'� Pi co . : ©m4' 7t . w to z ¢' w—e�oo SUS • '�' -;1P1/4- Ii S , PARK ,—. at 4,m0 ' Q `�0� a� S. `�ail% ice`AI 4.OA - X s �� - „, �� ,FR/CE Z 8200 1,�/� = . _"" `r 'VI* 0 , ' MARSH , o L AK w SINNENV.: . ,_. , s CIRCLE PARK - --\\83 c 443r LAKE SUSAN 1 - i 0) s�R/CE M RSHLAK.� " � • ° ' 04 I pid � , 1 g� __ i' \` ' i 6TH •i , 0( Li_ 0 1 41I t` 1 ---�_ 212 - VP . 11Ps • % VAalima ' ' PR _ _ -- Eo & dilIMMI2 el.Ti 4;1 40741g -•010 _ ___ LaltevlerV j ��,1 • N., I uPON? 8 0 -y •uLE ..R0 , 8 ) I 1 I —b) s ,E VA R C'f—-- .� ' 7 - a a. 2 Beach • 5)/ , Hi � � ;�� 1 BAND/MERE ` , �� HEIGHTS PARK 1( , BAND/MERE , lea- `i' 92 0 C I/ILAKE COMMUNITY pir -1! PARK , R/LEY Itz, ( 4,40 MINS_ H JUL-16-92 THU 9 :48 CARVER COUNTY SHERIFF 3681538 P. 02 1 1 i_ •• • c • . i O Z •.t • t W to ar' i K0 t1 u w a -,; O s W N tY �)r a O O z_1 r OC l i O D K Q •= W w n N 43 a•> 4 q w t O 0 u w r } • 4 4 4•.. ur ..1 et - W • ..f oftj Uw tri U. t - W N J2 I W4 ee ZU' pC .. _). WO .J,uu 1 mn a x� 4 mor s 'll T W a •0 W �_ ` 10.10 ..d Nt ►WY µ 4H •4� W� w•2'. •• WO ~ d d? 47 4< ad O m y t - 41-4 • • O _, \W N.T. N JW 04 JY JO WY I .J2 i-1 DH JN ❑w J •-•w t � .-.O 1TI- a 4: O ? 0 N A x } ‘ } a0 Z r+ K N o a 4 N =Q h N w. AN W O 0N. Y NN W> 4N J4 Jam 4 aoO0 .«w•.• a1> w4 . h0• co-) ND• '. '-'w w� 00 00. - WM 000 0.• >.-. 0.4 >N Dau NW D > >.r 0.4 N 0.0 • >w d- - '-oN wQ 04 Ww OOI►OU' OO WI- Ow ON ON WU' \1/100 S\ )CN O\ YW 0\000 p\ Yft O\ ON 0\ xa ow 0 N0 an N.O•-•44 N01-.04 N45. 44 N.0 . 00 N.0 44 002J O` 0 JN 0,.01tJ1- O.PiJ a00 -041. 0.O • ZO. 0.0 •• J.. 1 0O O D O O W O !U, W W W W tf% ektY etc Ime i!K laY iite 0. Ia. 0 0 0 0 0 .1= .. .. M S .. H .. •. N * •. a- •. I- •. I= .. t4'W N I ZW4, N Z W W N 2 W N z W N Y W N Z W tWh In W(=N Y WW Y Wt . N X W4 Y WW Y WW le it W4 K CO 2 a 0 * 4 1 0a * ac O cc 0 OC 0 NW W .. •_.W we CZ 1 ....W 14 . 4Z •AW . t NW n4 MW 4. CZ .4 UJ < t.)0. LL V W U1- 5)Z ' 01- t U} UL UI- VW U1.- UZ 01-' VX 24 4 0 W , Z 414 0 W Z4 OW Z 4 0w 24 OW 24 Ow Z< Ow ._ uf.!1"1 JK .-.Oto JK r.D JK MO JK . 0 _le .- o JOC ►••0 J< i ... - !'! :• a_•1: :- _ . - s 1'1 •- -a, --- 3 FITT: - 21j..--a ",•.� 1. ., -1, 2. a - _ _ I — - - - - R ..�R R , .. 7 I� .. lli�..-..J S ., 4/4 ;; .-- -�--- :i 0317A,3U rwe'zd•OHlntra M 3-27-92 I have lived at Lakeview Hills for over 16 years. There was a dock in 1981 and there has been a dock there since the _ day I moved in. Included is a photo of the dock in 1977. 11Qasi. send photo back. Sincerely�, Qamitzlik/M _ Leo Ganglehoff gi .... .4, - _ .1 ... .- • ,,,. .4 .,. „.....s. ...,_~, _ , ,.. —_ 1 \ N - �. \t ^ t • to . . -. kr--i..- .S • , _ s.Y' .. # `r " �r ' \ C ITY 3 F PC DATE: Aug. 5, 1992 C Ii A N H A S S E N CC DATE: Aug. 24, 1992 CASE #: 92-8 WAP B : Aanenson:v STAFF REPORT PROPOSAL: Wetland Alteration Permit to Fill within 200 feet of a Class A Wetland z LOCATION: 7201 Juniper Avenue Z APPLICANT: Greg Dattilo 7201 Juniper Avenue - Excelsior, MN 55331 a- PRESENT ZONING: RSF Residential Single Family ACREAGE 999 cubic yards of fill DENSITY: ADJACENT ZONING AND LAND USE: N -RSF Residential Single Family S - RSF Residential Single Family Q E - RSF Residential Single Family W- RSF Residential Single Family WATER AND SEWER: Available to the sites W F" PHYSICAL CHARACTER.: The site is a vacant lot that slightly slopes towards the west. 2000 LAND USE PLAN: Residential Single Family Datillo WAP July 28, 1992 Page 2 BACKGROUND Staff observed fill material being deposited on the vacant property owned by Mr. Dattilo, and he was informed to cease the filling operation. Mr. Datillo approached the city about obtaining a grading permit, and at that time staff determined that a wetland alteration permit was also necessary. PROPOSAL Mr. Greg Datillo is proposing to place approximately 990 cubic yards of fill into a vacant lot. The purpose of this request is to develop a neighborhood park. This fill would cover an area approximately 100 x 180 feet and vary in depth. This area would be seeded and used as a playfield area. There is a Class A Wetland approximately 60 feet away. No activity is proposed within the wetland, and therefore there is no mitigation requirement. The applicant will also be securing a grading permit from the City. This wetland was inspected in June as a part of the City's Storm Water Management Plan. It was noted that the contour at the edge of the wetland is 946.0. This wetland is classified as an AgfUrban Wetland under the draft wetlands ordinance. Thus it is representative of a poor quality wetland. It was noted that there was a significant amount of branches and yard debris deposited on the south side, as well as old appliances and tires on the wetland edge. The survey also indicated that this wetland drains to Lake Minnewashta. The wetland is 95 percent open water and has a dominant species of Duckweed. The fill, as proposed by Mr Dattilo, would level the vacant property. This area would then be seeded for a grass play area. Staff would recommend that a swale be created along the southwestern portion of the fill area to maintain the neighborhood drainage which eventually flows into the wetland. Staff would also recommend that seeding take place immediately upon completion of grading and Type I erosion control be placed around the entire site. SUMMARY The applicant is requesting to fill approximately 990 cubic yards within 200 feet of a Class A Wetland. The proposed fill will be 60 feet from the edge of the Class A Wetland. There will not be any activity within the wetland boundaries. STAFF RECOMMENDATION Staff recommends the Planning Commission adopt the following motion: "The Planning Commission approve Wetland Alteration Permit #92-8 as shown on the plans dated July 1, 1992, with the following conditions: Datillo WAP July 28, 1992 Page 3 1. A grading permit shall be obtained from the City of Chanhassen. 2. Type I erosion control shall be installed between the existing wetland area and the entire fill area, and shall be removed once the vegetation has been re-established. 3. A swale shall be created between the area of fill and the wetland edge at approximately - the 960.0 contour to maintain the existing neighborhood drainage pattern. Staff shall inspect the final grade prior to seeding. 4. Clean-up debris. ATTACHMENTS 1. Plans dated July 1, 1992. 2. Wetland Observation Record dated June 9, 1992. . 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';,.TL` _ �� Ai, i ` ` A - Ae ,,It mss! cC� City of Chanhassen ' " T Wetland Observation Records (0,/,-)i '1 / Wetland No.: 7 (Field Review):Ab- Z C? ) (Official Map) i1a Location I I b til T; z. 1/JR; ' Section On USGS NWI: ✓ Y N - � Observer Initials: EY-- Date Visited: c, / Q / 9Z e4( )_t' Picture Number(s)/Roll #:,11 I Er or Picture Nos.: I ( ) v • Classification - Wetland Type: pi,�,F (Cowardin); (Circular 39) Wetland Location: Lakeside Streamside Headwaters ✓ Isolated (upland) Edge of Wetland Contour .o ;varies City Class: (P)ristine ; (N)atural ; (A)g,/Urban ✓ ; (U)tilized Watershed Characteristics Wetland Size: acres Direct drainage area: acres Total drainage area: acres Open water area: acres Vegetation Dominant Plant Species: Reed canary grass hl Cattail — lel' C iJG.J�. • _____ �''.. i/; •�E lir. Purple Loosestrife: (D)ominant; (A)bundant; (S)ome;(I)ndividuals; (N)one Plant Diversity: No. Species Dominant 1; 2; 3-5; 7 — Percent open water: °►5�i� E 2,100,000 • E 2,099.SOC • 0.• it e1E 2.099.000 • l.' '^ ht` =i`!.y+';'Si. _ _` __ Y�„—..- -y - • k. • r 4. > • "A - ,.• 6,-'c _-i, i 1� J. - ....•- -'3!-1,.;-,..: s _ .i ' ;r4 s •�f - •` ?^+tom -4.--,!..7.-...'4' .� i:b2! ,4 , i• •p• ...---:-.. -;i.-...A.__ -_,-....-v,--v-r,..-c.-:,.,ft..,---...: ei:,.... .---. -.--...., -,...-„, . . _ ... _ ., - •c,e , t <_ Z .� i7R-,v 'Y .5 '' .-tve '�!• •: .--,- -• •4• _ 'f....� +�s" y'c-. ". '.,. vim "4 - it +'3F - --'4.;‘. jpa- S.Y S . r '4R #t A ^r I: *t� f"�.. X-.1 4•• ;-i.4,--,' ,.:-.,. z • • ' t' _<4- i•y 4.N .x'tP _sT_I�• = d-,z.. }Q.,V SQA, ..- tai. • -- -,I . se #R* FS -! ` r '`MiF lr # �tia.. s-� " ti • a .e '' `' . ' �� • ;S. ter � Rsls' _ S �,i .•`♦- 4.,,,,.. 'Ilr.--, . _ __,' ______41k,. 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'kT .1R = a • h_ ••-s ��CCC.. `:+t " '/�Q.v�" ►! -..t.7•:.,51 �'I1,��* ?' ;. jj� .. 4�i *� A �v� r "s rod s. .� }' inc.,- ,.. _ // .- �-' r ~+ ter' ' Art.. _ r _ •3 33 z 4F-N' ft .., __it. 1 ' !y S _ / _ / tib• • - a A • • �� L �Yf•/r ri '•r ,.• is^/ a Ti• _•Y_ ,L', - --a' s`•.-] .. r . • �a �1•�' y . �'. Sic - .` 'r C ` ,4 '7VW 1.77 ‘.10 •r• _ ' s"` .,ct.4-.c,. -,! - ;; •- �r` T i'lI/ - 1 "- //+ tf - ± >.I - .,. .-fm,. � yin - -fi ... .A • . -J ' ♦ f y �_4ti 4./^ - . _ •4• vi"s•rte#+'• .' r 4�"'..,. ..4_,..--),,-...-**-P0,11-1"....r .,1 •_:.4/. -11---..•-•-•-- }r T C I T Y 0 F PC DATE: Aug 5, 1992 Cfl A N IIA S S E N CC DATE: Aug 24, 1992 CASE #: 92-10, WAP •ns•n:v STAFF REPORT PROPOSAL: Wetland Alteration Permit for a Right Turn Lane Adjacent to a Wetland zLOCATION: Entrance to Colonial Grove Subdivision, Cheyenne Trail and Hwy 101 Z _ Q V APPLICANT: City of Chanhassen/MnDOT 690 Coulter Drive - a Chanhassen, MN 55317 Q PRESENT ZONING: RSF, Residential Single Family ACREAGE: Additional turn lane 2,440 square feet DENSITY: ADJACENT ZONING AND LAND USE: N - RSF; Residential Single Family S - RSF; Residential Single Family Q E - City Of Eden Prairie, Single Family W -RSF; Residential Single Family _ Loa WATER AND SEWER: Not applicable [12 PHYSICAL CHARACTER.: The site is a road ditch adjacent to a wetland. This wetland has an Ag/Urban classification under the city proposed wetland (l) classification. 2000 LAND USE PLAN: Single Family Residential Cheyenne WAP July 28, 1992 Page 2 — PROPOSAL The City is working with MnDOT to create a right turn lane into the Colonial Grove Subdivision. The purpose of this project is to improve safety along Hwy 101, and is similar to improvements made last year to Sandy Hook Road and Choctaw Circle on Hwy 101. The proposed turn lane on Cheyenne Trail would require filling the existing ditch along TH 101, approximately 2,440 square feet adjacent to a wetland, and installation of a storm sewer. This lane would be approximately 200 feet in length and 12 feet in width, and then tapers 150 feet back to meet the existing road surface. This city's ordinance requires a wetland alteration permit when there is any activity within 200 feet of a Class A wetland. There will be no loss to the wetland because all activity will be adjacent to the wetland, therefore mitigation is not necessary. This site was inspected as part of the current wetland inventory the city is undertaking as a part of the Surface Water Management Plan. It was noted that this wetland is an isolated wetland, and that there is sedimentation entering the wetland from a road-side culvert. In addition, there is sedimentation entering the wetland through the ditch. The survey also noted that the dominant species was Narrow Leaf Cattails and Sedge grass, and there is also an abundance of Purple Loosestrife. The edge of the wetland has been determined to be at the 917.0 contour. Construction of the turn lane proposes filling out to the 918.0 elevation. The ditch would be filled and a storm sewer pipe would be extended beyond the turn lane. The plan proposes the storm sewer to have an outlet elevation of 917.9. Staff would recommend that a sedimentation basin be placed at the pipe outlet to reduce the sediments flowing into the wetland. This sedimentation should help improve the quality of the wetland. Staff is having the city's storm water management consultant (Bonestroo) review this to determine the sizing for the pond. SUMMARY All proposed construction activity is adjacent to the wetland, except for excavation of the sediment basin and extension of the storm sewer. There will be no reduction to the size of the wetland. Staff is recommending that at the end of the storm sewer outlet a sedimentation pond be created at the 917.9 elevation. This sedimentation pond should improve the quality of the wetland. RECOMMENDATION Staff recommends the Planning Commission adopt the following motion: "The Planning Commission recommends approval of Wetland Alteration Permit#92-10 to allow construction within 200 feet of a Class A wetland and the installation of a right turn lane adjacent to a Class A wetland with the following conditions: 1. All filling shall be limited to the 918.0 contour, except for the extension of storm sewer pipe and the sedimentation pond. Cheyenne WAP July 28, 1992 Page 3 2. Type II erosion control be in place around the construction boundaries of the wetland. 3. There shall be no filling or dredging permitted within the Class A wetlands except for the sedimentation pond. ATTACHMENTS 1. Plans dated June 25, 1992. 2. Map of subject site. 3. Wetland Observation date May 6, 1992. 40f Y ;= : o a City of Chanhassen Wetland Observation Records Wetland No.: 1 (Field Review):.,417_,- u( 1) (Official Map) Location t(b N T; R; 12_ Section On USGS NWI: �Y N Observer Initials:£L f fl pA Date Visited: 5 /b / 9 z Picture Number(s)/Roll #: 1- t/gt.i, Picture Nos.: L 2_ (see. d ,.,c, Classification Wetland Type: P E Y% (Cowardin); 3 (Circular 39) Wetland Location: Lakeside Streamside Headwaters ✓ Isolated (upland) Edge of Wetland Contour q,,,0 ;varies City Class: (P)ristine ; (N)atural ; (A)g/Urban ✓+- ; (U)tilized - Watershed Characteristics Wetland Size: acres Direct drainage area: acres Total drainage area: acres Open water area: acres Vegetation Dominant Plant Species: Reed canary grass S Cattail _ ES a•.t(•, rr 5 f1Wu.A . 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F. _ r l ' )RARY EASEMENT * * - _____/CLASS „ � - -�— —4c AN, �LE -�, i 0" - tr * , •' UTILITY EASEME 6, ---- fotaigilheim-. -.....v.ab...M.= .I• % millikv .... lebVp ....m...... iir —1 : . 7-7.-7-74,7..7077. 7-;.�:Z.=i.��•�-�-_ _ •'".7re?Z ._---::.4: --,'G� N ! 3 ci! ! 11 I ,e--Q 112-TRAVELED WAY - _L„__ ___,_ -�— - STATE HIGHWAY INE - .-- _ - p NOTE: SAW CUT LEFT EDGE F ' WAY. MAINTAIN MIN, DIS SAW-CUT LINES Q 15 30 _ CHANHASSEN PLANNING COMMISSION REGULAR MEETING JULY 15 , 1992 Acting Chairwoman Ahrens called the meeting to order at 7: 40 p .m . . MEMBERS PRESENT: Matt Ledvina , Steve Emmings , Joan Ahrens and Jeff Farmakes MEMBERS ABSENT: Tim Erhart , Ladd Conrad and Brian Batzli STAFF PRESENT: Paul Krauss , Planning Director and Kate Aanenson , Planner II PUBLIC HEARING: NON-CONFORMING USE PERMIT FOR A RECREATIONAL BEACHLOT FOR SUNNY SLOPE HOMEOWNERS ASSOCIATION . Public Present: Name Address Dick Nelson 360 Deerfoot Trail Jeff Nelson 300 Deerfoot Trail Alan Dirks 9203 Lake Riley Blvd . Kyle Tidstrom 340 Deerfoot Trail - Ken Wolter 341 Deerfoot Trail Joy Tanner 9243 Lake Riley Blvd . Eunice Kottke 9421 Lake Riley Blvd . Kate Aanenson presented the staff report on this item . Ahrens : Does anyone have any questions of staff before we get started with the public hearing? Ledvina : I do . Kate , has anything changes since 1988 when , that was the - last time that the Association requested a variance and they were turned down . Has anything changed? Aanenson: As far as the level of use? Ledvina : Well , in terms of any of the issues that surround this request . Aanenson : Not to my knowledge . The Association may have some other information but to my knowledge , no . - Ledvina : So there 's no new information or? Ahrens: Okay . Is the applicant here to address the Commission? Ken Wolter : My name is Ken Wolter . I reside at 341 Deerfoot Trail in Chanhassen . I 'm the current President of the Association and there are a number of things in the report that I 'd like to bring attention or call attention to in response . The application I did fill out at the time did state , you know when I confirmed what was in 1981 , does state that there was a dock there . I didn 't state in here that it was out on the water . At Planning Commission Meeting July 15 , 1992 - Page 2 the time in 1981 there was only one person , one house in the association of 12 . And there 's a letter also attached , if that was read by the Planning Commission , from a Mr . Steve Burke . And he is no longer a member of the association . He lives on the other side of the lake and he wrote a letter for us stating that there was a dock there on the land . He never put it out at the time that he was there because of the fact that he didn 't have a_ boat at the time . But the reason he did purchase the property there and build was because there was the opportunity . Also should be in the same package , showing how Sunny Slope Association was being represented and being sold in the city of Chanhassen as to having beach rights , dock - rights , and all the normal boating rights that any other association would have . If that letter , if you 'd like to have me read it for the public? Ahrens: I think that 's okay . We all have copies in our packets so we 've read the letter . Ken Wolter : Okay . But I just wanted to clarify to that point that the application I did fill out for what was back in 1981 does show that there was a dock as per the letter from Mr . Burke . Also on the Court Finding by the District Court , one thing I 'd like to also bring up , there was - significant information that we wanted to bring into the court system and I have to say , back at that time we had some problems with a person we had representing us . And he told us we could just hold off until the time of Court date . And with that information it was representing what was happening in the city at the time . As to who had docks on smaller Lakeshore lots than us , and obviously that 's what this whole process was for now that you 're going through with all the associations that are non- conforming but we still as an association feel we have the right to a dock because there was a dock there . We feel there is no additional burden to the lake or should cause no problem . We have our plans in effect to have a- dock there and 3 boats is what we 'd like to have . That 's all we 're asking for . We 're not trying to overuse anything . We currently do pass through the Eden Prairie park when we do launch our boats so useage on the lake , we_ are already using it in that manner . We 're just looking for the final , what we feel is the right of the association as how it was represented throughout the entire life of the association . Farmakes: Can I ask a question? Ken Wolter : Sure . Farmakes: Mr . Burke 's letter says that they were the only family in the association . Does that mean in the association or does that mean in the _ development? Ken Wolter : In the development . He was the only house there at that time . Farmakes : So I add 2 1/2 years onto June of 1981 , is that correct? Ken Wolter : Approximately that , yes . I was not there at the time . This - is the information that I gathered from what I could from Steve Burke and any documentation in the association that I have . That I currently have . Ahrens : Are there any boats in the water now? Planning Commission Meeting July 15 , 1992 - Page 3 - Ken Wolter : No . No , we 've been trying to abide with it but when the City sent the letter for non-conforming beachlots we felt this was our opportunity to bring the evidence that we tried to bring into court and basically the court decision was through default because we couldn 't submit the information . We feel that the court sided on the city because the information was not there so it was a default . Ahrens: Did you appeal the decision? Ken Wolter : The lawyer that we had at that time didn 't want to do it and - basically we were told it wouldn 't do any good at that time . Unless we go through the whole process of going to the City Council and the Planning Commission and the whole avenue like that and basically , from what I was told , the Judge didn 't even want to hear about it until it went through all of that procedure again . Us to introduce it into the . Farmakes : Why wasn 't the builder aware at that time of the issue that was - before the City on non-conforming beachlots? How much before '81 was this development? In the planning stage . - Ken Wolter : Well , I believe the association was approved in 1977 . At some point here he did buy the lot as a lakeshore lot . Farmakes: Correct me if I 'm wrong but you said that there wasn 't anybody living in the development until June of 1981 , is that correct? Ken Wolter : Steve Burke , no . He bought . . . Emmings : Late 70 's you mean? Kyle Tidstrom: Late 1980 . Emmings : Oh , 1980? Oh , okay . Kyle Tidstrom: August or September of 1980 was when the house went up . When Steve moved in , I don 't know . - Ahrens: Excuse me . Could you give your name . Kyle Tidstrom: Kyle Tidstrom . I live at 340 Deerfoot Trail . . . Farmakes : In the second paragraph of his letter he says , we bought the house at 340 Deerfoot Trail , Sunny Slope Association . So I 'm confusing I guess the issue of lakeshore association with the development itself . Is - that just an error that he made or should that have been development instead of association or what? - Ken Wolter : I guess it should be development . Sunny Slope development is 12 homes and are associated property , that 's a commons area for that association . Farmakes: How could you be an association if there wasn 't anybody in the development? That 's what I 'm asking , in '77? Wasn 't there somebody living in the development? Planning Commission Meeting July 15 , 1992 - Page 4 Ahrens: The association is created at the time of the development and it 's usually a creation in the By-laws . Farmakes: Okay , so it 's in the By-laws but there 's nobody actually in the association except for the owners . Ken Wolter : The owners and the developer of the property , correct . Ahrens : Anything further? Ken Wolter : I think I have covered everything . Is there anything you wanted to ask Al? It 's just the recap of what I 've stated and wanted to present here . What we feel is stuff , information that should be brought and if there 's any questions about it , we feel that that should be taken into consideration . Ahrens : Okay . We may have some questions later but we 'll address those when they arrive . Would anyone else like to address the Commission at this time? Step up to the podium please and give your name and address for the record . Alan Dirks : My name is Alan Dirks and I used to live , I was the second home that came in there . Steve Burke 's home was actually , now I live just on Shore Acres there across the street but just to give a little insight . I - was the first home to actually come to Alan Gray , who was the developer at the time , because Steve Burke 's house was the actual model home which was going to be a retirement thing I think was the original By-laws . It was going to be a development for retirement and it kind of went the other direction when we came in and Steve there . Steve had a young family and I did as well and Alan Gray definitely protrayed that ,this was a completely useable beachlot to us and had docking rights and boating rights . So then at the time I did call the City when I went to make application and just said , is this a useable lot . . .? And I think part of the problem with this whole set-up is that it 's become a real emotional issue . I 've worked with Kate on a few things and I think she 's a terrific gal and she 's tried to get some insight on what she can dig up on this whole thing and there 's been some misinformation along the way and I don 't think a lot of it is , the rules were in place . Did it go into place actually in '81? Aanenson: The beachlot ordinance was adopted in 1982 . January . Alan Dirks: Because when I first started building in '83 . We completed in '84 and this was in the spring of '83 when I called the City and at the time they still were saying to us , go ahead and make . . .use of the lot . Then when in '88 when the Court issue actually came up . When the Court issue actually came up , I was still living there and at the time there was a lot of interest in keeping the reduction on the use of Lake Riley . And on the Eden Prairie side of Lake Riley where they have the boat access , they had a limited number of stalls that you could park your boats at and it was all really confined . And I think that was part of the emotional side of keeping the boats off of this and the dockage off of this lot . But - since then Eden Prairie 's found that that was illegal in essence to restrict the number of boats they could launch over there as well . So I think the time that this actually went to Court , there was a lot of emotion Planning Commission Meeting - July 15 , 1992 - Page 5 running high about Lake Riley . And I 'd just like to say that as a lakeshore owner now , I think that you 're not going to , I think there 's a lot of inconsistency to go ahead and not allow these 12 homes that , especially in the early development stages , were not allowed or were told that they 'd be able to have a boat and have dockage and have rights and then come back at this late stage , open up the east side of the lake with the Eden Prairie side and let all the boat access go onto the lake from - people that aren 't on or contributing in any way to the lake . Whereas these folks are certainly lakeshore owners and paying their taxes and contributing to those lake associations . Farmakes : Can I ask you a question? Alan Dirks : Sure . Go ahead . Farmakes: Will you define for me at the time that you bought your house , what you believed at the time is full use of the property? Alan Dirks: There was no question in my mind that , I mean at the time I couldn 't afford lakeshore and so it was the best option for me at the time and that , they said that we could launch boats across as well as have a dock and storage overnight . And so that was our full intent . Farmakes : Did the City say that or the developer did? Alan Dirks : Well the developer said that and I called the City to confirm it but I never got it in writing or anything because all the stuff that he - was handing out , you know I guess maybe I should have gone further with it but at the time there was no question in my mind that I 'd be able to use it as a , actually we knew that there 'd be some restrictions and that we might have to rotate as more homes came in . Because I believe he was telling us there were 4 boats could be had at the time . Now Ken said 3 . That was news to me but at the time Alan Gray was saying 4 . Well I was just the second house so that wasn 't a problem . Farmakes: So at that time you contacted the City . That was '84? 83? Alan Dirks : It would have been the spring of '83 . Farmakes : Thanks . - Ahrens: You know this is a tough situation for us too . We 're not trying to create any hardship for anyone . I think the problem is a lot of people may have , you 're not the only association that we 've seen this happen to . I - think there are probably a lot of causes of action out there against developers who told people they had rights that they didn 't have and the City now is not trying to take away any rights from anyone . We 're just . trying to establish what rights people did have . What rights the Associations had back in 1981 and enforce those rights . Alan Dirks : I think you hit the pivotal thing in here is that in 1981 it - seems to me there was a timeframe where , whether there was a dock actually in the water or not . And it seems to me that whether or not the dock was Planning Commission Meeting July 15 , 1992 - Page 6 in the water shouldn 't have that much bearing . It should be what the rights the people had in 1981 . Ahrens: Right but as far as we know , there were no rights for your association because we certainly don 't have anything documented . And what we 're trying to establish is the use of the lake , not whether or not there was a dock in the water . Whether or not there were boats in the water is what 's important to us . Alan Dirks: Kate , how did they determine that again in '81 though? As far as whether or not it was being used as a full boat dockage . Aanenson: I wasn 't here . It 's my understanding the staff person who did it went out and took , documented the length of the dock and then that there was canoe racks , the number of boats and that was all documented . For this beachlot the notation said , no dock in water . No boats . No canoe racks . Alan Dirks: So that was the criteria that she went by , or they went by at the time? Aanenson: Whoever did it , yes . Alan Dirks : Was whether or not it was in the water? It seems to me it should be more the issue of what the intent of the lot was . Just thought I 'd . Ahrens: Thank you for your comments . Does anyone else have anything? Would you like to step up please . Joy Tanner : I 'm Joy Tanner . I live at 9243 Lake Riley Blvd . and I 'm directly , I have Lots 38 and 39 , Shore Acres . There 's some clarification I could make on some of these issues because I 've been here longer than any of them . Ahrens : When did you move in? Joy Tanner : My home was built in the summer and fall of '79 and actually I - bought my lot , started the initial investigation , say with the City before the lot was bought in early '78 . Okay at that time Alan Gray had , as you see from your records , had applied for a conditional use permit and so forth for the development . Due to the negative response in the neighborhood , he withdrew the petition at that time . The request . That was kind of the start of things and every few years , not for a while but every few years we 've gone through this same thing . They didn 't show in case summary but I think I was probably , I can 't tell you how many times this has been before the Planning Commission . It was withdrawn each time , probably until when was it that the City turned it down? Aanenson : '86 . Joy Tanner : '86? Okay , whatever . There was a dock on the land . That 's for sure when we moved in in December of '79 . Sometime . Ahrens: Was the dock on the land? Planning Commission Meeting July 15 , 1992 - Page 7 - Joy Tanner : There was a dock laying in the grass until '84 when I was separated , my husband mowed that grass in the summer because the lot was there and the weeds were growing . Sometime , either late in '81 or during the summer of '82 , the person living in the , the tacky cabin on Lot 36 , picked the dock up , took it over to his house and nailed it on the house for a deck . So the dock was gone . I mean there was no dock you know at that point in time . It stayed there until Paul Olson bought the property - and at that point when we was tearing down the cabin to rebuild , that was the point that Steve Burke did give Paul the dock . Okay , he didn 't give it to him to put into the lake so it was kind of a round about thing . Things - haven 't changed . The Sunny Slope families have been using it as a swimming beach and maintaining it and they 're nice neighbors for swimming . I would not like to see a dock and 12 families with water skiing and all the = intense use . I don 't dislike people . People are fine . It 's a difficult situation but nothing truly has changed much . I guess that 's it . I can 't think of what else . Ahrens: Thank you Mrs . Tanner . Anyone else like to speak on this issue? Kyle Tidstrom: My name is Kyle Tidstrom . I do live at 340 Deerfoot Trail now and I guess I 'd just like to say that we do ski and we won 't be skiing in the bay . You can 't ski in the bay . And we pull in there and sit during the day and that isn 't going to change by having a dock . I appreciate Joy mentioning that that dock was laying on the land because it seems like the - decision on this was all made on was there a dock there and was there intent to have a dock there and there was and I 'd just like people to look at that and make a decision based on that information that wasn 't in the - Court case that came up due to one reason or another . Ahrens : Alright , thank you . Anyone else like to address the Commission? Emmings moved , Ledvina seconded to close the public hearing. All voted in favor and the motion carried. The public hearing was closed. - Ledvina : Well I 've taken a look at the information that 's been provided and I don 't see that anything has really substantially changed in the last 4 years since this issue was brought before the City Council when the - variance request was denied . And I don 't see any reason at this point to allow this site to be grandfathered in . That 's it for my comments . I think that the continued use of a swimming beach is fine . That seems to be an acceptable practice for this outlot . That 's it . Ahrens: Okay , Jeff . - Farmakes : We 've heard several associations here and we keep on hearing the same thing over and over again . I wish there was some sort of Truth in Housing I guess type Act in regards to this type of thing . It seems to me that there 's something inherently wrong when people are out selling things that they don 't necessarily have the right to sell to people and using it as an enticement to sell property . If you look at when the ordinance was going in and when this met , they sort of just , they 're by the edge . One - is , if you take a cut off date , one is on one side of the cut off and one is on the other and I can understand your frustration . But they have to pick a date and the date that they picked was '82 . January and it seems to Planning Commission Meeting July 15 , 1992 - Page 8 me , if I look at Mr . Burke 's letter , that he is the only person in the development and he doesn 't , he didn 't use the dock . He didn 't have a boat - in the water and if you 're going to use that as a cut off date in the ordinance for grandfathering , you missed the boat . Not to make a pun but that 's what 's happened . It seems to me that I have really no choice here but to go along with the staff 's recommendation because to do so , to make an exception for this would be to undermine the ordinance inrelationship to all these other people who have been in here . It would be nice to pull something out of a hat and say it 's okay but again , with ordinances , you have a real problem doing that because if you make an exception for one , then they all come and then the ordinance really serves no purpose . Ahrens: Thanks Jeff . Steve . Emmings: I think the prior , I basically agree with the comments that have _ been made so far . I think that the Findings by the City Council in '88 and the subsequent Court case , the Findings in that are determined upon this issue because if they had rights that existed prior to the beachlot ordinance being enacted , they would have grandfather rights and those would have been a defense in a Court case . So I think those things are determinative and we have to go with what was actually there in '81 which we 're using as a baseline and in '81 they didn 't have a dock and they weren 't docking boats and I don 't see how we can give it to them . Ahrens: Okay . I agree also with the comments that have been made . This is , to repeat myself . This is tough for us to make these decisions . We 've - been listening to the applications from several associations for the last couple of months and we 're trying to be consistent . We 're trying to follow any information whatsoever we have to support a decision to follow the 1981 baseline and in this case , some of the best documentation we have is from a next door neighbor who says there was no dock in the lake in 1981 . In fact , the dock was used as a deck for at least a couple years after that . I 'm going to have to go along with the staff recommendation on this . Again , the City Council will be considering this after we make our recommendation and I suggest that , when will that come up? Aanenson: August 10th . Ahrens : August 10th . I suggest you follow it if you care to do so . Do we_ have a motion? Emmings: I 'll move the Planning Commission recommend to the City Council that the non-conforming recreational beachlot permit application for Sunny - Slope be denied . Ahrens : Is there a second? Ledvina : Second . Emmings moved , Ledvina seconded that the Planning Commission recommend denial of the Non-conforming Recreational Beachlot Permit application for Sunny Slope Homeowners Association. All voted in favor and the motion carried . Planning Commission Meeting July 15 , 1992 - Page 9 - Krauss : Excuse me Chairman . We just noticed that , we were just made aware that there was an erroneous publication put in the paper on Minnewashta Heights Homeowners Association to install a chemical toilet . . Are we familiar enough with it? Aanenson: Yeah , we can do it . That 's fine . - Krauss : There are a number of people apparently here who came out on this information . I don 't know , was mail notice sent out too? No? Possibly , it 's kind of unusual but maybe you can get some input from the folks here - so they don 't waste their evening . Emmings : Well , would it have to come up on another agenda? Ahrens: Yeah . Krauss: You would have to make , not take an action on it but we could log - in the comments for the record I suppose . Ahrens : But we 'd have to have another public hearing on it . Lauren Huntington : It was in the paper . I mean it was in the paper . That 's the reason . Farmakes : We don 't have any information on it . Aanenson: Minnewashta Heights , you just heard that beachlot recently . I - think it was the last one you did . Emmings: It 's the one near my house and they 've had a chemical toilet down there for several years . Lauren Huntington: . . .unless we can get a condition to put one in while , until you discuss it next . Ahrens : It would be on the agenda until November probably . I 'm just kidding . Lauren Huntington: Little cold . Krauss : Well I mean this is kind of unusual . I don 't have a great answer for you but I thought that this one was kind of straight forward . Emmings : If you put it on another agenda , you 've got to advertise it again — because it will be a public hearing . Krauss: Right . Lauren Huntington : So what else is needed besides this? I mean like . Emmings : We don 't have any information in our packets . We don 't have the - application . Wouldn 't there have to be mailed notice to the neighbors and things too? Planning Commission Meeting July 15 , 1992 - Page 10 Krauss: Well possible we could start proceeding with the apartment project and if you 'll hold tight , I just want to check . Sharmin Al-Jaff I think — was working on this and I think she 's meeting with the Senior Commission next door . Emmings: Well what do you want to do? Krauss: I don 't know . If you 're uncomfortable dealing with it , I guess we 'll have to . — Ahrens: It 's not that I think we 're so uncomfortable . It 's just do we have to have another public hearing after this? I 'd hate to devote two — meetings to the chemical toilet . Lauren Huntington: For us it 's two nights . We have babysitters and I mean. Ahrens: Yeah , I don 't know why it wasn 't included in our packet but we don 't have any information on this at all . . .public hearing, I think we — should wait . Krauss: Well , I mean legal notice apparently has been published . Emmings: Yeah but we don 't have any , taking information on something when we don 't know any of the background doesn 't seem to make sense and we can't ask the people questions . We don 't know what the issues are . I don't think it makes sense to do it . Krauss: I have to apologize for this and we 'll get it on the next meeting.— Ahrens: I think that they 're sitting behind you . Krauss: We have to apologize for this . — Lauren Huntington : So when is the next meeting? Aanenson: It 's August 4th. Lauren Huntington: I mean we can only have the chemical toilet until . . . Emmings: Let me ask Paul . Do you have sufficient power to do this administratively pending approval? Lauren Huntington: And if we put one in and then if it 's not approved , we'll take it right out? Krauss: I guess given the circumstances, I think we ought to do this on an interim basis at least . Ahrens: I think that 's a good idea . Sorry about that . Lauren Huntington: That 's okay . I know the neighbors on both sides won't have a problem . Planning Commission Meeting July 15 , 1992 - Page 11 Krauss : Sure . We ' ll acknowledge that . Emmings: If the neighbors don 't have a problem with it on either side , if they would . If they don 't come in and complain , that 's great . Even better if they sign something that says they don 't have any complaints . Ahrens : The City may want a contact number and call them . Emmings: That 's real persuasive to us . Lauren Huntington: Okay . So it 's okay to go ahead and put one in and then take it out if it . Emmings : Talk to him about that . Ahrens: Arrange that with Paul or Sharmin . Emmings : It 'd get something in writing too you know from him . Krauss : Well this being government , I 'm going on vacation tomorrow morning . I ' ll have her take care of it . Lauren Huntington: Okay , so we can go or do I need to stay? - Aanenson : Yeah , that 's fine . Lauren Huntington : Okay . My name 's on that paper . Aanenson : Yep , we ' ll call you in the morning . Ahrens: Anybody else who 's here for the Minnewashta Homeowners , is it the - Homeowners Association? Aanenson: Heights . Ahrens : We 're not discussing it . Okay , staff report on the Oak Hills . PUBLIC HEARING: CONCEPT REVIEW OF A PLANNED UNIT DEVELOPMENT FOR 3 ( 16 UNITS EACH RENTAL ) BUILDINGS , 9 ( 8 UNIT OWNER OCCUPIED) BUILDINGS AND A CLUBHOUSE/OFFICE ON 25 .29 ACRES AND REZONING OF PROPERTY ZONED R-12, HIGH DENSITY RESIDENTIAL TO PUD AND LOCATED NORTH OF WEST 78TH STREET , BETWEEN KERBER AND POWERS BOULEVARD , OAK PONDS/OAK HILL , LOTUS REALTY/OAKS COMMUNITY DEVELOPMENT . Public Present: Name Address Brad Johnson Lotus Realty Arvid Ellness Arvid Ellness Architects - Kirk Willette Arvid Ellness Architects Mike & Mary Henke 7560 Canyon Curve Randy Swatfager 7511 Canyon Curve Planning Commission Meeting July 15 , 1992 - Page 12 _ Name Address Mark Schallock 7501 Canyon Curve Joe Perttu 790 Santa Vera Drive — Greg & Cindy Hromatka 7580 Canyon Curve Randy & Michelle Erickson 7491 Canyon Curve Gregg & Shelly Geske 7530 Canyon Curve Karen Bramow 7490 Canyon Curve Dave & Jane Callister 7540 Canyon Curve Jack Thien 7570 Canyon Curve Christy Kuckler 7550 Canyon Curve Tim & Mary Anderson 7550 Canyon Curve Bob & K . Dianne Bohara 7510 Canyon Curve Doug Kunin Temple of Eck Michael Lindelien 7610 Canyon Curve James A . Russ 7521 Canyon Curve Terry Wooymeerten 7461 Canyon Curve Lynn Lord 7531 Canyon Curve John Linforth 7471 Canyon Curve Kate Aanenson presented the staff report on this item . Ahrens: Okay , thanks Kate . Before we get started , maybe you could explain to the folks here the stage we 're at in the review of this proposal . Tonight we are reviewing the , what we call the conceptual site plan . Maybe you could explain how that fits into the review of this whole development . The stage we 're at . Krauss : If I could possibly respond to that . As a PUD , it goes through three steps . There 's the concept plan , a preliminary plat , a final development stage . The concept plan basically says , this is as far as it 's been taken now . Give us the issues to work with and we raised a lot of issues . We expect the neighbors to raise some and you to raise some and the City Council . They 're then asked to go back and refine those issues . Come through with a formal public hearing on that and then come through with the final development stage . This is more of a fact finding process I suppose at this point . As I say , we 've raised a number of questions in our - staff report . We think that these things are normal and can generally be addressed but we pointed the direction for things that need to be resolved . So this is an informal point in the process . Ahrens: Okay . Does anybody have any questions of the staff before we get going? No . Would the applicant like to address the Commission at this point? Brad Johnson: Madam Chairman , members of the Planning Commission . My name is Brad Johnson . I live at 7425 Frontier Trail . I represent Lotus Realty - Services who is the managing partner of this particular project . I have with me two representatives of Arvid Ellness Architects who will be speaking as part of my presentation . One of the reasons I wanted to be involved in this project was that I , when we did Market Square I was the one after this one and so I was going home around 4 :00 every morning if you Planning Commission Meeting July 15 , 1992 - Page 13 - recall when this was going through the first time around . And I sat through and listened to all the things that I perceived just done wrong as part of the project . I do run through that area in the mornings and I 've gotten to know the land fairly well and so the issues that I perceive that we , as developers of this particular site had to address , first of all is the past . And then secondly was the things that are probably priority . One is , when this went through originally there was no neighborhood to look at it . We now have a neighborhood . The homes have been built up on the north side but previously they were not there . So we had to deal with that issue and try to conceal as much as we could the project itself . Thus we went to a smaller builder than originally planned . We were concerned about the TH 5 corridor because I sit through those meetings also and I think you guys just went through one and we know that this particular stand of oak trees is important to that particular corridor . As to what the project will ultimately look like from the TH 5 when the whole thing is built and that type of thing . We were concerned about the trees and trying to preserve as many trees as we could and by using the unit style that we have - and the mix that we have , I think we 've done that and then in addition to that , we added a park like type of thing in the middle of the project to save the stand that happens to be in the middle . And so it worked out quite nice as far as the project is concerned . As far as grading is concerned , we had a number of proposals which would have just about leveled the whole site . We now have buildings that we can move up and down and use as walkouts and so basically we don 't perceive that we ' ll have to do an extreme amount of grading on the site . There was a concern that we 're just going to have to carry it all the way and put it down Charlie James ' and over to Mr . Burdick 's site but I don 't think we have to do that . So those - are the 4 things that we have been trying to be sensitive to and try to meet the particular needs of the neighborhood , the TH 5 corridor , preserving the trees and providing minimum amount of grading and we 've worked with the staff . To that we 've also introduced a couple of new types of rental units that are not currently being built here but built largely on the East Coast that take care of that type of site . I 'd like then to introduce Arvid Ellness from Arvid Ellness Associates . We 've brought - aboard a firm that 's done 15 ,000 housing units and we perceive they know and are sensitive to both neighborhood and community needs as well as planning and so Arvid will come up . Introduce part of the project from his = point of view and then also Kirk Willette who is the project manager for this will address some of the concerns that we 've heard already from the neighbors . As we say , as we pick these concerns up , we 're trying to make the changes that are necessary to make it a good project for everybody . Thank you . Arvid . Arvid Ellness: Okay , we will introduce some new information . Some new - sketches . Two new perspectives of the for sale unit and a conceptual sketch for the rental unit as well as a site plan that has been revised to reflect some of the comments of the staff . Brad , in asking me to speak tonight , hoped that I would mention some of my experiences with Chanhassen . We were the architects of the conceptual development of downtown . In the years past here we did the Park Square building and the Heritage Apartments there and also the professional building , but not the intersection in front = of it . The other projects that we 've done throughout the city and other communities have been of all varieties and certainly we 're familiar with this building type . All Trammel Crow residential communities and the Gates Planning Commission Meeting July 15 , 1992 - Page 14 at Carlson Park and Chasewood and Devonshire as well as many other communities . We 're working in about a dozen , 15 communities today . Our work is housing and so we 'd like to invite the input of not only the Planning Commission but the residents and for reasons that we 're at that conceptual stage . Now I 'm going to , if I understand the technology of this room , I ' ll put these two sketches up here . If the camera can find those and focus in on them we 'll give you a little better indication if you watcr the monitor . Otherwise I can sort of turn them around too . The idea on the for sale unit is that this is a model that 's basically been a very — popular one through the whole metro area . It 's sold real well . It 's patterned after developments that I 've seen in Roseville and many communities and something even somewhat similar down TH 5 here east of Chanhassen . It 's a for sale unit that seems to fit the best on flat site which gaves us a great deal of difficulty when we tried to consider the possibility of placing on the embankment side of the site . It seems to blend and fit very comfortably on the high end of the site where the topography is relatively even and offers an end view of the highway corridor to the south . They 're relatively attractive from the highway side or the end view and that particular rendering is much more developed and more of a fix in the minds of the developer at this point as to what the product will be . The one that we 're working with as architects and in order to design to fit the topography and to fit this particular site is the rental units and that particular perspective is less developed at this point but it does reflect an idea that we 're trying to do a unit type in which the , where we can park and keep all the cars on the protected side or internal side of the site and to do what we can do is essentially a split - building where there 's a walkout on the downhill side and an approach from the uphill side . Then conceal all the parking within the internal areas of the site . And when we use that type of a unit , which is actually a smaller mass than the for sale unit , we 're able to sort of snake it through the site taking into account that there 's ravines and existing trees and blend it and coordinate it into the site topography much easier and we think very successfully . With the standing trees that exist along the embankment there , we think that that will not only provide a certain amount of shielding to the existing neighborhood but also allow the community to sort of co-exist you might say with the surrounding area . The wetlands that — you 've shown up there are primarily on the property of the developer . Caution and care will be taken to preserve those and work with those as appropriate . The community center is central to the whole community and we _ hope it will be used not only by the rental community but by the for sale buyers as well . The materials that we 've talked about using on the building will be year round permanent materials . We 've talked about different types of siding from vinyl to metal siding and most of the units - in fact , probably all of the units have balconies overlooking the ravine for what is visible through the trees . The revisions to the plan which we ' ll bring up next , most the work in accommodating the comments that we 've_ heard so far have been coordinated on this plan that we 're now going to present and Kirk Willette from my office has been working in detail . And they include such things as the alignment of the road and the reduction of _ the mass of some of the buildings into smaller components as well as actually eliminating 8 of the units that we have shown previously to the staff in order to accommodate the required parking that was brought up in that report . So we 're in the process of evolving this development and this- Planning Commission Meeting July 15 , 1992 - Page 15 plan and we 're trying to take into account the sensitivity that we - understand to date . So with that I 'll bring Kirk up . Ahrens: Which one did you eliminate? Arvid Ellness : We eliminated that upper building . If you could point to it on the overhead , and the new site plan will address it . Yes , that one . We didn 't eliminate it . We actually made it two small buildings . I 'll just let Kirk make that adjustment and explanation . Ahrens: This is your new site plan? Kirk Willette: This is the new site plan , yes . After having some discussion with the staff and then taking the report and understanding some of the comments that the neighbors have from the site , we started working with the site and with the individual buildings . The first comment that we had heard about , in speaking with staff was the concern about we have two large buildings . One here and one sitting here . Each 16 units and so we - broke those down to 8 unit buildings here and curving around with the trees and topography and then a 12 unit building here . The other thing that that did , that changed the building that sat over here between how this - pushed the parking and how the buildings were reconfigured and also the amount of parking that we , our original parking was 2 to 1 and after our staff meeting , we found that we needed additional guest parking . And so that added approximately 40 cars that we needed to provide . So on all , between the parking and reconfiguring this part of the site , we went from 168 units to 160 units of rental . - Ahrens : So you just have , it looks like just one building left with 16 units in it? Kirk Willette: We have one 16 unit building and that 's back on this side . The other comments that we 've looked at , we did show a trail along Powers on this side . The recommendation was a 60 foot easement instead of 50 feet with the sidewalk on both sides and we can accommodate that along the dedicated street . We 're maintaining all of this area the plan is , the natural curve of the topography and the trees on the south side of the trees , is to maintain that tree line and not do anything north of that tree - line other than this trail . So that 's the whole idea of how the whole site design was originally laid out . Was to keep the tree line and to follow the natural grades on the site . I think that 's it . Ahrens: Okay , do you want to turn that around so people can see it . Kirk Willette : Oh , I 'm sorry . We realigned this road from that original plan so that it . . . Resident : Did you say there was only one 16 unit building? . . .there 's - still one way up in the corner like two 16 unit buildings . . . Right there . Kirk Willette : Those are 12 unit buildings . Ahrens : The only 16 unit building is the one , he 's pointing to it right now . The other ones are 12 units . Planning Commission Meeting July 15 , 1992 - Page 16 Kirk Willette : There 's one comment , the 40 foot height that was mentioned . That is the very peak of the roof . The building on the back side would actually be the same as a 3 story house with a walkout . So the height on the back is no different than a two story building . Or two story house that has a walkout . Ahrens : Would anyone else like to address? Brad Johnson: Perhaps you might point out how far the buildings are from the houses to the north . Kirk Willette : From the lot line to any point , this is the nearest point . This is 200 feet from the property line to this point here . - Resident: But how close are your buildings actually to the tree line itself? How tight are you bunching yourself into the trees? Kirk Willette : We 're not going beyond the drip line of the trees . That 's what this represents is the drip line of the trees . So we 're staying outside of that drip line . Resident : By how far is what I 'm asking . Kirk Willette : In some cases in here , we would be up to the drip line . In here we would be up to the drip line . These are pulled back slightly . Resident : And you can do your grading and everything like that without taking out any of those trees or damaging those trees? Kirk Willette : As long as we stay outside of that drip line . Resident : What 's the drip line? Kirk Willette: That 's how far the trees extend out . Resident : So you 're saying an oak tree of that age , it 's roots would not go out beyond where the drip line is? Kirk Willette: Generally yes . Resident: Generally or they will? Kirk Willette : That 's what landscape architects and landscape designers go _ by is the drip line . They stay outside of the drip line . Resident : Because I would think trees of that age would have a root system rooting out , especially having . . . Ahrens : Do you want to , we ' ll ask for questions . We ' ll open this up for a public hearing and if the applicant doesn 't have any more presentation . Do - you have any further presentation to make? ( There was a tape change at this point in the discussion . ) Planning Commission Meeting July 15 , 1992 - Page 17 Randy Swatfager : . . .an apartment that 's got a rental sign up already . Do we need it? That 's the whole thing . And before I get into more questions , we should address that . Ahrens: Okay . I can 't answer that . I don 't know what the rental market is right now in Chanhassen . Brad Johnson: Right now the rental market is zero vacancy . . . Right now a normal city has about 20% to 25% of their units rented . Randy Swatfager : The units right next to yours have a rental sign that 's been up there for months . Brad Johnson: We have a sign up there at all times . In general . . . Randy Swatfager : But is the other one full? The one you 're going to be building next to? - Brad Johnson couldn 't be heard from the back of the room . Randy Swatfager : So you 're going to draw a population , is not going to be - drawn from the Chanhassen population . It 's going to be drawn from the outside to fill these units then? Brad Johnson: Yes . Ahrens : Okay , anybody else? Tim Anderson: Hi , my name is Tim Anderson . I also live in the Saddlebrook subdivision . The farthest west pond or the end to the north of this project . I have some concerns on the layout of the project . I still , as I - understand in proper land use planning is that you go from the most dense development into gradually going into a more less dense development . Downtown , 78th Street 's going to be , is commercially zoned . I 've believe the next step would be apartments , then a townhouse type units then the R-4 or the single family residential of Saddlebrook . This development does not follow that . It seems like for the convenience of the developer , they 're saying well , we ' ll put these units , the townhouse type units are easier to put in on the south end . It makes more sense to me for them to possibly do some redesign on the owner occupied units and put them on the north end . I 'd feel more comfortable with non-rental property abutting by property . There 's some pride in ownership . I lived in an apartment for a long time . I 'm not against apartments in general but I don't like them abutting single family residences . As a definition of a PUD , one of the things that a PUD 's supposed to address is a sensitive transitional areas . I think this - project does not address that very well . My second point is the trail on the north side of the development adjacent to the wetland areas . If you ask the developer or if you have ever walked along or looked at those oak - trees , basically the slope of it , those two ponds are artificial ponds . They were developed by constructing berms across a previous wetland and the water rose and meets a slope that 's from 20% to 30% and if they 're going to _ put an 8 foot trail on there , it 's going to cause a cut into the slope and also construction of the retaining walls to stabilize the slopes . There are oak trees probably within 20 feet of the pond and if they 're planning Planning Commission Meeting July 15 , 1992 - Page 18 to put those paths between the oak trees and the pond , I think the oak trees are going to lose from what I 've seen of construction around oak trees and other places . So I 'll put it on the record that I 'm against the trail . And I don 't believe it provides any service to the community because there will be two east/west connections between Kerber and Powers Boulevard . One being Saddlebrook Curve which has a sidewalk and second is - the street that 's being constructed as part of this project which , as Kate was saying , will have two 6 foot sidewalks on each side of the road which will provide a transportation corridor for bicyclists and pedestrians between the two boulevards . The second item I 'd like to , or third item I 'd like to address is the storm water management of this area . I 'd request it as a condition that the developer and/or the city develop a comprehensive storm water plan for this drainage area . There really is , as I understand - there has not been a plan done for this . There was a small plan included in your packet and in the staff report but it was non-conclusive . It really didn 't say anything . And since they 're going to drain 40: of this project into those two ponds , I think that some reconstruction of , let me back up . First of all the two ponds , as I understand it were designed only for the Saddlebrook development . I 've lived in my house for 2 years and the farthest east pond has had the outlot wash out twice in 2 years . The pond I live on , which is part of the west pond , the outlet has plugged 2 or 3 times and has overtopped the berm . So I think this shows that those ponds need first of all some type of more high quality outlet structures to them and I 'd like to see that done before any more water is put in those ponds . And second of all , I do not wish for those ponds to be enlarged in any way , either by raising the berms or by excavation . There 's no room for excavation . If and when the person does plan to go out there so some careful studies are going to have to be required in this area . Also in storm water drainage . I would like to see any outfalls , storm water outfalls conveyed in storm sewer all the way to the ponds or wetlands . To the normal levels so that no erosion occurs along the slope . And also adequate energy disipation in these storm sewers are in place to mitigate any type of erosion that could occur in the ponds . Any . . .suspension of sediment . Because that slope is very steep where those oak trees are . It 's at 20% , maybe 30% at some points and the slopes should be preserved by proper management and a lot of thought should be put into it before approval is made of this project on this storm water for this site . That 's all I have to say . Ahrens: Thanks . You brought up some good issues . Do you want to address - any of those storm water concerns he had? Krauss: They echo concerns that we 've raised with the applicant . We don 't _ ask to have all the i 's dotted and is crossed at this point . We will ask when they ask for any formal approval to do that . Chanhassen we think has a pretty good reputation in the Twin Cities for first of all being one of the first communities to protect wetlands . We were doing it 8 years before the rest of the State was . And secondly , we 've adopted water quality protection standards that nobody , well Eagan has but virtually nobody else has to date either which we make the development conform to . We 've got similar concerns with the flood balance on those things . There doesn 't seem to be a whole lot of room . They have to engineer the system . We do not allow overland discharge on sites . . . We haven 't done that in my memory and we certainly wouldn 't do it on a hill like that . Plus , when we have Planning Commission Meeting July 15 , 1992 - Page 19 pipe discharges over a hill like that , we 'll make sure that the pipe is sized in such a way that they don 't take out a corridor of trees to do it which is the other part of . . . So while we have raised all these questions to the applicant , they 're aware of the concerns . We don 't have any questions yet . I mean we 're pretty confident they can be handled . The City . . .requires mandates that you deal with your water quality and water storage issues on the site . So they have that obligation . Tim Anderson : And . . .trail itself and an 8 foot trail can be wide . . . Krauss: That is true . I mean we don 't want to sound like we punt on some issues but recreational aspects of the project are really sort of under their purview and they are going to discuss that . = Ahrens : They haven 't looked at this proposal yet? Krauss: No . And a lot of trails that they 've been putting in are not - necessarily asphalt trails . . . They 're valid concerns certainly and they 're certainly going to be considered by the Park Board and we 'd encourage you to . . . Ahrens: Anyone else like to come up to the podium? Joe Perttu : Hello . My name is Joe Perttu and I live across from the - development here on Santa Vera and Kerber at 790 and I 'm concerned about the road that goes from Powers Blvd . over to Kerber and then straight back to , I believe it 's Laredo . I believe that this is a convenient way for - people to cut across . Ahrens: Which road are you talking about? Joe Perttu : There 's a road that goes . Aanenson : Santa Vera would be this street . Joe Perttu : Yeah , this would be Santa Vera . It goes to Santa Vera and then you can take Santa Vera back to Laredo . Krauss : The north end of the city . . . Joe Perttu: Right . Right . I 'm concerned about the ease of access . While - the amount of transportation that can get , conveniently get through this development and then past my house . I 'd like that to be taken into consideration and rerouting that road so that it does not come up to Santa = Vera because I 'm concerned about the traffic and ease of getting from Powers Blvd . over to Kerber and then back into the Chanhassen development via Santa Vera . Emmings: What would you propose? Joe Perttu : The initial plan talked about putting the road I think down by - that 12 unit development . Yeah right there . Emmings: Okay . You 'd prefer that option? Planning Commission Meeting July 15 , 1992 - Page 20 Joe Perttu : I would prefer that option . If not , ,some serious speed bumps or something like that so that people can 't be racing through there . Farmakes: If they were going past your place , where would they be going to? Joe Perttu : There 's the , you can take Santa Vera back into Laredo and ther- from Laredo you can get back to anywhere in Chanhassen and back of Lotus Lake . Farmakes : So you 're saying that 's a shortcut to TH 101 or what? Joe Perttu : Well I 'm saying that there 's plenty of people that live back there and I 'm saying that if they drive this way , they can conveniently pass through this area and back into the back of Chanhassen by and back of Lotus Lake . Farmakes: So are you saying that the people from the development would be driving towards Lotus Lake or people living around Lotus Lake would be driving away from Lotus Lake past your place? Joe Perttu : Both . Ahrens: Well this side is likely to develop some way or another and it 's — highly likely that they ' ll have increased traffic one way or another by your house . Joe Perttu : Well not if they place the road where they 're intending to right now . Ahrens : But that would impact those oak trees there right? If they put the road down there . Krauss: Yeah . There are some sort of signature oak trees there that , you — know maybe there 's a way around it . One of the things that we 've been looking at on this project . Frankly , this is something that didn 't come to mind when we were . . .but we were going to ask the applicant to check in to have the city 's traffic consultant do some detailed design and traffic analysis on the Powers Blvd . curb cut . They 're familiar with the traffic flow in and around Chanhassen and I think they could probably tell us if they feel it 's a concern that 's valid or not . What they do is do an analysis of what 's the quickest way to get . . .would short circuit the neighborhood . Joe Perttu : Well , rather than going down CR 17 or Powers Blvd . and then , or going around it , I think going back into the downtown and then taking Kerber Blvd . back where the intended traffic flow is supposed to be , I think somebody could make a convenient short cut right across this development . Right up Santa Vera and into Laredo . And if I 'm not mistaken , there 's paths back on Santa Vera that go directly to the school . It 's an intended walkway for kids back to the school and it 's going to increase traffic in that area and I think it should be taken into consideration . Planning Commission Meeting - July 15 , 1992 - Page 21 Ahrens: Okay , thank you . Anyone else like to address the Commission at this time? Dave Callister : My name is Dave Callister and I live at 7540 Canyon Curve . I 've got a number of comments and a few questions or clarifications on this particular proposal . The main issue , and a lot of these have been brought forward but I 'd like to emphasize these again . The concern with the height - of the proposal and I guess I want to clarify . In the staff report it says 30 . It says the top or the peak was 40 so what is the real height of that? Aanenson: From the average rate it 'd be 35 feet . That would be the high and the low end . Krauss : If I could clarify that . City ordinance defines building height - different than the peak . It 's kind of the mid point on the roof but I think the architect 's indication that from the back it 's no different than a two story walkout house . Dave Callister : But what we have to look at is 40 feet high? At the highest part . Krauss : Which you 'd look at with a single . Dave Callister : Which is what the neighborhood would look at? Okay . - Obviously screening is going to be something that , as we go along in the process , that 's going to be a concern to many of us . Screening with regards to the buildings and screening with regards to lighting , car lights , parking lots , that sort of thing . I think those things will have to be addressed on this particular proposal . Ahrens : That 's in our packet . The city 's concerned about that also . Dave Callister : Also , I want to clear up some , maybe some misconception or something on the part of some of these drawings here . I don 't know if you - can get a good picture . If you take a look at this drawing . There 's a substantial stand of oak trees that is located in green right here . I don 't think it 's accurately reflected on this map . I 've taken a snap shot right out my back yard and as you ' ll see , there 's not a substantial stand = of trees there . So that . . .concern and I guess I 'd like to see that updated . Farmakes: Where would that be on the map? Dave Callister : That would be , my back yard is right here . So it 'd be - going this way . Ahrens: I guess I don 't understand . You 're saying that they 're showing too many trees? Dave Callister : Well they 're showing a solid block of trees and what I 'm saying is , they 're not solid black . Ahrens: So this goes back to your concern about screening? Planning Commission Meeting July 15 , 1992 - Page 22 Dave Callister : Screening . Adequate screening in that particular area anc that should be reflected in the plan . Ahrens: Okay . We can 't see you anymore . Dave Callister : The other one , I just had a question and I know the topography is awful steep on the south side of the site . Has there been any investigation about accessing 78th Street? Krauss: Not specifically with this plan . From time to time that 's been looked at . There 's a pretty substantial grade change coming down there . — We 're also looking at a commercial site . I mean 78th Street is essentially downtown out to Powers Blvd . and the similar concern that you have with , you know or that people have with multi-family traffic or high density — traffic coming through a single family neighborhood . We also share the concern of having commercial traffic coming through this neighborhood and we 're concerned that if we did that , that would be the results . There 's also not a real good place to drop down on 78th Street . All that land is privately owned and there 's no way . Dave Callister : So as of now that does not look like that 's feasible? Krauss: No . We don 't even think so . We looked at it about a year ago . Dave Callister : Okay . Another concern would be the possibility , the project is phased over 4 years and I think a concern of myself as well as other residents in that area is 4 straight years of construction . I know I hear from my house right now I hear the grocery story and shopping center . I hear the construction equipment from there and that 's quite a ways away . So I guess that would be a concern too and I don 't know what can be done to mitigate the dust or the noise but I think that that has to be taken into - consideration as well . Ahrens: Paul , did you want to address that? Krauss : Well yeah . It is a valid concern . I don 't think you can do a whole lot about the beeping of the trucks as they back up but we could do things to respond to that in terms of establishing hours of operation that - they can work . We could require that they install a little landscaping in the first phase so it is started growing before that phase is built . And as far as dust control goes , we can certainly put conditions in there . Require watering of the site and whatever else to keep that . . . Dave Callister : I guess I would be in favor of getting the landscaping in immediately so that could be taken care of . The last concern I have here and it 's been touched on a little bit but I 'd like to touch on it a little bit more . It 's the walking path that leads nowhere . We 've got sidewalks , two sidewalks on the new road . We 've got , as mentioned before , Saddlebrook- Curve that goes across there . We 're going to have a walking path on the east side of Powers Blvd . which I have no problem with . I do think trails are important but just like everything else , I think they need to be done in moderation . I think that you can 't cross every wetland or every wildlife area with a path because you 're placing an impervious surface there . You 're relocating wildlife because there 's definitely going to be a Planning Commission Meeting July 15 , 1992 - Page 23 - lot of traffic , foot , bike , everything going through there and you 're going to displace a lot of wildlife and it 's just not , I don 't believe we should have paths put everywhere . I think as referring to , I think it 's page 6 of _ the staff memo , under landscaping and tree preservation . The second paragraph beginning with the northern portion . It says the northern portion of the site which includes the storm water ponds and the wetlands should be left in it 's natural state . I agree 100% with that comment . In - addition , on page 8 , under planned unit developments are to encourage the following . Preservation of desireable site characteristics and open space and protection of sensitive environmental features including steep slopes , - mature trees , creeks , wetlands , lakes , and scenic views . I would like to see that the development is looked at in those particular areas . Farmakes : Can I ask a question? Dave Callister : Sure . - Farmakes : Do you own the property that 's adjacent to the pond area or the slope area? Dave Callister : Right . Farmakes : Were you aware when you purchased the home of what the opposing property was zoned? Dave Callister : Yes . - Ahrens : Thank you . Would anyone else like to address the Commission? Greg Hrometka : My name is Greg Hrometka . I live at 7580 Canyon Curve . It would be the lot at the very top of the proposal there . Not touching the pond but right adjacent with the area . We bump into Kerber as well as Saddlebrook . Or Canyon Curve . What I 'd like to understand is just the clarification , this natural . What 's the definition of a park? Does that - have to be developed with swings or just a natural area? Is that also a park consideration? Aanenson: I 'm not sure what you 're asking . Greg Hrometka : What is the definition of a parkland? Ahrens : I think what he 's asking is when we identify , and correct me if I 'm wrong . We identified the property as parkland , do we automatically see that as a developed , ballpark? Aanenson: No . We saw that on Stone Creek . We did a subdivision just recently where we left it natural . There 's a bluff area and passive . Greg Hrometka : Okay . That brings me back then to something I heard in the issue before this . This gentleman over here talked about the truth . I know when we purchased , we had the understanding that there was land purchased directly to the south of us which involves the trees , the bluff , and that area there that was in the process or was going to be designated as parkland . Land was purchased for the purpose of being park and park as Planning Commission Meeting July 15 , 1992 - Page 24 I see as a natural habitat . Can be now . So I just want to know that people all bought in this area with that truth being known . That I assume most people did you know that this land to our south was for that . The other thing would be then , and related to that too is the need then of this volume of space and buildings . I guess Mr . Johnson 's figures for the occupancy of rental space needed , I don 't see , I would like to see the need , if it could be scaled down to still incorporate the truth of having — this parkland that was here . There 's an area that 's on the board , the triangle space . . .that encompasses right here you know . That 's the main area of my concern solely all the way through . You know . I mean do they need to put more rental units in that area or they could scale it down . There 's all the factors with the congestion for schools , etc . that you 've heard and are going to hear . That 's the issue thing . And on an emotionally charged thing , we received last week notification from the Lotus Realty that stated the number of units and a map of the area involved . Without being too pointed , I think there 's , this form that you all had . This area , this triangle is not addressed at all . Three 16 units . Nine 8 unit owner occupied . This just seems like total deception I think in a way of swaying or disswaying the public to showing up and expressing their concerns . That 's all . Do you understand? Resident : I think what he 's trying to say , the realty company did not . . . Aanenson : The staff put that notice out so he had nothing to do with that .- The Planning Department secretary put that out and it was an error . Resident : It doesn 't matter who put it out right? I mean that 's just a message that . . . Greg Hrometka : I think if it were more clear , you 'd have more people here voicing their disapproval . Resident : It only shows half the units . . . Aanenson : It gives the total unit count doesn 't it? Greg Hrometka : No . Resident : Three 16 units . That 's 48 . 9 x 8 , that 's 72 . 48 and 72 . Resident : Plus , it . . .third of the property too . Emmings: Well , there will be another public hearing . Aanenson : Yes , there will . Krauss : Certainly this is , again . This is not the official public hearing . There 's another notice that goes out when that happens . We also require posting of signs on the property . There 's also notices in the newspaper . We also mail notice to everybody within 500 feet . Obviously it 's not a perfect system and it needs to be refined but we do our best to — notify everybody of everything that 's going on . Planning Commission Meeting July 15 , 1992 - Page 25 Ahrens: This isn 't the last time we 'll see it either . This is , this plan is going to change 100 times before it 's finalized I 'm sure . Those of you concerned with the trails and the parks , I suggest that you attend the Park and Rec Commission meetings when they review this proposal . They haven 't looked at any of this yet . Resident : Will there be a mailer on that? Ahrens: I don't know . Paul , will there be a mailing on the Park and Rec Commission? Aanenson: I can tell you the date right now . It 's July 28th . Ahrens : July 28th . Krauss : Actually , I think they . . .doing that about a year ago . When is that? Aanenson: July 28th . Resident : Can we request a mailing on that? Aanenson: Certainly . Ahrens : It 's also in the Villager . Resident : Yeah but the Villager . . . Krauss : Yeah , we ' ll get the notice out . Mike Henke : My name is Mike Henke . I live down on Canyon Curve also . The gentleman on the end , when he asked if were we aware what that was zoned on the other side of this? I believe yes , we all were but I believe we were all told the wetlands and the hillside would stay as they were with nothing - ever happening to them . The only construction that would ever take place is on the other side of these trees . . . Farmakes : When you 're referring , we were told . Are you talking about the developer? The realty agent who was selling . Mike Henke : My realtor . . . Farmakes : The City? So you came in and talked to the City . - ( There was a tape change at this point in the discussion . ) Ahrens : As Steve 's pointing out , there 's no development except for the possibility of a trail on the other side of the oak trees . Farmakes : So you 're referring to the trail itself? - Ahrens: Alright . Would anyone else like to address the Commission? Otherwise we ' ll close the public hearing . Planning Commission Meeting July 15 , 1992 - Page 26 Christy Kuckler : I 'd like to read my letter . Ahrens: I think we have your letter . Are you . Christy Kuckler : Christy Kuckler . Dear Kate Aanenson . My name is Christy Kuckler . I 'm 9 years old and I am writing to you because I am worried about where you 're going to put the apartments . I live right next to the Oak Hill Ponds . We see deer almost every night and we think they live in the prickley ash bush . There is a doe and a fawn . If you put the apartments there , they will die because you might cut down the food they eat and that might be the last of the food . I do not like where you are going to put them because I don 't like other kids on my property unless I know them and I am with them and I think I speak for my neighbors too . Do — you know that old farm? Why can 't you knock it down and put the apartments there because there is plenty of room for them to build there . If you were a fawn , I don 't think you would like it if some big giant came and picked _ up your house and moved it 3 miles away from where you lived so that he could live there and put in a store . Sincerely , Christy Kuckler . Ahrens : Christy . This is a great letter and you did something very important tonight by coming here and telling us all about your concerns . Thank you . Jack Thien: Hi . My name is Jack Thien and I live at 7570 Canyon Curve . One of the things I wanted to bring up was that prior to my wife and I purchasing the land that we now own , we asked around and I did not go to the City itself to ask what was going to be done behind there but I was told by a couple realtors , one of which is my friend , that it was designated as parkland area and that there would not be any building up there on that hill , particularly where that wedge is here . Ahrens : Can I stop you just a second? Jack Thien: Yeah . Ahrens : I don 't think there is going to be any development on that hill . Jack Thien : There isn 't? Residents: Three buildings . — Ahrens : Okay . I thought you meant on the north of the oaks . Resident : No . There 's 5 buildings in this triangle section . Jack Thien : Yeah . And my land or my house faces directly in that direction and I 'll have , actually out of my deck I 'll be staring at two large buildings that will be facing there and there will not be any large oak trees to screen those two large buildings . Another thing I could probably bring up right now too is that when I first got this notice , perhaps not unlike some of the other people here , looking at this where it says Chanhassen Park , it is difficult to see that there 's a little arrow there that points to the park across Kerber . And when I read three 16 unit rental buildings and nine 8 unit owner occupied , I thought well you know Planning Commission Meeting - July 15 , 1992 - Page 27 - it 's not any real big deal . I already had plans for another meeting tonight somewhere else but when we got to talking to some of the other neighbors and some of the agenda that was to follow , I think it is a big _ deal . That 's why I 'm here tonight . I don 't know if anybody here can address some of these questions I might have but on page 3 , second paragraph where it starts . The second major deviation comes in the area of park dedication . The original Cenvesco proposal did not incorporate public - park dedication . However , during the course of the review , the Park and Recreation Commission ultimately determined that park dedication would be appropriate and additional land was acquired for that particular purpose . And it goes on to say that it covers approximately 3 acres located in the northern edge of the Oak Ponds/Oak Hill project area . A little further down it says , in lieu of this the City would be perhaps accepting a cash dedication as opposed to that parkland . I personally am opposed to that . I don 't know how other people feel about that in here but I think in the future , in the next meeting you ' ll probably hear more about that . - Aanenson: Can we give some clarification on that issue? Ahrens : Yeah . Could I just also say that , this Commission , we don 't deal with the park dedication . That 's something the Park and Recreation Commission . We 're different unions . Jack Thien: No , I understand that but I 'm saying , that 's my concern is - that originally it looked at though this was going to be purchased as park , or was purchased as parkland area and that 's where the assumption that when I , before I moved in here , when I talked to people , that was the assumption that that was going to be left parkland area and there was not going to be any buildings there . Had I known that , I probably would not be here tonight talking about this or owning that particular piece of property which I paid a great deal of money for . Ahrens : Okay . I think Paul wants to address your concern here . - Krauss : Yeah , I think we need to set the record straight . Three years ago there was a series of proposals by a different developer for what was frankly a pretty bad project . That project had apartment buildings with drive under garages . Your typical 3 story apartment building . They had buildings that were much larger than this . The ones being proposed here and it flatten most of the trees on the site . At that time , on that proposal , the City was going to take parkland dedication in the area that you outlined . In fact , we included that in the packet . This project was never approved and we don 't typically buy the property . We get it for free on the platting process . We never got it because the project died . But it - was a horrendous project that was , yes . It had park but it trashed the site at the same time . This is a different project . It 's at a lower density . It 's providing private recreational facilities in terms of a pool _ and a totlot and a community building that the other one never even thought of . It 's saving all the oak trees on the site which I think is everybody 's mutual goal . And you know , if the Park Board agrees to it , it 's going to pump $150 ,000 .00 into the park fund to develop parks that are used by the - neighborhoods . This is , whether or not this park here is ultimately the Park Board 's call but they note that this area is in the service area of 5 city parks . Now the city can always take another park if it so chooses but Planning Commission Meeting July 15 , 1992 - Page 28 again , it was never approved . We never got the property and it was a horrendous project that it was associated with and I don 't think you would have been any too comfortable with it had that taken place . - Jack Thien : Well and I also probably would not have purchased the land in that case either because that would have been prior to me . Krauss: Right . But when your realtor friend told you about the park , he should have also told you that that was the project it was associated with because that was on the drawing board at that time . - Jack Thien: Yeah . Well you know , it 's interesting because some of the things I 've had to work with the city about , talking to some of the staff _ that I wish I would have gotten a few more things in writing . And there is one question that arises to me now . Perhaps I can ask Kate . I don 't know . I had talked to you yesterday . Called you on the phone about designating or that particular two ponds being part of the wetlands . Can you address that at this time? Aanenson: It 's a really complicated issue . We do have a storm water management committee and we 're relooking at the way we 've classified wetlands in the past . In the past when we 've required that a retention be built , even though it was not historically a wetland , it may take on wetland characteristics . Therefore , we called it a wetland . I think it 's been brought up in the discussion today . Those ponds were created to hold water . Storm retention ponds . It 's my understanding that we 've treated those as wetlands and told people they have to maintain that 75 foot setback and I think I told you that we 're in the process of relooking at how we classify wetlands . We 're rewriting our whole wetland ordinance . And as far as what we call ponds , we may treat differently than what we classify as wetlands and that kind of plays into that . Jack Thien: Okay , so right now it is or isn 't a wetlands? Krauss : Right now they are . Ahrens: You mean tonight? Krauss: Actually , I mean this is the same situation as it is in Curry Farms . What you had there is you have an area that is legitimately a wetland and undoubtedly would be qualified as a wetland under the new City ordinance and under State law . Then you have these two ponds which were constructed in the low areas but they were constructed with a specific purpose of ponding storm water . The fact of the matter is , you pond storm water long enough , cattails grow up and you can interpret that as being a wetland and that 's what the City Council did at that time . Our staff opinion , because that 's all it is right now and the opinion of the committee that 's working on the ordinance , is that puts a pretty severe hit on the property owners in terms of setback requirements and probably is not appropriate . But that is what we 're looking at putting through in the new ordinance which has not been adopted yet . So right now , yes . It is still defined as a wetland . Planning Commission Meeting July 15 , 1992 - Page 29 Aanenson: And the reason is , probably for the same reason you maybe have called the City is the people that build next to storm retention ponds have the problem with the 75 foot setback . When they go to put a deck on or those sort of issues . And some of you may have had that experience so - that 's why we 're trying to separate ponds from wetlands . So people that do want to put decks on or swimming pool aren 't faced with that burden of maintaining the 75 foot setback . Jack Thien : Okay . Resident: So it all just depends . . .when you decide to buy land . . . Krauss : This is an ordinance that 's been in place for 8 years and it hasn 't changed during that time . Emmings: But he 's right . Definitions of things do change and have changed and they change pretty dynamically here because we 're a rapidly growing community . But you 're right . Things not only change from day to day but they go back and forth . I 've been here long enough to have seen things go , be called something this year . Something else next year and go back to this a year later . It 's very dynamic . It may not make sense but that 's — the way it 's going . Resident : And you can justify that? Emmings : I don 't have to justify that . I 'm telling you that 's what it is . We do the best job we can at the time and we get more information . We get different problems and we could take a position that gee , we made this - decision . Let 's stick with it forever . Or we can say , in light of new information , we 've got to change what we did . It was wrong so we change . - Jack Thien: Okay , if I can continue . We had a short meeting last night and some of the concerns that were brought up , one thing was the increased traffic near the school . And if anybody can explain to me what this TIF is that 's in the proposal? Krauss : Well I can do that . TIF is an acronym for Tax Increment Financing . The city has several tax increment financing districts . It 's a tool that communities use to induce , either induce development to occur or get better quality development compared to what we would have gotten otherwise . It allows you to do things like build streets and utilities and absorb some of those costs . The applicant has indicated that he intends to apply to the Housing and Redevelopment Authority . That 's who administers the program for financing support . Underneath that , there have been no discussions or commitments or anything that 's taken place on that score and frankly the HRA hasn 't seen it yet so that 's something that the applicant 's going to have to make a pitch for in front of them. It was used on the other apartment project . It is being used on Market Square . It 's being used in - the industrial parks . Jack Thien: Who does that particular , I 'll say help out or benefit? Krauss : Well it does a couple things . First of ail it 's predicated , well I could digress a little bit about what it 's supposed to do . If you have a Planning Commission Meeting July 15 , 1992 - Page 30 site that 's generating $100 .00 in taxes a year and if you put a development , like development X and it 's going to generate $1 ,000 .00 in taxes a year , you 've got an increment of $900 .00 a year . So the City 's getting more tax revenue off the site . The TIF program , as allowed by the State , lets you take the revenue , sell bonds and do improvements . Now the improvements are supposed to , well there 's a whole list of things that you can do with it but you can promote employment . You can promote housing diversity . You can take care of hazardous waste . You can build utilities . Those kinds of things . The City has also been using tax increment financing to demand better quality development than we might otherwise be - able to get . I mean our City ordinances establish a lot of minimum criteria and the TIF financing allows the city to demand going the extra mile beyond the ordinance . Again , it 's not in any way a done deal . The HRA doesn 't even know about it yet and we , I mean staff has not talked to them about it . We haven 't had sets of conversation . Ahrens : Just a concept . Krauss : Right . Jack Thien: Another issue that was brought up last night was , if anyone might want to make a comment on the decrease in the property values because of rental units being so close to the Saddlebrook subdivision . Ahrens : I certainly can 't address that tonight and I don 't think anyone can . The County Auditor would have to come in and he wouldn 't have an answer either . Krauss : No , it 's a very , obviously a very emotional subject . I mean I 've seen most of the data that I 've seen says , it doesn 't make any difference in the long run . But you know , it wouldn't be , if this project was built 3 years ago before the homes were built down below , it wouldn 't be an issue . I 'm not sure how to address it . Resident : No . If this would have been done 3 years ago , that would all be parkland there . We 'd still be looking at natural habitat or parkland . We wouldn 't be looking at apartment buildings . . . Krauss: Well depending , I don't know how the site plan would have laid out but you would have been looking at a higher density development . Resident : It wouldn 't be on top of the hill . Krauss : It is up on top of the hill . Resident : No . There are 5 buildings . . . Those are the 5 buildings that . . . Resident : Paul , I 'd like to invite you to my home to look out of that window so you can see exactly what we will be looking at because it 's very . . . Krauss : Well we 'd sure take you up on that . I know that Kate and I are both in the neighborhood a lot and sort of walk back there . Planning Commission Meeting July 15 , 1992 - Page 31 Emmings: They like cookies so you 've got to offer them that . Resident : Another thing I was going to mention is that these 40 feet tall structures are going to be put on a hill at a rist of at least 30 or 40 - feet high so it 's not 30-40 feet . It 's going to be 60 to 80 feet above our property . That 's definitely going to be a wall . Resident: There 's a big difference between a two story walkout home and . . . Ahrens: If you 'd like to address the Commission , come up to the podium and give your name . So she can have it for the record . You have the floor , do - you want to continue . Jack Thien: One thing I do want to mention about being so close to the two = ponds . I think it was a week and a half or even 2 weeks ago that we had a rather large storm that came through and it rained quite a bit . I just want to kind of reiterate that when that water does come through , it does not only come through like off the street and into the pond . It also comes from the somewhat impervious surfaces . Whether it 's got grass or weeds or whatever might be on there and it filled up that pond in a hurry and it went up above the large outlet pipe . Okay . And in particular it has done - that more recently since that one berm that was moved back towards Kerber a little bit closer . There was more water that rushes down through there and there 's a sizeable gully is starting in my backyard already from that . So I hope that you take that into further consideration also . Ahrens: I think Kate and Paul said earlier that that 's something they 're going to be studying . Jack Thien : I don 't know , I 'd like to invite anybody else that has a comment up here . I mean it 's scarey but come on up . Ahrens : We 're not so scarey . Does anyone have anything different or additional or that we haven 't discussed yet tonight? Cindy Hrometka : Hi . My name is Cindy Hrometka . I live at 7580 Canyon Curve . I just have one thing I want to point out . In 1989 there was a proposal on the table and we 've got copies of that too and I know there - were a number , a list of major concerns with that proposal and I 'd like to go through a couple of them and kind of address them . The first one was density . In the old proposal there was , it was going to be 200 units at a density of 9 .6 units per acre . The new proposal is 240 units with a density of 11 .5 units per acre . So the density has increased . It has not decreased so that concern is still there . If it was a concern then , I wonder why it 's not now . I think it should be . The next one was - impervious surface . The old proposal had an impervious surface , average or whatever , of 35% . The new proposal has an impervious surface of 38% and that 's before you increase the road . Before you add sidewalks . Before you - increase the parking so the impervious surface is going to go up more than 38% . So I 'd like to know why , if that was a big concern then and this proposal didn 't go through , it should still be a concern now and I think we should continue to look at it . The other one , the next concern on their list was parkland . And the old proposal did dedicate that 5 acres for parkland . This proposal doesn 't dedicate any parkland . They do have a Planning Commission Meeting July 15 , 1992 - Page 32 totlot that 's going to be used by the residents but it doesn 't dedicate any other parkland so I 'm concerned about that . Access points off of their lane , that 's all different so I can 't address that . I don 't know if it 's better or worse . Emergency access , I don 't know if that 's better or worse . The landscaping does appear to be better in this proposal but it 's hard to tell because we don 't know what size those trees are they 're going to be putting in . And the oak stand that they 're talking about , I am concerned about how many of those oaks will survive the construction . You know you say the drip line is going to protect them . As long as you 're outside the drip line but it is a concern that those oak trees will stay there . The old proposal also , if you 'll notice , did keep that whole oak stand . The dark green oak stand that they have been discussing . The old proposal got rid of most of the oak trees up on top of the hill . So it lost 11 of the trees that this one 's keeping . This is better obviously but the oak stand remained in that old proposal so it 's not like they were going to come in and get rid of everything and then start from scratch . And the concept plans . These look like nice buildings but I can 't compare the concept plar to the old one or the new one . My concern is , I don 't think this proposal is that much better and in many cases it 's worse than the old one . The old one got shot down and there was many comments throughout here that staff didn 't like it and that there 's no reason to give any kind of leeway to the developer because the plan was not good . If that plan wasn 't good , I don 't think this one is either . Ahrens : I think the biggest difference was that the old plan had large apartment buildings of 30 units apiece or something . Krauss: Well actually , I can 't read my , it was a 60 or 90 unit building so that was , where you see that big green swath over there , that apartment building sat at the bottom of that . Cindy Hrometka : According to the map , I think it showed that the apartment building was going to be up on top and that would come . . . Krauss : No . No . Cindy Hrometka : That 's the one I 'm looking at . The apartment building 's — up here and that was . . . the rest of this was townhome . I don 't think the old one was a good plan either and I 'm not advocating that plan except that that plan did stay up on top of the hill and I think for all the residents of Saddlebrook , as long as the development took place on top of the hill , behind the oak trees we would not have as big a concern . But since it 's coming down the hill right into our backyards , it 's a big concern for us and I 'd like to see some of those things addressed because they were problems then . I think they should be now . I would like to go on the record with the tax increment financing . I know it sounds like you guys don 't address that but I don 't see why we should have to have our real estate taxes paying for land improvements for something that we probably , I don 't think Chanhassen , being the growing community we are , that we need to provide tax increment financing to attract people here . Obviously we 're growing and that 's going to happen . That 's something we can probably address with the HRA but I can 't see why we should be giving tax increment financing for this . It looks like , this will provide , bring in 500 more people is kind of the guidelines that I 've been hearing and what we Planning Commission Meeting July 15 , 1992 - Page 33 figured . So I am concerned that there 's that many people in such a dense - number of people in that small area . Which brings me to a third point here . The school is right across the street from this area and if you have 500 additional people in this small area , you 're going to have a big increase in traffic and I think some other people did address that but that 's going to be a big concern with our kids walking to and from school . There 's going to be a big , busy intersection and there 's going to be a lot more traffic and a lot of kids going to and from school . Everybody in this development I 'm sure will walk to school so we 're going to have a problem with getting across Kerber and across this new intersection that they 're talking about . So I 'm concerned about that and I 'd like to have that on - record . That that is , I think will be a problem . I think that 's it . Ahrens: Okay , thank you . Anybody else? Is there a motion to close the public hearing? Diane Bohara : Hi . My name is Diane Bohara . I live at 7510 Canyon Curve and my husband and I have lived in the area , it will be 3 years this fall - and our house was built and lived in prior to us living there . But it was touched on the times for building . The time restrictions . Eckankar is directly behind our house and while it 's a nice area . It 's a very nice building and everything . Nobody knocks on my door . Nobody bothers me now that it 's in . When it was going in , it was a real hassle for us . They would start with bulldozers , earthmovers at 5: 00 in the morning and while I didn 't mind that so much during the week , it really bothered me on the weekend and being there was no restrictions , the police could not do anything the couple weekends I called , until I called and harrassed the city . And I don 't want to have to deal with that again . Ahrens : We do have an ordinance that says that the construction has to take place Monday thru Saturday between the hours of 7: 00 and 5:00? Aanenson: I 'm not sure if it 's 6:00 or 7 : 00 . Ahrens : I 'm living right now across the street from a large construction - project and I monitor that very closely . As a matter of fact , this morning there were trucks out there at 6:00 a .m . but that 's something I ' ll take up with the city later . But I agree with you but there is an ordinance on our - books that does regulate that . Cindy Hrometka : Okay . Well , thank you . Ahrens: Anyone else? Randy Swatfager : I was the first one up so , if you remember me . I think - with all the experience of the Planning Director and the vast experience in the back of the room here , addressing this property values should have , I mean in your past experience , what has it done to the property values adjoining your developments? Brad Johnson: Property values? - Randy Swatfager : Yes . The private homes . Planning Commission Meeting July 15 , 1992 - Page 34 Brad Johnson: Historically it 's remained the same . Randy Swatfager : Historically? I mean just lately or? Brad Johnson : Again , I 'm also a realtor . . .significant decrease in any properties . Randy Swatfager : What 's significant? Brad Johnson : 5% . Randy Swatfager : 5% of $150 ,000 .00 home? Brad Johnson : I 'm just saying , I don 't think . . . I can 't say . You 're welcome to look . . .but I 'm just saying . . . Randy Swatfager : Well I 'm just looking for a general . Brad Johnson : . . .any realtor that in general , a well planned project . Your lot , . . .aware from the very beginning that there would be a high density project . . . Randy Swatfager : Would there be a reassessment if , taken into consideration at 5%? Ahrens: He doesn 't have any idea . Randy Swatfager : I 'm just asking on his past experience with his developments . Ahrens : He wouldn 't have any idea , yeah . You 'd have to call the County Auditor . What 's his name? Aanenson: Assessor? Krauss : Orlin Schafer . Ahrens : Orlin Schafer . Randy Swatfager : How about the planners? Do they have any past experience- with this situation? Krauss: Well again , I mean what Brad 's told you I 've heard throughout the _ years . That it doesn 't have any substantial effect . I know you 're not going to believe me and I don 't have any data to show you but that 's what I 've heard and that 's over the course of 15 years . Now if you happen to ' share an alley with a lousy apartment project in South Minneapolis , yeah . - You 've got a serious problem . Randy Swatfager : The only way we 're going to find that out is when we sell _ ourhome , is that right? Krauss : There 's an apartment development in downtown Chanhassen that backs up to single family homes . I don 't know that it 's had any impact . I 've Planning Commission Meeting July 15 , 1992 - Page 35 certainly never heard of any . Randy Swatfager : Will there be study done on that? Krauss : No . It 's impossible to do one . How can you do a study of something that hasn 't existed yet? I don 't know Brad , if the realtor 's association has ever done anything like that but I 'm not even aware how you 'd come by the data . Brad Johnson : You 're talking about value and assessed valuation . The assessed valuation is based upon the next sale in the neighborhood . Randy Swatfager : Exactly . So we won 't find out until after these sales . Brad Johnson : . . .that particular issue . . .when we did all of downtown . You guys probably don 't remember downtown used to look like . Home value have actually gone up . . .because we did a nice job . . . Randy Swatfager : According to your calcuations and according to you . Brad Johnson: No . . . Randy Swatfager : I guess that 's what we want to maintain here so we 're just looking for a little foresight from everybody . Brad Johnson : I live here . . . Randy Swatfager : . . .I 'd just like to invite the Planning Commission . . .and it looks like one up there . Like I said , it 's going to be very emotional and being part of it , it 's going to continue on so I 'd just invite you come down and actually take a look at it , if you haven 't . Anybody involved , I 'm sure they have . I don 't know if the Planning Commission has . Ahrens: I 've seen it . Farmakes: I 've driven by it for maybe 12-13 years . Randy Swatfager : Does it look like that? Farmakes : Does it look like that? Ahrens: Well that looks like a leech . Farmakes: No , I 'd say the density ground cover is probably a little bit less than what it 's showing there but that 's an artist 's interpretation . It 's probably made from an overhead aerial view which sometimes when they 're shooting the pictures , the shadows on the tree get a little hard to discern where the shadow is and where the tree starts . It 's a heavily — forested area as far as what the City terms as heavily forested . And a lot of the underlying brush was all beat out at one time . Eat out or whatever because a farmer used to run cows through there . The cows used to come in before they put all that berming in there and actually come underneath the road there in the culvert pipe and they pretty much , they were like lawnmowers . Pretty much eat out everything underneath there but it 's kind Planning Commission Meeting July 15 , 1992 - Page 36 of grown back in the past a little bit and it 's a nice stand of trees . There 's no doubt about it . Randy Swatfager : Okay , thank you . Ahrens: Thanks . Okay , anybody else? Shelly Geske: My name is Shelly Geske and we 're currently building on 753( Canyon Curve . We 're not even in our new home yet . My question is , the area that you 're proposing to develop , who now owns that land? Is it privately held? It is . What about on the north side? The big slope and down into the pond . Does the City of Chanhassen own that land or that is also privately held? Brad Johnson: Take a good look at the map . We own , or the partnership owns all of this . The wetlands , most of the water . . .property that we currently use . . .as they pointed out , because they classified it as - wetlands , the developer who 's involved in the project agreed with the City that this would be a non-developable pond . . . I guess the trail . . .that 's my idea . Because I run through there and I always wanted to run along that creek . I 'm not saying that 's a good idea . . . Shelly Geske : But certainly you can understand our feeling as far as that hill is concerned . I didn 't say that you did have a problem with it . I 'm - just pointing this out . Brad Johnson : Right now . . .an issue I don 't think the developer . . . Shelly Geske : How long , since as of what date have you owned that particular property? Brad Johnson: That property there? Shelly Geske : Yeah . Brad Johnson : The group has owned it for 4 years . Shelly Geske : Now I can say that when I bought that lot , we bought it fron an older couple that had purchased it several years . Well we actually bought the lot in 1990 from an older gentleman . Farmakes : The lot at your home? Shelly Geske : The lot that we are currently under construction with . And - I did call the City of Chanhassen . In fact I came into City Hall and I believe that I spoke with Kate . I walked into someone 's office and I said , well can you tell me who owns that particular grove of trees and down into _ the wetland areas and it was my understanding that the City of Chanhassen owned that area . Now am I wrong? Ahrens : You 're wrong . Shelly Geske : Okay . Planning Commission Meeting July 15 , 1992 - Page 37 Ahrens: You may have been given that impression because there wouldn 't be any development in a wetland area . Shelly Geske : Yeah , I mean I was under the impression that the City of - Chanhassen owned it . It was dedicated as parkland and okay . ( Brad Johnson was speaking from the back of the room and it was hard to pick up what he was saying on the tape . ) Brad Johnson: Yeah , I can speak to that . . .present it . I 'm not a realtor . - Emmings : You are too . Brad Johnson : . . .unbuildable is immediately classified as . . .city owns it . - And it was presented I think way back when we started selling homes back there that that was an unbuildable area . _ Shelly Geske : Well certainly I can almost quote my realtor saying , yes . The City owns 5 acres of oak trees and it will never be built upon . Ahrens : You 're not alone in this . Resident : That 's what we were told when . . .realtors . _ Shelly Geske: And unfortunately it 's their misrepresentation that we 're paying for now . Brad Johnson: There is 5 acres that will not be built on . Shelly Geske : Right . Okay . - Brad Johnson: . . .the path , like I said is my idea and it doesn 't have to go any farther than that as far as the developer is concerned . _ Ahrens: But like we said tonight , this is a conceptual plan . They 're just bringing the idea out for the first time and we 're just hasing over all these ideas and nothing is written in concrete . That 's for sure . - Brad Johnson : . . .we 're just trying to do a good job . . . One thing we can 't do is not do anything . Ahrens: We have somebody else with the floor up here okay? Shelly Geske : I would just like to say that , you are Mr . Johnson? Brad Johnson: Yeah . Shelly Geske : That obviously you realize why we 're opposing this but you - know that it 's not that we 're against you or we 're against this development . But I mean obviously there 's concerns . Brad Johnson: Planning Commission Meeting — July 15 , 1992 - Page 38 Ahrens: Again , the issue of the trail should be brought up with the Park and Recs . Shelly Geske : With the Parks Department . Alright , thanks . Ahrens: Okay thank you . Anybody else? Bob Bohara : I 'm Bob Bohara . I live at 7510 Canyon Curve . They 're saying that that 's unbuildable land there . Ahrens: Where the wetlands are? Bob Bohara : Where the oak is . Where the wetlands are and you talked earlier that you 're talking about redefining what wetlands are . Does that mean that this company can come in later then and build on that land if you redefine what a wetland is? Krauss : No . If this project proceeds forward , any project proceeds forward , we treat the area the same way . What we 're going to do is we define a conservation area . Tree conservation area and you can never cut through them so that privately held property , this project would own it but— the City would have the authority to make sure that nobody ever goes in there and chops it down . It 's not a buildable area . We do the same thing with all the low wet areas . We take conservation easements over them . Wetland or not wetland . . . it doesn 't matter . So at that point , what you heard from your realtors would come to pass . That this area would be . . . Aanenson: It would be recorded as part of the development agreement and recorded at the County Recorder 's Office . Resident : Is there currently a conservation easement there? Krauss : If there is , it may be on the back of your properties because that 's the only area that was platted . Bob Bohara : So what does that say? That he can then because there isn 't anything . Right? Aanenson: That area hasn 't been platted so I wouldn 't assume there was . Bob Bohara : So what we 're saying is that that 's not necessarily unbuildable . At this point tonight . Krauss : No . Aanenson : We 're recommending that it not be built on . That 's part of our . Bob Bohara : I would also recommend that too . Krauss : There 's also a substantial amount of water there . Part of it is , the bigger part is a protected wetlands protected by City Ordinance and State law . The retention pond , theoretically maybe . While they 're still defined as wetlands , but maybe they could be moved but then the developer Planning Commission Meeting July 15 , 1992 - Page 39 - has the obligation to move the water someplace else on the property and has no place else to put it . So practically it 's necessary . Emmings: Also , a bulldozer can build anything anywhere . And so yeah , we 're trying to save some features of this property because we know we can 't save the whole thing . - Bob Bohara : As I understand the only outlet for those ponds are the wetlands . So if you do anything to the ponds , it will affect the wetlands because that 's the only outlet . Aanenson: But those ponds are supposed to be pretreating , holding sedimentation so when water goes into the water is treated . I mean into the wetland is treated . Bob Bohara : Okay . The other concern I have is in the construction of this . They 've talked repeatedly about the . Ahrens: Would you hold it down back there Brad . Bob Bohara : The difficulty of building on these and they phased it so that the most difficult part is built last , as I understand . Well , I 'm not saying that 's the reason . I 'm just saying that 's the way it turned out in your plan which means what they can do for putting the dirt . What they can do for the construction equipment and stuff , becomes more limited in that area . And then they 're building the largest , highest buildings on the steepest slope . And they 're coming right down to the drip line of the oak - trees . Okay . You stop construction right there at the oak trees but that dirt on this high slope isn 't going to stop there . You 're going to lose some of those oak trees . Probably not then but later . And they haven 't talked about erosion control . A lot of construction . Not at the top of the hill but starting to come down because they 're coming down on that steep slope there . They don 't talk about what they 're going to do to that . That 's going to all run down into the wetlands and into the holding ponds - too . So those are my additional concerns . Ahrens: Thank you . Terry Woogmeester : My name is Terry Woogmeester . I live at 7461 Canyon Curve . My biggest concern , and I understand from listening to you , is the oak trees . May I recommend that maybe we put an incentive or the City place an incentive on , you know you can 't replace it and it 's value is lost but maybe if you put an incentive there , there will be peace so that they will avoid them because I have watched large equipment , and I don 't believe — avoiding from the drip line will stop it because you will crush the roots that move out and it will take a year or two but you ' ll lose them . Ahrens: Yeah , I agree with you . Terry Woogmeester : So I think maybe if you put an incentive on the trees so that whoever is doing the development has to pay for the loss of any - trees , you might incept them to avoid that and they might do a setback . Planning Commission Meeting _ July 15 , 1992 - Page 40 Aanenson: That 's standard in the development contract . That they would have to put a surety up for that . Emmings: They 're also required to fence , put up a fence and I don 't know _ where the fence goes but to avoid the problem of backing equipment up under that drip line during the construction , we have them fence these trees . Krauss: And typically it is the drip line . However , we often call on Alan Olson who 's the DNR Forester to come out and walk sites with us and establish where those no cut lines ought to be . Ahrens : Does he come out and check once the construction 's started too to make sure that that 's being maintained? Krauss: At that point , unless there 's a question that 's arisen , it 's usually our engineering department that 's out there . Terry Woogmeester : But if there 's an economic value tied to it so that it - maybe makes the development non-profitable should they take out that nice section of oak trees , you might avoid a disaster before it happens . Ahrens : Okay , thank you . Anybody else? Mary Anderson: I 'd like to speak as a mother . Ahrens : Name . Mary Anderson: My name is Mary Anderson , 7550 Canyon Curve . Aside from all of the technical things , I 'd like to speak as a mother with young children and a lot of young children in the area watching the wildlife and the nature in that area . As you can see , there is a big concern with all _ the residents of that going away . Those trees go away . The brush goes away . The path near the wetland . Ponds . Wetlands . Whatever you want to call them . I think the core group of residents are very wildlife , nature lovers , if that 's what you want to say and most of the people bought houses— in that area because of that . And the threat of that all leaving kind of crushes your dream of what you have in store for your children and yourself and I think that should be a really big consideration . — Ahrens : Thank you . Anybody else? No? Going once . Okay , is there a motion to close the public hearing? Emmings moved , Ledvina seconded to close the public hearing . All voted in favor and the motion carried. The public hearing was closed . Farmakes : First of all I want to say that I 'm glad everybody showed up here tonight . That 's what it 's for . This is a preliminary meeting . The concept to help the persons who are developing the property to also understand what your concerns are . We 've certainly heard them here tonight . This is how that process works and in particular with the PUD . We 've been playing with this , the City has for quite some time and I think this is kind of a good example and it 's a good experience for me because I haven 't been on here that long to see how this works . I was not on the Commission when the previous development came in . It seems to me that this Planning Commission Meeting - July 15 , 1992 - Page 41 • is a good use for PUD . It allows some leeway with the developer to make accommodations for some of the property that you 're talking about . The trees . The wetlands and so on . Going back to a little bit of history into _ this property . I happened to be here the night in the early 80 's when former Mayor , Mr . Hamilton and the previous City Council dealt with the rezonement for the farms that your houses are presently on . And at that night there were people who came in and complained that those farms were - going to be developed into houses and there 's sort of a natural process that you see on how these things go . Everybody has their own dream and the problem with the City , particularly when a lot of people come out in a short period of time , to try and deal with these different dreams . Sometimes it gets a little tough because you have to make a decision one way or the other . On the property that you have in Saddlebrook is on , on that night , originally it was proposed that that be medium density property . The entire piece because of how Chaparrel was developed . There was a big argument . The single family neighborhoods didn 't want that to be that way . So there was sort of a horse deal cut that it would be medium - density , single family . Sort of like how Chaparral was but the area below the pond would remain to be high density . And that 's the way it stands today . This was several years before , from what I 'm hearing right , several years before many of you moved out to that particular area . As far as I know , it always has been since then . And they hit a peat bog in the area where Saddlebrook is and they brought in some buffer area of non-single family homes that border Chaparrel . It went down 20 some feet into the ground so they put in that little lake there . Anyway , originally there was supposed to be , similar to Chaparral , a buffer on that night is how they sort of described that . There 's supposed to be a buffer there . A buffer . There were some comments made about a buffer between the high density area and the single family homes . Well obviously the economics of the developer , they sort of figured out well , we can sell . It 's a nice area . _ It 's a nice trees . Nice ponds . We can get more money for this land . And consequently the buffer didn 't show up . Single family went all the way to area that abuts the high density property . And consequently you 've got a problem . And we 've got a problem here tonight so what happened years back - has now led us up to tonight . I think a lot of the concerns that you made about the issue of the trail , which I don 't think is a big issue here . I think that 's just a thrown in thing and I don 't think that that particularly benefits this particular development . I think it was thrown in maybe as a part of the trail system that the city has been dealing with because CR 17 and Kerber and considered conduit traffic type roads . On the elevation point , you 're right . The elevation shows that there 's about , - maybe a 20 feet drop over the hill . Some of these buildings but . . . And as far as the traffic goes , I don 't think there 's enough information here . I don 't think it 's been to that point where we can make a determination as to - where that goes but I think it 's a legitimate concern and I think I 'm taking up too much time so I ' ll pass on . Ahrens: Thanks Jeff . Steve . Emmings : I think there were a lot of important comments from the neighbors . I 've just got a few comments and questions of my own here . If - the road goes out to Kerber , I think it should definitely line up with , what is it? Santa Vera . I think if the road drops down , I don 't know if they moved those buildings . It looks like they might have moved those Planning Commission Meeting - July 15 , 1992 - Page 42 buildings down that are up there a little bit and I think that was a good change . The buildings most to the right in the upper part . I think that changing that 16 unit building into two 8 's and then the next one into a 12 is an improvement . Overall , I was here . I think I was here when Saddlebrook was platted and I think I was here , I know I was here when the Cenvesco thing came in . I think it 's a big improvement over what we saw before in the style of the buildings and everything else . I don 't think — it 's going to be nearly as objectionable as the other one was . I thought the comment about transition from commercial to single family then to rental . Or not single family but townhouses then to rental and then to _ single family was a very appropriate comment . We do try to do things the other way around . We do try to go from less intense to more intense and I 'm a little curious about that . On the other hand , it seems to kind of fit the site in a way . I don 't know , I thought that was a good comment . I 'm always troubled by these , I know this is only concept approval but now we have one plan in front of us and we 've got another plan in the back of the room and you 're shooting at a moving target and it 's very hard to get your comments down because things are changing while you 're talking and that 's always a little discomforting to me . I have a couple of questions . Looking at the units that are for sale , they showed us a typical building and that was also up here on the small sheet . And that typical building - has 4 garages across the front of it . But I take it that these buildings that are shown on here that would be for sale are smaller than that . Is that right? Kirk Willette : No . . .there are 4 garages . A double car garage here . Two double cars in front . . . Emmings: Okay . Why , on these drawings , I don 't understand this drawing because there seems to be a little street . Look at the area between the second unit , FS2 and the third unit F53 . Just , let 's use that as an example . You pull in off of the new street and why does it show , what are those little dents in the side of the building there? Kirk Willette : Oh , right in here? These are the entrances . Emmings: So there are two entrances in each side? Kirk Willette : Well actually . . .green space between the garages . The other 's not shown on this plan . There are , this is a private entrance to one unit . There are a pair of entrances . . .and then there 's another entrance . . . Emmings: So what 's drawn here is isn 't what it will look like? Kirk Willette : There should be another green space . This driveway . . . Emmings: No , he 's saying there 's 4 garages across there . Kirk Willette : If you look at the rendering , that 's correct . The rendering is correct . Emmings: Okay . And so if somebody in one of these . So there 's 4 garages facing 4 garages across the little street between FS2 and F53 . Is that Planning Commission Meeting July 15 , 1992 - Page 43 correct? Kirk Willette : Yes . - Emmings : And if people have guests over or want to have a party at their house , where do people park? Kirk Willette: Right now there will be parking in front of the garages . There are some buildings that have . Emmings : No . I 'm talking about FS2 and FS3 . Kirk Willette : Okay . On those particular ones , there is nothing . There is 2 spaces in front of their garage . Emmings : So assuming I can get both my cars in the garage , I can have 2 carloads of people over and beyond that , where do folks park? Kirk Willette : It would have to be on the street . Emmings : What street? Kirk Willette : On the . . . Emmings: Alright . Are we going to allow that? Aanenson: No . We recommended , in our meeting with them that they provide _ more visitor parking . They had it all on the western edge and we recommended that that was inappropriate and they needed a space between the single families because of , that won 't work . - Emmings: No . There shouldn 't be parking on the newly dedicated street and I would say that if that probably 2 of those units in the row from FS1 to FS6 to me shouldn 't be there . I think 2 of those units ought to come _ out because they need a lot of extra parking . I think they need more space between them . I think they 're too jammed in there . Let 's see . These places don 't have basements any of them do they? This is all built on slab and that goes for the for sale units? Kirk Willette : The for sale . . .basements . - Emmings : Okay , in our packet it says everything was on a slab . I think , what do we have in place that would prevent people from turning a garage into a living space? Anything? Aanenson: We have an ordinance that says they could do that only if they had another garage so I don 't think they could do it . - Emmings: Alright . So we 've got that covered here . What do we have on the books that would prevent outside storage of any kind , including things like vehicles and boats and things like that? Aanenson : That 's already in the ordinance but if you want to put something specifically in the development contract , we could do that too . Planning Commission Meeting July 15 , 1992 - Page 44 Emmings: You know , if they 're going to develop this site this densely , I think we 've got to have something like that in there because otherwise we 're going to wind up with stuff all over the place and there 's nothing - that will make it look trashy faster than stuff stored all over the place . Aanenson: Or recommend they provide an area fenced in for that sort of thing . Emmings: I wouldn 't even do that . I think they ought to store their stuff inside . I even think , we 've never done this before but I know we 've had - problems in neighborhoods where people have inadequate storage space . They wind up using their garage for storage space and always leave their cars outside . I 've got some of that in my neighborhood . I know this neighborhood over here behind McDonald 's , there 's been complaints over there about that and I think the potential for it here is enormous . Brad Johnson : The thing is , they 're all the same . Emmings: Well it may be endemic to all development . I don 't know . But I think if , I almost think we ought to have an ordinance . I just thought about with connecting this project . That people be able to demonstrate at all times that they have the ability to park their cars in their garage . If a garage isn 't a garage for the storage of vehicles , I don 't know what _ it is anymore . And on a project like this , I think it 's particularly important . Let 's see . There are two pieces of property involved in here? Are they all under , are there two different pieces of property? Aanenson : Yes . Emmings : Do they need to replat to get it all into one or don 't we require- that if it 's a PUD? Krauss : Well a replat is going to be required to combine the properties to_ plat the public right-of-way and then I assume they 're going to do condominization around the for sale units . Emmings : So that will come later? - Krauss: Yes . Oh , and by the way in the plat too , that 's where the easements are conveyed over the . . . Emmings: Yeah . There was a note in here that all units are to be sprinklered and I supposed that again is something that will come later in the . . .design because there wasn 't anything in the conditions here . Krauss : It really doesn 't need to be . It trips it in the Building Code . It 's automatic . Emmings: Okay . There was a note in here that Cenvesco , somebody was billed for the reviewing fee on the Cenvesco development of $3 ,171 .76 and _ that , a bill has been sent on that and it 's never been paid . Now I take it that , was the owner of the property equally responsible for that bill as Cenvesco , the proposed developer? Planning Commission Meeting — July 15 , 1992 - Page 45 Krauss : They were one and the same on that project . Emmings : They were? Who owed that? Krauss : Dean Johnson . Emmings: Why hasn 't it been paid? Brad Johnson : I did ask him that the other day . He has had . . .work out an arrangement with your financial people that he wasn 't going to have to pay it . . . Nobody 's saying that he shouldn 't pay for it . That 's why it wasn 't paid . . .He has said he will pay for it but that 's just why it wasn 't paid . He ' ll pay for it when the project , when we can get a project approved . — ( There was a tape change at this point in the discussion . ) Aanenson : . . .forward any further until it is paid . Brad Johnson: My problem with that is , he was told by somebody in the finance it was an erroneously billed . So at that point I said well , we 'll . . . Emmings: Alright . So I completely agree . This shouldn 't get any more consideration until that bill is paid to the City . I think that 's all I 've _ got . Except to say generally that as a concept plan , I don 't think this is a bad one . I agree with a lot of Jeff 's comments . I can 't tell you the number of times we have a group of people in here like you . I can 't tell you the number of times we 've heard that the developer or the real estate people said that the land across the street would never be developed . It was a park . It 's fraud folks you know and you 're getting an education and it 's just too damn bad and I don 't know what to tell you . If you knew , and I guess I learned it coming on here . I didn 't have , fortunately I didn 't have your bad experience but I would never buy a piece of property in the city without going in . Had you come into the city and looked at the maps , looked at the zoning maps , you would have seen this land zoned as just what it is . For a high density project . It is , I was here when we looked at this property . I 've always thought and I still think it 's a real good and appropriate place , just looking at the city in a general way without — thinking of who 's looking at it . It 's a real good place for multi building development . The plan 's an improvement . I think they 've got really too many buildings on the south site is my biggest problem right now . The for sale units are just packed in too tight . Ahrens: Are you done Steve? - Emmings : Yeah . Ahrens: Kate or Paul , maybe you can answer this . As Jeff and Steve were - talking , what are we approving tonight? We can 't approve this conceptual plan because this is not , this has changed a whole lot . And yet there isn 't one conceptual plan that 's been presented to us that incorporates all the changes that have been discussed tonight . Planning Commission Meeting July 15 , 1992 - Page 46 Emmings : I think we 'd have to approve this one with conditions that will wind up being . Aanenson: Modified even more than this . Emmings: And then beyond that . Ahrens: Okay . Are you going to make that motion? Emmings : well I don 't know who 's going to make the motion but I think that 's the only , that 's the way to handle it is to do it based on what we 're . . . Farmakes: Open ended recommendations? Emmings: See we get to see all this again when the preliminary plat comes in . Aanenson: It will go to Council for a conceptual there too . Ahrens: Okay , let 's keep going here . Matt . Ledvina : Well I just , I don 't want to be redundant . I think there 's been a lot of good issues that have been flushed out by the public and the staff and my fellow commissioners here . But I will say that I think that the trail along the north side of the property should be strongly reconsidered . I know the root systems of those trees are very sensitive and we shouldn 't encroach on that at all if there 's a possibility of some problems there . Other than that I went out to the property today to take a look around up there and it is a beautiful piece of property . I think the developer has _ been sensitive to many of the site conditions . I wasn 't here when the original proposals came in but I can see that there 's been a strong effort to work with the piece of property as much as possible . But I think that through this process we can hammer out a proposal or a PUD that will be — acceptable to all of us . Ahrens : Okay . I agree with most everybody 's comments up here tonight . And I do want to thank all of you for coming in tonight . This is the way we get good proposals in the city . I think that there were a lot of real valid issues brought up tonight . I would like the developer to rethink or _ to explain better why the lower density housing is on the south side and the higher density on the north side . And I know there was some reference to it fitting in better and there 'd be less grading required . I 'm not sure that we got a real good answer to that . And I don 't expect you to address -- it tonight but at some point I think that needs to be revisited . A concern that wasn 't talked about up here yet is , I noticed throughout the staff report the reference to the exteriors of the building and that they look _ real nice on the concept plan and they 're going to have vinyl siding and asphalt shingles and gable roofs . How do we assure that? You know a lot of developers come in here and they say , we 've got a great plan . This is going to look terrific and then as soon as the development starts , they say . Whoops , we ran out of money and they 're going to be , they 're going to look a whole lot different from what we ever thought they were going to look like . And all of a sudden our backs are up against the wall because - Planning Commission Meeting July 15 , 1992 - Page 47 we can 't require them to do anything . I mean it 's happened a couple of . - times in the city . Krauss : It happened a number of years ago . I know when I came on board 3 years ago there was some questions and developers will try to do what they 'll try to do . There were some questions as I recall about the hotel where I was asked to approve construction plans that deviated from the plans that were approved . I refused to do that . I guess I also had the - foresight to call the Mayor up before they did to let him know that this was going to happen and we made them come back through the City Council . The City Council and you . In fact the Planning Commission I think we - brought it to . Most of the changes that had been requested were denied and they were required to build the building that way . I should also say too that , one of the unsung benefits of a PUD is a PUD 's a contract . Either _ the developer builds exactly what they committed to build or they 're in violation of the contract . Right now we have a site up there that 's zoned R-12 . Any proposal that meets the R-12 criteria in the zoning ordinance would , I mean if we tried to deny a proposal that met the R-12 criteria , - we 'd probably be sued and we 'd probably lose . Emmings: And what would be the maximum potential density in the R-12? Krauss : 12 units an acre . Emmings : So they could raise it to 12 units per acre . Krauss : You know these zoned properties are a little bit of a loose cannon . You 're never quite sure what 's going to land on it and I have a - great deal of preference for the PUD . I mean strictly speaking , contract zoning as such is illegal but PUD zoning which is dependent on a contract is fully legal . I 'm not the attorney and I can 't explain it but it seems a little congruous but that 's the fact . Ahrens : Okay so these people don 't have to worry that once a plan is finalized and they say they 're going to build what they 're going to build - design wise , that that 's what they 're going to see . Aanenson: One of the conditions of the PUD is any major change and that - would be a major change . It would have to come back through this process and public hearings . _ Ahrens: Alright . I don 't have anything else at this time . Why don 't we deal with the rezoning first . Does somebody have a motion on that? Aanenson: What we 're really looking at , we don 't want to rezone it yet - until we 've gone through , we really should come with a preliminary so let 's not consider the rezoning . Let 's just look at the conceptual at this point and we ' ll put the rezoning on when we 're ready to approve a preliminary - plat . I think that 's premature at this point . Krauss : So any motion should just be for a concept . A PUD concept review . — Ahrens: Okay , does anybody have a motion? Planning Commission Meeting July 15 , 1992 - Page 48 Emmings: I want to ask something . If we recommend approval of the concept , we 're not tying ourselves down to location of buildings , size of buildings or number of buildings as drawn on the plan? Krauss: Well , first of all you have to modify that with your conditions as you wish . Secondly , conceptual reviews are non-binding on either party. — It 's not as though you 've approved a preliminary plat and you 're pretty well obligated to approving final plat . Ahrens: What are we obligated to? Krauss: Nothing . Ahrens: Absolutely nothing? Emmings: I like that . Farmakes: So what are you subtracting there , 16? Two 8 units? Emmings : I didn 't hear any other support for that but . Ahrens: For what? I think the motion should include , I don 't know how you feel about it . Aanenson: Can I just clarify the PUD? What it says under the concept is that it shall not obligate the city to approve any final plan or to rezone _ any property within that district . So by approving the concept you 're not binding yourself . Emmings: And if this is done and then the City Council also approved the — concept plan , the next time we get to see this is at what point? Krauss: It will come back in for the preliminary plat . Preliminary PUD, rezoning approvals . The official public hearings for those are held before you . Emmings: And at that point in time , then we do bind ourselves to a plan? — Krauss : Yes . Emmings: Okay . So now this is , okay . No, I think I 've got it . Ahrens: So can you be as vague in the motion? You 're not approving the exact location or number of buildings? Emmings: I think we 're just not . Krauss: Well if there 's an intent section that you would care to add in terms of guidance , the whole point of this is to give the developer and staff and whoever else is participating your guidance as to how this should_ proceed . Emmings: Right . Planning Commission Meeting July 15 , 1992 - Page 49 Farmakes : Did it list those? Emmings: I 'm going to move the Planning Commission recommend conceptual approval of Site Plan Review #92-3 as shown on the plans dated June 15 , 1992 subject to all of the conditions contained in the staff report and also subject to consideration by the developer of all the comments made by the public that was here and Planning Commission members . I think that ought to cover it . If it 's going to be big and broad , let 's make it big and broad . Ahrens : Is there a second? Farmakes : Second . Ahrens: Okay , discussion . You said subject to all the conditions in the staff report plus subject to all of the . Emmings : Subject to , what I 'm saying to the developer is you 'd better read - the Minutes of this meeting . There are verbatim Minutes of this meeting typed up so , maybe you folks don 't know that . And so the developer can see what everybody had to say and I guess what I 'm saying is , when they come - back , we 're going to read the old Minutes and they 'd better be prepared to address the issues that have been raised . Ahrens: I 'm comfortable with that . Emmings moved , Farmakes seconded that the Planning Commission recommend conceptual approval of Site Plan Review p92-3 as shown on the plans dated June 15 , 1992 subject to consideration by the developer of all the comments made by the public and Planning Commission members , and subject to the following conditions: 1 . The applicant shall enter into a development contract with the City and provide the City with the necessary financial securities to guarantee proper installation of the public improvements and compliance with the conditions of approval . 2 . The applicant shall obtain and comply with the appropriate permitting agencies , i .e . Watershed District , MPCA , Health Department , Carver County Public Works . _ 3 . The developer shall dedicate and construct the utilities and streets within the public right-of-ways or easements to City standards and dedicate upon completion and acceptance to the City for permanent ownership . The remaining building utilities outside of the easements or right-of-way shall be privately owned and maintained . 4 . Detailed construction plans and specifications including sizing for the utility improvements shall be submitted for approval by the City . As-built mylar plans will also be required upon completion of the construction . 5 . Appropriate No Parking restrictions shall be placed on the private service drives accordingly . Planning Commission Meeting July 15 , 1992 - Page 50 6 . The final plat shall dedicate 60 feet of right-of-way for the proposed east/west connector street . A 36 foot wide urban street shall be constructed in accordance with the latest edition of the City 's standards . 7 . It is recommended that concrete sidewalks be placed on both sides of _ the proposed main east/west collector street . The sidewalks should be 6 feet in width. 8 . A detailed erosion control plan shall be incorporated into the grading plan and submitted for approval with the construction plans and specifications . 9 . The applicant shall reimburse the City for all fees incurred with the previous and current review and development of this project . A cash escrow account of $7 ,000. should be provided by the applicant to — insure payment . 10 . Apply for a wetland alteration permit for the location of the trails and possible location of sedimentation pond before preliminary plat approval . 11 . Implement the Parks and Recreation Commission recommendation for parks— and trails . 12 . Construction plans for the storm sewers will be required with the construction plans and specifications submittal prior to preliminary approval . 13 . Parking spaces must meet the parking standards as required by the — zoning ordinance . 14 . The landscaping plan shall be modified to include streetscape along _ Powers and Kerber Boulevards . In addition , conifers shall be placed south of the oak trees to provide additional buffering . 15 . The 16 unit rental building , which is oriented to the most northerly — portion of the site , should be moved and an 8 unit building put in its place , to minimize the impact to the single family homes to the north . 16 . Fencing shall be placed around the oak trees to minimize impact during construction . All voted in favor and the motion carried. Ahrens: The timing on this , I have no idea . What are we looking at here as far as , well we already know the Park and Rec Commission 's going to look at this July 28th . HRA? Krauss: HRA is not scheduled. — Ahrens: Not scheduled , okay . Planning Commission Meeting July 15 , 1992 - Page 51 Krauss: This is slated to go to the Council on August 10th. However , given the range of comments that were raised . Given the fact that the design is in a little bit of a state of flux , given the fact that the lomr developers had intended to meet with the neighbors and really hadn 't had a chance to , I 've just spoken to them and I think it would be appropriate for a meeting to be held with the residents and the developer . Try to iron the kinks out of this thing a little bit more before it goes to Council . Ahrens: Good idea . - Krauss: Therefore , we will notify you all of the appropriate City Council meeting . I don 't believe it 's going to be on the 10th because by the time you arrange your meeting and then we get a revised plan back , it would - probably be pretty tough to turn it around . In any case , we will send a mailed notice of the Council meeting . I guess you 'll get some mailed notice from the developer as to when they 'd like to schedule a meeting with you . Resident: Could we ask that the mailings show the current . . .? Ahrens : Okay , thank you everyone for coming . APPROVAL OF MINUTES: Chairwoman Ahrens noted the Minutes of the Planning Commission meeting dated July 1 , 1992 as presented . Emmings moved, Ledvina seconded to adjourn the meeting. All voted in favor and the motion carried . The meeting was adjourned at 10:30 p.m. . Submitted by Paul Krauss Planning Director Prepared by Nann Opheim w REVISED JULY 31, 1992 ONGOING ISSUES STATUS Comprehensive Plan Issues 1.* 1995 Study Area (North) First meeting held on July 15, 1992. and Hwy. 5 Corridor Study 2. 1995 Study Area (South) Assigned to Planning Commission staff. Work to be initiated as time commitments allow. OTHER ITEMS 1. Rezoning BF Dist. to A2 Staff preparing updated information for Planning Commission direction. 2. Sign Ordinance Work is continuing to progress with task force. Program expected to be completed shortly. 3.* Tree Protection Ordinance Inventory is completed. Over view of Mapping of significant existing tree protection regulations requested vegetative areas by Commisser Erhart. _ 4.* Wetland Ordinance/Surface Main group establishing public information Water Management Program and erosion control program along with Task Force established. other work. Special wetlands subcommittee should complete work on August 3, 1992. SWMP to review in full committee on August 13. To PC by September. • 5. Shoreland Ordinance Staff is currently working on a draft of the ordinance. Initial comments delivered to MnDNR. Will place on upcoming PC agenda. 6. Group home ordinance PC reviewed on 3/4/92. Currently preparing draft ordinance. 7.* PUD Ordinance PC approved on 7/1/92. Scheduled for CC review on 8/10/92. 8. PC input in Downtown Ongoing Planning and Traffic Study 9. Review of Architectural 1992/may be combined in part with Hwy. 5 Standards to Promote High work. Quality Design 10. Bluff Creek Corridor With adoption of Bluff Line Preservation -- Greenway ordinance, CC referred item to Park and Recreation Commission. Staff working with Riley Purgatory Bluff Creek Watershed -- District to develop joint Bluff Creek corridor program. Meeting held on conceptual Bluff Creek park design prepared by Lance Neckar -- of U of M. 11. Ordinance amendment to Non- PC approved. City Attorney to redraft. conforming use section to clarify ordinance. 12.* Temporary uses, sales - Guidelines memo reviewed by PC _ new ordinance. and scheduled for CC. Ordinance revisions to follow. Public Safety Director proposing changes to ordinance. 13. Truck and trailer rental standards. Request by PC. 14.* Sexually oriented businesses PC reviewed on 3/4/92. Sent to Public Safety Commission. Reviewed on July 8, 1992. To be forwarded to CC. —. 15.* Review of Alternate Target site plans To be reviewed by PC 8/19/92. 16.* Tree conservation easements. To be reviewed by PC in August. 17.* Fence Requirements. To be reviewed by PC in August. — * Change in status since last report CITY OF CHANHASSEN 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937-1900 • FAX (612) 937-5739 — July 31, 1992 Mr. Mark Halla _ Halla Nursery 10000 Great Plains Boulevard Chaska, MN 55318 Dear Mark: You recently requested administrative approval to allow additional fill to be placed on your property in the vicinity of the darn. The City Engineer and I discussed this matter at length and determined that we could not authorize approval of the request which was verbally related to us. We have several reasons for this refusal. City ordinances allow staff to issue up to 1,000 cubic yards administratively. As you are aware, we have already authorized you to place material on this site and you completed this work in 1990. According to my files, you contacted me last summer asking for another 1,000 yards and I rejected the request at that time, noting that we already approved this once and that a grading permit reviewed by the Planning Commission and City Council was required. I am attaching a copy of an update memo that I sent to the Planning Commission on our conversation dated August 21, 1991. As you are also aware, you applied for an interim use permit to place 100,000 cubic yards of fill on the property in 1990. This request went to the Planning Commission and was recommended for approval by them with conditions proposed by staff. You withdrew your application prior to its being heard by the City Council due to your apparent disagreement with the conditions of approval. Lastly, we note that although you are obviously familiar with the city's position on grading for this site, you illegally authorized additional fill material to be hauled in. This activity was uncovered by Engineering Department staff. When they stopped the front end loader operator and discussed ongoing fill activity with him, he indicated that he was instructed to tell city staff "to go to hell." I am enclosing a copy of a letter that was forward to Roger Knutson, City Attorney, on this matter. In short, you have had full knowledge of the city's procedures with regard to filling for a number of years and have chosen to violate them. The city's position on this is that we would recommend approval of fill designed to stop erosion and Is to PRINTED ON RECYCLED PAPER Mr. Mark Halla July 31, 1992 — — Page 2 maintain the dam structure as outlined in the 1990 staff report. We have bent over backwards — in the past to work with you on this matter. We will, however, require that plans to fill this area be designed by a professional engineer so that a stable dam structure can be made and _ that plans be designed to minimize environmental damage. City ordinances require that such plans be approved by the Planning commission and City Council. We are available at your convenience to work with you on gaining approval of such plans such you decide to move _ forward. — Sincerely, _ g6-2 g'...------ ''''117 .. 41,7 Paul Krauss, AICP Charles Folch Planning Director City Engineer Enclosures pc: Roge Knutson —_ P ping Commission ity Council IUP #90-3 —_ _ C I TY 4 F 9°"s CHANHASSEN' ; , r ., _ ft 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937-1900 • FAX (612) 937-5739 • July 20, 1992 Roger Knutson Campbell , Knutson, Scott & Fuchs 1380 Corporate Center Curve • Eagandale Office Center, Suite 317 Eagan, MN 55121 Re: Illegal dumping on Halla property Dear Roger: The following is an account of 'the events leading to the Stop Work Order issued for Outlot B%, Great Plains Golf Estates. Dave Hempel observed dump truck traffic entering the site on Pioneer Trail at 9 : 30 Friday, - horning, 7/17, and requested the Inspections Division to observe the site during the day. Charles Folch called Halla lursery and left a message for a return call which he did not receive 'on Friday. Steve Nelson observed loaded dump trucks entering the site at 3 : 00 the same day and requested an inspection by Dave Hempel. Steve and Dave both..entered the property after observing a number of loaded trucks entering and leaving empty. A loader operator was advised to discontinue pushing fill since no permit existed for _filling. He_ refused, :stating "I was told to tell you _if you showed up to go-to hell". Steve requested me and a Deputy to -the scene -Steve also indicated -to the equipment operator that he would be issued a citation if he continued working:<,- ; I was riding with Steve Torell,and arrived at about 3 :20 and advised The equipment operator that he would be issued a citation if he continued working. At that time he shut down the loader. The deputy arrived, and we turned back two trucks without permitting them to dump. I left for City Hall with Steve Nelson to get the camera, leaving Dave and the deputy, Tim Robbins at the entrance to the site. They reported turning back a few more loaded trucks. A I, PRINTED ON RECYCLED PAPER ' C_ O 6) U d _ =Y E w o c 2 - > m C oQ m . H Z ft to ------_, w o c - -cn Y - O �Z N a I- •> o h'! d — z J}:j --• > OtliNo o.<r:.. ,t....).r Lu u UZ17) p a ( 1p CL W < U A o'_ ° D ' °> ‘P ZUcc ' oo E - O / moi' I- 0 O C N I 1 U �t v c w : '''50 o n cc c" 0 O z ii . H O° 1 " LL w w C_ _0 Q y 0 w Z Z4 I Ifl w w ti 4- w O QCi p O Z 0 O d w O (-II 1 pO v • t --..... 4 4.ark. • tel .v- _...;•.,-„--, k r " - •. • - - - ' .yt � .srSAlk. - • • ; � om..' _ _ -,s _ t _ • - w^£. 1 c. 0 MI OT PROCEED _ , _ • r "'1 c r ms=s r' - ,�• R : •rt _�Xr • i ^:.a .4•;-•-..4••• ••-7- i T�,♦ , •,. *4044. rst^, # "'s tt , "r- .�, 6 .cos << 3a.. - . ,tom r.. t• i t - z•- -`•laayy. `s ;1: y•r -..� t { t._y - 4,� ,--.5,1#.=,,. '�. `».:,t 'k:rrr+P-:-.c,ii .h. {lin ''" c'.w •c:,G„• ":mss+• i._,I..r�` ';e` ?P, .' .----.'Yp _ %� _-.1-;'.•:,..r,_-.. ..;-.4..!*-..,--_,.r _ . .!/S6'"t . .... • R e a s o n ,,,,,,, ,�, w f Oyu -Q,rlNw o r IKLA, ,, 1 . 1-f 6-Al- .k--0VV1 RI I • Date \\-1 \'''') 2 Inspector - � 1 ® G WOT REMOVE THIS TAG City of Chanhassen 937-1900 % Halla Nursery August 21, 1991 Page 2 with the ordinance over 10 months ago had he proceeded with the application he initially made. While the grading ordinance allows me to issue permits of up to 1, 000 cubic yards in a calendar year, it does not require me to do so. In this instance, I clearly feel that I would be remiss in my responsibilities if I allowed filling to occur on a continuing basis whenever the property owner so desired. I believe it is clearly in the best interest of the city as well as the Hallas to develop a professionally engineered grading plan that stabilizes the structure with the minimum environmental damage. Earlier today, I also received a call from Paul Neumann from Carver Soil Conservation Service. He has worked with the Hallas from time to time on this matter. The Hallas contacted him and he called me to indicate that he also had a concern with unregulated fill on this property. It was his recommendation that no filling be allowed to occur until a professionally engineered plan was submitted and approved. Pc: City Council Planning Commission ti 90 CITY OF 4 _, A CHANHASSEN } 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612} 937-190) • FAX (612} 937-5739 MEMORANDUM - TO: Halla Grading/Interim Use Permit #90-3 FROM: Paul Krauss, Planning Director DATE: August 21, 1991 SUBJ: Update This memo outlines a series of telephone calls that occurred on or about this date between staff members, Mark Halla, of Halla Nursery and myself. After speaking to several staff members who had been contacted by the Hallas, I put in a call to Mark Halla myself. His request to other staff had been for the City to allow the placement of an unknown amount of fill material on their property. The site where the fill would be placed is a dam that was constructed by the Hallas in one of the reaches of Bluff Creek. The dam has been in place for a number of years. It was damaged by the 1987 super storm and last year I administratively authorized the placement of the maximum of 1, 000 cubic yards allowed under the ordinance for administrative approvals to stabilize the structure and improve drainage. This was basically done on an emergency basis and it was clearly indicated at that time to Don Halla that no further grading would be allowed without an interim use permit. In responding to Mark Halla 's request, I. indicated that I wasnot in a position to authorize the depositing of any more fill on this property. I indicated that Don Halla had made an application for an interim use permittodeposit additional fill on the site but had pulled his request -.prior to :planningc -_ ommission and City Council action.after he rad the conditions of the staff approval. Staff has long been concerned that the Hallas are using this area as a dump site and that unregulated fill .could•create a hazard from an unstable dam, causing environmeAtal damage due to tree loss and would result in extensive erosiontdamaging downstream waters. •f Mark Halla indicated that Shafer Contracting, the Highway 5 Contractor, has indicated a willingness to deposit fill material on the property. I indicated to Mark that I was not in a position to act favorably on this request and that it would take approximately 2 to 3 months to gain approval . I further indicated that Don Halla could have had approval to modify this site in a manner consistent t 4• PRINTED ON RECYCLED PAPER Halla Nursery August 21, 1991 Page 2 with the ordinance over 10 months ago had he proceeded with the application he initially made. While the grading ordinance allows me to issue permits of up to 1, 000 cubic yards in a calendar year, it does not require me to do so. In this instance, I clearly feel that I would be remiss in my responsibilities if I allowed filling to occur on a continuing basis whenever the property owner so desired. I believe it is clearly in the best interest of the city as well as the Hallas to develop a professionally engineered grading plan that stabilizes the structure with the minimum environmental damage. Earlier today, I also received a call from Paul Neumann from Carver Soil Conservation Service. He has worked with the Hallas from time to time on this matter. The Hallas contacted him and he called me to indicate that he also had a concern with unregulated fill on this property. It was his recommendation that no filling be allowed to occur until a professionally engineered plan was submitted and approved. pc: City Council Planning Commission RECEIVED .. wine PLANNING JUL 2 0 1992 Cogan on.. .r ...dealing with COMMISSION CPI d?C11) 1ASjkl`- the news media. 3 - MUnanningi Law Primer Understanding • the basics of .tea subdivision regulations.Plus _ some history on _ For America's Municipal&County Planning Boards the changing role ..- cf subdivision controls. ;, "Open Space" Zoning: o _ ....._.,.. .. ........ . -- WHAT IT IS & Ethics ^.r --� WHY IT WORKS -z. ._ .� ,,�„ 'More on rnnflu Is L js%A.,•._ c_....,,..„.„7-..:.--_-...i � = 7 ;.s... �{ �• ' ---:-7-::i7:-- --72--?'"?..""- ' Au Randall Arendt . �..j- sem"— ; 1 FROM THE EDITOR FEATURES i PLANNING COMMISSIONER "Open Space"Zoning: , Question What it is&Why It Works ournai Randall Arendt Authority Conventional large-lot zoning has contributed to the t consumption of vast amounts of open space and r farmland. Randall Arendt proposes"open space" i Champlain Planning Press Haveyou ever seen the bumper betteri zoning as a method for local governments to s P.O. Box 4295 sticker that says:"Question Authority." use when regulating new land development. t Burlington,VT 05406 It's popular around college campuses. 4 Tel: 802-864-9083 It's also probably the motto of most ` _ Fax: 802-862-1882 every teenager. Map Compilation: Compuserve: 72570,460 Authority doesn't just mean Planning the Perfect Map people.It can also refer to our laws and Thomas L Millette Editor In Part Il of his three-part introduction to mapping, I local regulations. As a member of a Tom Millette looks at what it actually takes to put Wayne M. Senville planning commission or board you together a useful map. quickly realize that your own authority 13 Assistant Editor is defined, governed, and limited by Kenneth Lerner authorities like your municipal zoning DEPARTMENTS code and subdivision ordinance. € Sometimes it makes sense to ques- i Design tion whether these authorities are ac- The Effective Planning Commissioner [ Quad Left Graphics Burlington, Vermont complishing what your community re- Many planning commissioners feel that the media t 6" ally wants. Randall Arendt — whose performs poorly when covering local planning issues.Reporters and editors disagree.Elaine Cogan f Cover Illustration article"Open Space Zoning"is featured looks at both sides of the story in explaining why in this issue—is one person who ques- positive media relations requires special effort. Paul Hoffman tions the wisdom of the conventional 3 Z Woodbury,CT zoning that most of our municipalities adopted years ago. Arendt argues that News & Notes Subscription Information conventional zoning requirements do Knoxville's Box City I little to preserve open space and, in- Scouting for Planners in Columbus,Indiana f Published 6 times/year,with an index include_ in the September issue. Standard Rale: S45/ stead, foster a sprawling. land-con- Reader Response:Tips on Street Lighting I year.Additional Copies: 56 each. Small tom sumptive pattern of development. As 9 E murales(populations under 25,000),and mut counties or regions(populations under 75,000, he explained in a recent interview, t receive 40%off the standard rate. ISSN 1058- "most people working at the local level Planning Law Primer ` 5605. Postmaster and Subscribers: Send ad— haven't realized there are alternatives i dress changes to Plannin Commissioners our Attorneys Martin L.Leitner and Elizabeth A.Garvin g g J to conventional zoning - which pro- begin their two-part introduction to the basics of i ,P.O.Box 4295,Burlington,VT 05406. duces' wall to wall'house lots and ulti- subdivision regulation—and also offer some mately'wall to wall subdivisions." background on how subdivision regulation has P Editorial Policy evolved over the years. 1i- One of the responsibilities of most 10 j. We strongly encourage subscribers to contrib- planning commissions — albeit one we news, information,and ideas. A standard_ that tends to get buried under the Ethics &The Planning Commission fonn for submissions to the News&Notes sec Fr. tion is available. Articles and columns con never-ending flow of other,more press Greg Dale returns to the subject of conflicts of t tained in the Journal do not necessarily reflect ing,business—is to see to it that zon- interest in responding to questions from two the views of the Journal. The Journal is copy-__ ing and subdivision regulations are readers. i right protected by Champlain Planning Pres helping to produce the type of develop- 12 € 1992.For permission to reproduce or distribut, ment pattern the community wants.As any portion of the Journal,contact the Editor. planning commissioners we should Insights 1 This publication is designed to provide accurat.— make an effort to free up our time — When you think about how your community looks, 1 and authoritative information on the subjec and staffs time — to now and then does legibility mean anything to you?How about matter covered It is sold with the understand- aesthetics?Urban designer Brenda Lightner argues i ing that the publisher is not engaged in render-_ question authority'. that many of us are unhappy with the way our ; ing legal,accounting or other professional ser towns and cities look because legibility and vices. If legal or other expert assistance is re aesthetics are too often ignored. F quired,the services of a competent professional &jail- /11.jete.:k. 16 t t should be sought. PLANNING COMMISSIONERS JOURNAL NUMBER 5 JULY / AUGUST 1 9 9 2 l r THE EFFECTIVE PLANNING COMMISSIONER Positive Media Relations Requires Special Effort By EIaine Cogan _ < . nend or foe? Adversary or ences between the electronic and print made. They often will save space if they advocate?When asked what they media. Print — primarily your daily or know fast-breaking news is coming. An- weekly newspaper—is less transitory than other way to obtain full coverage of a con- dislike most about their jobs, television or radio and can cover situations troversial issue is to schedule an earlier many planning commissioners and their in more depth. Still, you can have trouble meeting time or take up that agenda item staffs put having to deal with the media when their deadlines do not coincide with first.If you are on very good terms with the near the top of the list.What is your record yours. Many planning commission meet- press,you might ask to have the report of in media relations? ings last well into the evening or early the meeting delayed a day so that the com- If you have been in the public sector plete story can be written. — any time at all, you probably can cite at _ . • When the ubiquitous television cam- least one example where the media ap- c • eras come to call, accommodate them as peared to distort the truth, follow its own —" � A ��F _. best you can.Assign a staff person,if pas- _ agenda, and generally impede good rela- RYDA_ ' Ll • - . ,- _.1.-.;,moiv., -::. , ,•-t1 Bible, to find them a place that will not tions between your public agency and the ' RE . •T • MEDIA t , obstruct thepublic's view. Be prepared public. :-..,4---I ' C I " when,out of a two-hour meeting,the tele- The media, on the other hand, mostwins° , '' vision reporter picks out just thirty or sixty likely can show at least one example where =. s .,;:� 4 e MUM _ ND .,-�` seconds' worth of a story — and its not your agency's representatives appeared to ,_. .7_=,_.`' flattering to your agency's point of view. —be less than completely open, shaded the Q ., • REIPR BEAT= '- To help deter such a situation,offer to meet v,yY facts, and generally acted as if they had G#i1LY1c4UR-" x with the assigned reporter before the meet- something to hide. • ", j _`�' ' a ung when you can provide an outline of the - The keyword here is "appeared," for xY, X pp * . •� - ..!Ac--- : '�{ _7. issue under discussion.Whenever you deal there likely is truth on both sides. As a -s; �,, - _ ' with TV,talk in short,succinct sentences. ,, ..:1-. �-- . . . They give only'sixty seconds to important public official,you should never consider � • ',..�,� =.-:_-; —the media your friend.Then you will never pronouncements of candidates for Presi- feel "betrayed" by what they do.With the morning. If the reporter leaves to meet a dent.Why should they give you any more exception of public television and radio, deadline before your deliberations are time? .....all media are businesses whose owners over, you may be horrified to pick up the The radio audience is even more fickle expect them to make a profit. Self-serving morning paper to find that coverage is con- than television viewers.Radio listeners are declarations to the contrary,their primary fined to only when the reporter was most likely in the car, the shop, or the _mission is not to carryyour message ex- present. Unfortunately, if that time was kitchen — in other words, doing some- cept as it gets them more readers,listeners, devoted to dealing with a complaining con- thing else. To communicate well over ra- or viewers.However,profit need not trans- tingent of citizens and an amicable deci- dio,speak clearly and in a friendly, infor- _late into profligacy, and there are many' sion was reached after the reporter left, mal voice. Local talk shows are a good fine examples of the media as good com- only the negative part of the story will ap- vehicle for two-way communication with -runty citizens. It does mean, however, pear.If confronted,the reporter and editor the public. hat they do not have to provide coverage can plead innocent. They could not hold There will be times when no matter —for your agency,no matter how newswor- up the presses because of your marathon how hard you have tried to meet the thy you think you are. Still, the facts of session. On the other hand, you are rea- media's needs,they will print or air a mis- weryday public life are that the media are sonably provoked because the public is leading or damaging story.Your first reac- an important conduit to your constituency, being given the wrong message. tion should be to do nothing.Allow your- and you ignore or treat them lightly at your What to do? First of all, know the self or your staff time to be angry or upset —)eril. deadlines of the press; if they cannot stay without getting on the phone or sending Other than being driven by the profit for an entire meeting,arrange to phone the an irate letter to the editor or manager. motive, there are many important differ- reporter or editor as soon as the decision is continued on page 8 — PLANNING COMMISSIONERS JOURNAL NUMBER 5 JULY / AUGUST 1 9 9 2 E FEATURE - "Open Space" Zoning: WHAT IT Is-& WHY IT WORKS -ocal officials in most rural 'Randall Arendt A BETTER SOLUTION an •suburbanizing areas have a Local officials who are interested in provide nothing more. While many ordi- lon -term choice about which ensuring that their communities will no- g nances contain detailed standards for pave ultimately become a seamless web of sub- many are not fully aware. That is whether ment thickness and culvert diameters,very divisions, shopping centers and office or to continue implementing "conventional few set any noteworthy standards for the industrial parks now have a practical and zoning,"or whether to refine their existing quantity,quality-and configuration of open effective alternative: compulsory oper land-use regulations to ensure the preser- space to be preserved. space zoning.This technique has been suc- vation of open space through creative de- Conventional zoning assigns a devel cessfully implemented by a number of_ velopment design.Conventional zoning is opment designation to every acre of land, municipalities in New England and the essentially a blueprint for development, generally residential, commercial, or in- Mid-Atlantic states, and by several coun- and development alone.Of course,zoning dustrial. The only lands which are nor- ties in Virginia,Washington State and Cali normally separates incompatible uses,and mally not designated for development are forma it does establish certain standards(such as wetlands and floodplains. Conventional In order to avoid disturbing the equity maximum densities and minimum set- zoning has been accurately described as held by existing landowners, open space backs),but it typically does little to protect "planned sprawl," because every square zoning allows the same overall amount o open space or to conserve rural character. foot of each development parcel is con development that is already permitted.ThE The reason many subdivisions consist of verted to front yards, back yards, streets, key difference is that this technique re nothing more than houselots and streets is sidewalks, or driveways. Period. Nothing quires new construction to be located or because zoning and subdivision design is left over to become open space, in this only a portion — typically half— of the standards usually require developers to land-consumptive process. dpi ' �•} �`_' .-• -..- �`"�C.E ` _ -; _Tis -� w -I-1 _ ki • . : •,... .___7,_ . -:-.::-L-4////i _. ..,i, t,, It. r •• ,...:,1::k-rig.• ". ."11-7..rfA.'7::e _‘_ ... WI171 �y{ y J ! - . ' I 1 ,..-• .----i _:_t4.'....--..,Litr..4--4,-_. lee. .: z . .','',. , imair: :•,_-- './ li--, i . . ---- -__ _ ._ ----_-.:1 jt.../.:.7" ....kcjida , •- ---- - - a,,,, ::_!_.:_____71"--t' tz,fe_ p 1 rif- • A. _ ,i I \ -: r..,- •r. _ I -.,*�L— .4:;-:-!- ♦.�- . ' � te *. •.. f ice- •i- r .1 S5."5.iz Ir —tl— I-+. .-. i r41101 _ : .V E - . IL -. -'-i----L._. f.'• - - — Pre-Development Rural Village. Conventional Development. Open Space Development. A small village grouped around a few buildings Under typical large-lot zoning,the village might Under open space zoning, the agricultural land including a farmstead,church and town offices. be developed like this. Few people realize that is permanently protected. The development has The rural character is defined by the large open their local ordinances mandate this kind of the same overall density as in the preceding - fields. approach, where all open space (except for illustration,but houselots are half an acre in wetlands and floodplain) is divided into size,and grouped to preserve the farmland. houselots. Here,typical one acre lots are shown. PLANNING COMMISSIONERS JOURNAL NUMBER 5 JULY / AUGUST 1 9 9 2 Large Lot Zoning "farmettes")to a minimum of thirty'acres. However,the original one unit per five One of the "solutions" that acres density remains available if the many conventional zoning houselots are downsized so as not to ordinances use for presumably maintaining consume more than fifteen to twenty open space and rural character is large lot percent of the parcel.Applying this kind of zoning—that is,establishing large,five to stiff"density penalty" to discourage land- ten acre,minimum lot sizes in rural zoning consumptivefarmettes may be a far more . parcelThe remaining open space is per- maeT protected under a conservation districts.Although large lot zoning does effective technique than offering meager reduce the number of homes that can be density bonuses to encourage clustering. easement co-signed by a local conserva built,it also spreads out the homes in such tion commission or land trust, and re- a way that none of the remaining land is _corded in the registry of deeds. As "open 4111111( useable for farming,forestry,or even space zoning"is based upon the technique recreational trails.Houselots become too WEST MANCHESTER of "clustering," these two terms are used large to mow,but too small to plow,"and TOWNSHIP, PENNSYLVANIA _interchangeably throughout the rest of this the greater distance between homes Preserving Their Future article. It should also be noted that the effectively stifles the emergence of any cluster concept can be restricted to de- sense of neighborhood. West Manchester Township,in south- tached, single-family homes, each on its central Pennsylvania,last year amended its —own down-sized houselot, in communi- open Space: zoning ordinance to require open space ties or in specific zoning districts where What Size and Shape' development within an undeveloped this is politically desirable.In other words, portion of the township. The area had Unless local regulations requirethedetached —luster housing is by no means limited to been zoned for single-family Y r condomini- open space to be at least a certain size with residential homes,on half acre or smaller townhouses, apartments, o ams,as is typical in many P1.5 c (planned specific minimum dimensions,it can end lots. Before amending the ordinance,the up being a long narrow fringe abutting rear township had prepared build-out maps —unit developments) and PRDs (planned lot lines and the parcel's outerrimeter. residential developments).In fact,the clan showing what the area might look like if This can be easily avoided by clarifying,in developed under the existing conventional sic rural village settlement pattern is a su the ordinance,that lots and roads shall not zoning. These maps vividly showed the —perb example of single-family clustering, cover more than,say, 50%of the parcel, potential loss of the existing farmland and sometimes with a central green constitut- and that at least half of this open space open space. The township also mapped ng the permanently preserved open space. must be shaped so as to be useable for out the open space it hoped to preserve to — CLUSTER DESIGN active recreation or agriculture,for show landowners and developers exactly example. what was envisioned: interconnected open The basic principle of cluster develop- _nent is to group new homes onto part of Requiring spaces crossing parcel lines. q g Under the township's open space the development parcel, so that the re- Open Space Design zoning provision,a developer first -minder can be preserved as unbuilt open prepares a sketch plan showing the pace. The degree to which this accom- Experience has shown that when clustering and opennumber of units that could be built under pushes a significant saving of land, while g space preservation area conventional development pattern. This left optional,only a small percentage of "roviding an attractive and comfortable developers choose to take advantage of this determines the allowable density that can iving environment,depends largely on the be used when the project is designed in a quality of the zoning regulations and the approach. Most simply continue to do as clustered manner.According to Jan Dell, ox erose of the development designer they have always done: creating checker- p pboards of house lotsd streets.This AssLstant Township Administrator,allow - preferably an preferably someone experienced in land- ing the same density was important to 3ca e architecture). means that even though the clustering P allay the concerns of affected landowners. option is in the zoning ordinance,it Although the concept of clustering is At the same time,preserving views of open remains essentially unused.The commu- airly simple, this "new" form of develop is still left with conventional develop space would make developments more znent has raised concerns among some attractive to home buyers.One other note, ment patterns repeated over fields and residents of rural or suburbanizing areasw landsWest Manchester's open space zoning Because it is quite different from the con- requirement only applies to developments If a community is reluctant to require —.'entional, standardized subdivisionatinvolving more than fifteen acres. p clustering,it might consider the approach tern with which most of us are very famil- taken by Clallam County,Washington. For more information,contact Jan Dell ar. Interestingly, the conventional subur- at: (717) 792-3505. Editor's Note:Manches- g. The County recently revised its zoning man model, commonplace in manyter Txp.also made use of the design manual p from a density of one unit per five acres continued on page 6 (which was creating non-functional and video cited in the Resources sidebar on page 8. • PLANNING G COMMISSIONERS JOURNAL NUMBER 5 JULY / AUGUST 1992 t "Build-Out" "open Space"Zoning Landowners who view their property_ eMaps continued from page 5 as their "pension" no longer have to df growing communities,is actually a pattern stroy their woods and fields in order t., One of the most understand- retire with a guaranteed income, as their able,inexpensive and effective tools for that is at odds with the otherwise trade tional rural landscape. It looks "at home" equity is not diminished. Local goverr showing local residents and officials the mems do not have to raise property tax( long-term result of implementing only in our sprawling metropolitan post- p p }' existing zoning and subdivision regula- war suburbs,where it has become the pre- to finance expensive open space acquisi- dons is the build-out"map.This map dominant building pattern. tions,and are not faced with the admini— shows the probable location of new The purpose of this article is to first trative complexities posed by TDR(tram roads and houses which could legally be briefly explain what I believe are the major fer of development rights)systems.Devel- constructed on the vacant and buildable advantages of requiring clustered (open opers are not placed under unreasonabl-- land remaining within the municipality space) development, and then to discuss constraints, and realtors gain a specie (or a portion of the municipality). several of the concerns typically expressed marketing tool,in that views from the new Because so many people assume their at local meetings where the open space houses will be guaranteed by conservation town is adequately protected by existing planning concept has been discussed. easements protecting the open space fror zoning,a build-out map, by graphically future development. "Enhancing...^p.6 THE ADVANTAGES OF OPEN SPACE showing what might occur,can be a real DEVELOPMENT WHY REQUIRE CLUSTER DESIGN? "eye opener."To ensure accuracy,build- out maps must not project development The conventional approach to devel- Perhaps the most controversial issue into areas where natural or regulatory opment results in the entire parcel being surrounding the cluster concept is the sug-_ constraints would prevent it. covered with houselots and The Center for Rural Massachusetts subdivision streets. Commu- ' has available "A Manual of Build-Out nities which have had a lot of ' - _ fi Analysis,"a step-by-step guide to the experience with this type of preparation of build-out maps. Contact development ultimately real- I - _ , _ 'l Christine Reid (413)545-0153 ize that,as one parcel after an- r,..,_,..,-,--.... t.r. other is developed, their for- _ Enhancing .-� - -.,. • - merly open landscape evolves _::7-.•. -s.',..:.,.,.-"- -, Property Values into a network -x . ;'_ . _ Ty'' - et �ork of "wall-to- "�,' ,. y`"`'' wall" subdivisions -Lar .— "" '^s`': -"_ "= • _ A recent study by Jeff - - '+std _'' •- _ Lacy at the � 8e :'-.�. �4 .�s� M —11 Center for Rural Massachusetts compar- Lilt,"p.5 " ' ''_ Mg conventional and open space The beautyof open space `-i ,'-`-4 -sx:.vf> * s g Pe Pa P P �c ''� •` `�'��c. "� - - developments in two Massachusetts zoning is that it is easy to ad �' ab.sig � towns over long periods of time found minister, does not penalize Conventional large-lot zoning development in Middletown, R1. that the value of homes in open space the rural landowner,does not developments appreciated at a greater take development potential away from the gestion that this open space approach b. rate. The study is available by contacting developer, and is extremely effective in made mandatory. The rationale is tha Christine Reid at: (413) 545-0153. permanently protecting a substantial pro- there are certain types of irreplaceable An interesting article by Philip portion of every development tract.It does natural resources which are extremeh— Larsen, "Open Space That Sells,"in the not require large public expenditures (to important to protect.Among these may bt Summer 92 issue of Land Development, purchase development rights),and allows listed aquifers, riverfront land, fields and the publication of the National Associa- farmers and others to extract their rightful pastures. In addition, clustering allow-- non of Homebuilders,explores how equity without seeing their entire land flexibility in layout so that a developer car well-planned open space can enhance a holding bulldozed for complete coverage avoid impacting important wildlife habitat development's market value.As Larsen by houselots. areas,such as deeryards,or scenic features- notes: "The key is to view the various This pattern of down-sized houselots of the rural landscape, such as large rod open space requirements as opportune- and preserved open space offers distinct formations, hill crests, and mature tree- ties rather than as liabilities. A look at the most successful projects in any economic advantages to all parties. Devel- stands. It is a local decision whether to— region will reveal that open space has opers can reduce the costs of building require the cluster approach when devel- not been wasted. Projects that feature roads and, if applicable, water and sewer opment is proposed on any or all of these open space are projects that sell and,at lines. Local governments save on resource lands. the same time,provide environmental snowplowing and on periodic road re-sur- There are several possible options tc amenities and opportunities for recre- facing. And home buyers often pay less mandating open space. One is to require ation." because of these cost savings. the cluster approach in only certain zon- PLANNING COMMISSIONERS JOURNAL NUMBER 5 JULY / AUGUST 1 9 9 2 ing districts,or when certain resources are The related issue of"impact upon sur- t \ Open Space present. Another alternative is to autho- rounding property values" is also often I ID Preferences rize the planning commission to require it raised.Along any part of the parcel perim- t ' adjoin eter where down-sized lots would The Livingston County, only when the developer's conventional � an,Planning plan would destroy or remove more'than a standard-sized lots, communities can re- Mich;S S De Partment quire buffer strips.Alongother es,this specified percentage of certain listed re- F e , surveyed 102 members of planning _ S i commissions and townshi boards in the sources, leaving determination on a case- may not be desirable or logical, as lots t P 11 by-case basis. Whatever the choice, it is which border permanently protected open County to determine local officials' almost always s en o higherpropertyt attitudes towards cluster design.One of mportant—in my view—not to leave itspaceY enjoy S the questions asked is reprinted below. to the developer to decide whether to opt values. Indeed,most realtors would attest 75%preferred Figure B,the cluster for cluster development"Requiring Open to the fact that all lots within a well de . layout,while 22%preferred Figure A. ;pace Design",and 'West Manchester s signed cluster development usually gain For further information on the survey, - enhanced value as a result of the protected contact Charles Bevelheimer,Assistant QUESTIONS ABOUT CLUSTER open space."Enhancing..."p. 6 • PlanningDirector: eihei517) er,Ass5. istant DEVELOPMENT: "Open Space" Maintenance. Another - Will It Harmonize With Its Surround- issue is maintenance of the open space cre- In each of these figures there are 20 homes in s? A concern I often hear is that clusterdistributed over 40 acres. Which figure $ ated by clustering. If this space is recce looks more rural to you?Figure A or B lousing will not blend in with a town's ational (playing fields,jogging trails, ten- .-ural character. It is true that some cluster nis courts),upkeep is typically handled by , Figure A developments done in the past have failed a homeowners' association, to which ev- t i / .rte: eryone is contractually obli- 1 i !;:'F�' 72 - gated to contribute when they ♦ + j • ., ' . ,T, r purchase their home. Home I - �' '�`r �-. _ -. .214- .tfiltesrY - buyers signa legally enforce- ^^:i �'_ • -'II a r,-S„ �'= •,i.4:=•";-,._--,--,...-,..-4.-,-;• 'A.' r able agreement which enables 111 z"'_ _-- - ,, :•<� '-� - ' - the homeowners' association _- - - -^—•-� '-. ~ „+.- . . ::, to collect any unpaid dues. — — V'.',77 II I 7 moi':' .:AV: Iftheo ens space �� • i r �„'. �.41,7e4'_ -�� Fi � F P Ste- �- � 1 N. .$ """: t� ,ser;� cultural, there are several op _ _. j `, :4 tions. The agricultural open • s i V i y + ` � space can be sold "in fee" to Ak '"-. _ _ f � .64.4-4,....-4-_-, � the homeowners'association, which can in turn lease it to Figure B —Igen space development in Lower Makefield Township, local farmers. Alternatively, Pennsylvania, where over half of this 431 acre tract has been the original farmer can retain Permanent Agricultural ., , 'reserved as farmland (137 acres donated to a local farmlandg _. -`<:;° 'ust)or as woods and wetlands (100 acres). Houselots are ownership of it and sell only oiler,Space „.7,,•:,;,;:v• bout 1/2 acre in size. Buyer response has been very favorable, his "development rights." I y=". ' • with sales outpacing similarly priced developments. The favor the latter option,even if - - a \---:-..;.::: :-.7.-:2__ 'eveloper advertises the project as "a community that will be the farmer is planning to re =-% =` _ �' rrever surrounded b_ acres of preserved farmland, open fields =�j :.- " L7'='e,:'�,'-'��I U tire,because he could still sell _`- 1 ? and woodlands." .� 4.—..—., /- j --- the field to a younger farmer ,rt ' , s ""'- • harmonize with their surroundings. in the neighborhood at an affordable price =�`=%�'�' t' _,ecognizing this potential problem,a few reflecting the land's agricultural value— + r communities are now requiring that new not its potential building-lot value—thus __� s I a ' 1 r• .uster plans consist of only detached, strengthening the local farming economy. • . • _,ngle family homes, each set on its own, Buffering Farm Operations. In order to sI a �, down-sized individual lot,roughly resem- reduce potential conflicts between new E - ling a traditional village pattern.This also residents and agricultural practices, com- it -isures that everyone will have their own munities are beginning to require that clus- t separate yard space, in addition to the ter lots be separated from the protected f rger "open space" which the cluster ap- farmland by a"buffer"strip,typically 75 to -roach creates. 100 feet wide. Where it is not possible to continued on page 8 = PLANNING COMMISSIONERS JOURNAL NUMBER 5 JULY / AUGUST 1 9 9 2 -�=c, -=•�- '-=; long-termsuitability The Effective == �- t---,---,-,-,-------; �_ marginal soils whose ._ - =�= - _ q Planning Commissioner -- -2.5;4.7_,,-;,F,_=,... ...-7...;-+ i - :=; is questionable. In addition, it should be _<•= >-- .-.:5-7---_-:;s:-.- continued from page 3 - _-_ --, =._.= _; noted that septic systems can be located ,, -- y '=-;t.. beyond one's lot lines, on an easement Then,talk it over with others who are not q L r `-, _` ��+. :.- ',!.• withinthe protectedopenp as intimately involved.If they do not think -` .' L .„4.: :,. '•< . h s ace. v f; r >= ., any harm was done, forget it. tst�i • SUMMING UP: /:- .• , /, :::-. If everyone agrees you have cause to ',:-%:-.. ,^,./ //li ,//////////,l .4�;\,\\\ Whether continuous coverage b}' complain, coolly assess all the facts. Was — r• :<-:.;/,/,//1/..�: � \ large-lot subdivisions is more desirable �:� '•; y� ': ; . ,.::•,...,.;;;.,1`•. the entire treatment of the issue untrue? • '• '" than a mixture of village-sized cluster lots ..,::,*:<)::7'.141 "-�¢ . Half-true? Or were the facts correct, but T "•1• f'�"'= -- surrounded by permanently protected the emphasis detrimental?Were names or — "Open Space" Zoning fields and woodland is a decision for resi- titles misspelled or comments misquoted? continued from page 7 dents and officials in each town.As long as Does the story unfairly damage your repu- use existing woodlands for this purpose, even one is clear about the ultimate tonne talion or that of the agency? — officials can require new buffer areas to be quences of the various development types If you answer yes to most or all of thickly planted with a variety of rapidly Which are available to them, these deci these, first contact the reporter. Perhaps growing native trees and shrubs.A similar sions can be made on an informed basis. she or he misunderstood and is willing to _ requirement should also be placed on con- Randall Arendt is Vice President for Conner- print or air a correction. If you find no ventional subdivisions when they abut vation Programs with the Natural Lands Trust in satisfaction there,proceed to the editors or working fields,but this is rarely done. Media, Pennsylvania. Prior to this, Mr. Arendt managers.They probably will back the re-— Street Standards in Cluster Develop- served as Director of Planning and Research for the porter,unless it is a rase of outright,prov- ments. When cluster developments are Center for Rural Massachusetts in Amherst. able lies,but they may be receptive to print- designed with privately maintained road Randall has been in the forefront of thoseplan- ing a guest editorial or a letter, or giving_ systems, planning boards are often asked ners who argue that conventional zoning has Jos- you rebuttal time on the air. Oftentimes it tered a sprawling pattern of development that un- to reduce their normal street construction is more effective to have sympathetic citi- necessaril} results in the consumption of large standards.This has sometimes created sub- amounts of open space and agricultural land. He zens rather than elected or appointed offi-— standard conditions, and is a practice has also just completed writing what promises to be cials carry the message. which communities would be well-adviseda very useful book called Rural by Design:Main- to resist. If subdivision street construction raining Small Town Character.It features numer- Take care of the incident as best you can standards are excessive—as they often are ous case studies of communities that have success- and move on. You need the media, and- - they should be revised for all types of full) dealt with open space,infill,and commercial they need you. By constantly trying, you new development, so that street width development.Publication is scheduled for later this can nurture a symbiotic relationship that bears a reasonable relationship to the ex- year by the American Planning Association and the benefits all. — pected volume of traffic. [Editor's Note:On Lincoln Institute. Elaine Cogan's column •_.. ,. this point,see Joseph Molinaro's article, "Re- regularly appears in the - ;{. • thinking Residential Streets,"in the Novem- journal. Ms. Cogan under- ber/December 1991 issue of the Journal]. stands the needs of the me- Sewerage and Septic Systems. Because Resources: dia,having written a column -447 of the shorter road system needed to serve ( .4 A valuable resource on for the Oregonian newspa- — lots in a cluster development, substantial e'� - per in Portland for fifteen savings are possible with respect to the open space development years.She has also produced is "Dealing With Change in the construction of roads, sewers, and water and hosted a public affairs — Connecticut River Valley:A Design talk radio shoes,and appeared as a television corn- lines. Where sewer service is unavailable, Manual for Conservation and however, have expressed concerns mentator. From the other side of the fence, as the people -P Development,"available for$25 from former Chair of the Portland Development Com- about siting septic systems on the smaller the Lincoln Institute of Land Policy: mission,she understands the dynamics that public— cluster lots. Recognizing this factor, offi- (800) 848-7236. agencies undergo when the'present their views to cials are requiring such houselots to be lo- "Rural Design,"a 60-minute the public. cated on that part of the parcel where soils video of Randall Arendt's slide show, — are most favorable for leaching fields. The provides a very useful visual intro- flexibility of cluster design allows this to duction to cluster design and related happen. On the other hand, in a conven- topics. It can be ordered from the — tional subdivision, septic systems are lo- American Planning Association: (312) cared wherever the soils manage to pass 955-9100. minimum health requirements, even on — PLANNING COMMISSIONERS JOURNAL NUMBER 5 JULY / AUGUST 1 9 9 2 i NEWS & NOTES Reader . X Response Box City officials,have been involved in j I've found. Older girl scouts I just finished reading"Light- . .wOXV1LLE, TENNESSEE this program. Several of our can earn a badge called "Corn- ing Our Streets"by Robert Prouse own planning commissioners munity Time Capsule,"which in your May/June 1992 issue... (Editor's Note: This report have served as"advisors" to asks them to project what their Based on my recent experiences in on Knoxville's "Box City"pro their young counterparts. community will be like in ten Hagerstown.Maryland,I believe ram, along with the subsequent Their advice has been wel- to twenty years.Junior girl two other issues need to be in- lews&Notes item from Co- eluded in any introduction to the corned by the students making scouts can earn the "My Com- basics of lighting. lumbus,Indiana, supplement the important zoningdecisions for munity"badge.This badge, ,-ummary in our November/ P The first point concerns plan Knoxbox City and Volville. usually completed by the en- arrangement.Because two of )ecember 1991 issue on Bath, For more information con- tire troop,requires girls to downtown Hagerstown's main -Maine's program on involving tact Sally Hanson, Communica- complete six activities,such as streets are part of a U.S.highway kids in planning activities.As tions Specialist, Knoxville/Knox planning a neighborhood tour, (Route 40)maintained by the bleated there,a growing num- County MPC,Suite 403, City/ designing a community,solv- State,the State needed to approve mer of communities are develop- County Bldg., Knoxville, TN ing a community problem,or any changes to the lighting ing programs not just to teach 37902; (615)521-2500. documenting recreational scheme.In order to meet their :hool children about planning, opportunities. I have spoken to requirements,"street"lights— _ut to give them a greater Scouting one local troop working on thirty foot poles—were required. awareness of—and sense of for Planners this badge,and we had great The result we now have in place evolvement in—their own city fun talkingabout our commu is a two-tier system with the thirty COLUMBUS INDIANA foot high street lights following a _r town. We continue to invite nity.According to Sandy staggered pattern and ten foot high you to share any related expert- (The following account was Welliber of the Tulip Trace g prepared by K.K. Gerhart-Fritz, pedestrian lights spaced in be- -ices you have had]. Council here in Columbus, tween generally following a flank- A1CP, a planner with the Co- "Unfortunately,these two _ The Knoxville/Knox lumbus/Bartholomew County ing pattern.Typically one tall pole Court Metro olitan Plannin community badges are not is followed by two short poles. P g Planning Dept., in Columbus, commission,in 1991,intro- i used very often. Part of the This pattern works well because Indiana]. reason is that the leaders don't the"airport runway-appearance uced an educational program flanked called "Box City" to third How many of you were know who to turn to for help." created by two continuous evergirl or boy scouts? I lines of ten footpoles is broken readers at two elementary > Along similar lines, the boy by Today's scouts have a multi- scouts haveit badge the staggered pattern of the thirty a mer hook. Box City is a fun andfoot lights.At the same rime,both zrtnovative wayof teachingtude of fascinating badges to called "Citizenship in the earn that prepare them to be Community."Requirements the pedestrian and the driver have children about city planning, j adequate lighting. Lid use,and citizen participa- better citizens,including for this badge include describ My second point concerns badges with a planning focus. ing the community,including _.on. holiday decorations.Like most Planners can assist scouts in its future,or locating a variety communities Hagerstown Through a series of class- earning those badges. of land uses on a mapof the g rstow•n puts up tom lessons and visits from g g decorations between the Thanks- Admittedly,I am the last community. The boy scouts giving and New Years holidays... cal planners and architects, person some would expect to also offer the "Environmental The point is,as part of the basics, the students learn about the push the merits of scouting. I Science"merit badge,which don't forget about decorations.If nctions of different building left the girl scouts shortly after may be of interest to planners you switch from"street"to"pe- pes. With the planners'help, I threw up on my leader when with an environmental focus. destrian"lighting you will prob- They begin to think about the she made me eat canned My daughter Kelly is only ably have to invest in new decora- •ieeds of the people living in peaches at a camp-out.My eighteen months old. But in Lions.As it turned out,we bought heir" city. The planners talk departure was a mutual deci- the meantime, I have volun- lighted garland to wrap tightly T6 the students about land use around the ten foot poles,and sion,and I have to admit that teered to be a resource person added banners on the thirty and the compatibility of uses. foot at the time I wasn't too disap- for my local girl scout council. to students are then given poles.The overall effect is greatly pointed. The merit badges our As a planning commissioner, enhanced by the mixed use of tall boxes and assigned a troop worked on were ones you might also provide this staggered and flanking patterns. It building to create. During the that taught me how to do kind of assistance—it's an glooks beautiful.A spin-off effect sembly of Box City,students something.not how to be enjoyable way to offer kids the has been that the merchants are __ace their buildings on a grid, someone. benefits of what you've putting up lighted garland on their one at a time,and explain But comparing my luke- learned. storefronts during the holiday's. ' eir choice. warm memories of twenty For more information con- Richard L. Kautz Professional planners,as years ago with today's scout- tact K.K. Gerhart-Fritz at: (812) Director of Planning well as elected and appointed ing, I am excited about what 376-2550. Hagerstown,Maryland — PLANNING COMMISSIONERS JOURNAL NUMBER 5 JULY / AUGUST 1 99 2 PLANNING LAW PRIMER An Introduction to Subdivision Regulations by Martin L. Leitner,Esq.,and Elizabeth A. Garvin, Esq. t first glance, subdivision apply directly for final plat approval.The pre- and design. If required by law,the planning liminary plat is a detailed set of documents commission holds a second public hearing regulations can appear to be a and maps, showing: lot and street layout; before taking action on the final plat. After confusing collection of rules and connections to utilities;the location of natu- the final plat is approved,the subdivider for- restrictions designed to confound the devel- ral features and topography;and the location mally records it. oper and planning commissioner alike.For- of nearby parks and recreational facilities. COMPLETION &MAINTENANCE tunately,the regulations are generally not as The preliminary plat is normally first re- OF IMPROVEMENTS inaccessible as they first appear,and in many viewed by staff for completeness and compli- -- communities subdivision regulations pro The cost of needed improvements to vide the backbone of a successful planning * ,, ,� , . serve the subdivision—roads,drainage fa- J. program. One cautionary note: subdivision a• , 1IN i RY; T cihties,water and sewer systems, land.scap-_ regulations do vary from community to ..:'..,..-?1: '' -` - -- -x mg,utilities,fire protection equipment,and de- community;we have tried to base our cornPROVAL't A..7 .1-4.•:-.._:. street signs—is typically borne by the de menu on then of provisions we've found - GN1F_IC_ NTdM!LESTONE veloper.While municipalities could require �" the actual completion and dedication of all to be most typical. REPPCt+�NI + public improvements before final plat ap- THE APPLICATION O EN "` � ,-,..,..70",-...:,;,,r proval, this is not often done. Instead• ap- AND APPROVAL PROCESS 'R. r 1 proval is typically conditioned on the devel-- Generally,subdivisions are divided into .' It N if 1 _ 1 1 -, oper providing adequate financial guaran- "major"or"minor"applications.Minor sub- t t LSSIOAi. LL�- ..- tees,such as a cash escrow or letter of credit, divisions are those that.because of the small - , - ' that the required improvements will be corn-- number of lots created,or the lack of a need RO ISTENT pleted. for public streets or other public facilities, .,. � c. When the improvements are completed, can be approved in an expedited manner. ' .:'� , -Y the municipal engineer will usually inspect- • ,� t: Major subdivisions, in contrast, require a "` z<. r 1*, ;:, ~ them and certify that they are consistent with .:-;:"--4,7".- 1-::::-1-4-----7-1'''-:---..--'-':---:more extensive review. ' "}'' the approved plat and are acceptable to the For both types of subdivisions, the first - municipality.The municipality will then re- _ step in the approval process is often the sub- ance with the design and development scan- lease the security that was required of the mission of a sketch plat,on which the appli- dards contained in the subdivision regula- developer. cant presents the basic concept of the subdi- eons. Following this, it is referred to the In the next issue of the Journal we will vision. A meeting is typically held between planning commission for evaluation. The continue our introduction to subdivision the applicant and the local planning official Planning commission usually'holds a public regulations.We will also briefly discuss the to determine which procedure the applicant hearing on the preliminary plat before tak- question of"antiquated subdivisions" —a must follow—major or minor subdivision. ing action. major problem in a number of states -- Additionally,the sketch plat allows the local Planning commissions often approve where many subdivisions were platted be- planning official to initially determine if the preliminary plats,but impose various condi- fore local governments adopted subdivision project complies with local,state and federal tions.For example,a commission may con- controls. - law,including the jurisdiction's zoning ordi- dition approval on dedication of land for publicparks;hook-ups topublic sewer and Martin L. Leitner is a partner with Freilich, nance and comprehensive plan. Projects Leitner,Carlisle&Shortlidge in Kan cas City,Mis- which comply with all applicable regulations water; construction of interior and perim souri,specializing in land use law.He is currently are allowed to proceed to preliminary plat eter streets;or payment of impact fees. working on projects in Monroe County, Florida; approval.Sketch plats are also frequently'cir- Preliminary plat approval is a signifi pierce County, Washington;and Hilton Head Is- culated to other local and state agencies for cant milestone for the applicant, who can land South Carolina. - review and comment. Fundamentally, the then proceed with some confidence that the sketch plat serves as an early warning system commission will approve a consistent final Elizabeth A. Garvin is an associate attorney for both the applicant and the municipality. plat. The final plat provides more detailed with the same firm. She is assisting several local Following sketch plat approval,the sub- engineering and design drawings — it governments with the revision of their land devel-- divider may be directed to apply for prelimi- should not, however, contain significant opment ordinances. nary plat approval, or bypass that step and changes in the development's overall layout PLANNING COMMISSIONERS JOURNAL NUMBER 5 JULY / AUGUST 1 9 9 2 The Evolution of Following World War II,subdivision Following a visit to the United States ,� Subdivision regulations entered a third phase with in 1842, Dickens wrote: _ \ Regulations: the emphasis shifting to the needs of new "A dismal swamp on which the_ half- subdivision residents for public open built houses rot away; cleared here and In the late 1800's and early 1900's, space,parks and recreation facilities and there for the space of a few yards,and the westward expansion of the United adequate streets bordering the subdivi- teeming with rank unwholesome vegeta- States left a trail of land speculation sion. Local regulations reflected these don,in whose baleful shade the wretched which distorted the growth of communi- needs by imposition of new requirements wanderers who are tempted hither, ties. The uncontrolled subdivision of for mandatory dedication of roads,park droop and die,and lay their bones; the land resulted in inadequate streets, land,school sites and open space,and by hateful Mississippi circling and eddying sewers and water mains,and in the the use of innovative requirements for before it,and off upon its southern extension of public services far beyondpayment by subdividers of money in-lieu course,a shiny monster hideous to their usable capacity. Urban areas of land. . behold;a hotbed of disease,an ugly suffered from disorderly,chaotic growth In spite of these expanded regula- sepulchre,a grave uncheered by any _and depressed land values. dons,urban sprawl and its attendant gleam of promise;a place without one Early subdivision regulations, problems continued. New techniques single quality,in earth or air or water, to however,were not designed to eliminate began to emerge which more closely commend it,such is this dismal Cairo." the problems of speculation and sprawl. linked the three principal police power From E. Rachlis&J. Marquese, The Prior to 1928. the purpose of subdivision controls of zoning,subdivision,and Landlords, pp. 37-40 (1973). regulation was to provide a more environmental regulations to assure that ,efficient method for selling land by new development did not impose Glossary: permitting a seller to record a plat which unreasonable negative impacts on the SjkMoney-in-lieu-of land a divided a large parcel of land into community. In addition,subdivision sequentially numbered blocks and lots. regulations were expanded to help time requirement imposed by local `Sales of the land were then recorded in and phase the development of the government on new development for the the office of the county clerk or recorder payment of money into a municipally community. of deeds by reference to the blocks and earmarked fund instead of dedicating Recent years have witnessed several land. The advantage of money in lieu-of- -lots. important trends in subdivision regula land for the community is that the funds A second period of subdivision don: first,subdivision approvals are can be used to acquire the most desirable regulation commenced in 1928 with the increasingly being predicated on the publication of the Standard City Plan- availability of adequate public services land,rather than that which may be nin EnablingAct ("SPEA") by the offered by the developer. For developers, g and facilities concurrent with the impacts in-lieu payments allow for a clearer _United States Department of Commerce. of the development;second,impact fee The SPEA offered a partial response toidentification of development costs. Po payments are being required of develop Impact Fees: charges levied by local the problems created by land speculation ers who create a need for or benefit from and premature subdivision. It required governing bodies against new develop- andq the provision of public facilities such as ment for its pro-rata share of the capital iinternal improvements to be made in the roads,parks, libraries,and water and subdivision;and addressed issues such costs of facilities necessitated by the sewer facilities;and third,land use development. Impact fees further expand Tas: the arrangement of streets in relation decisions are being more closely exam- to other existing orplanned streets and local government's flexibility to provide g fined in terms of their consistency with the these needed capital facilities. to the master plan; the provision of community's comprehensive plan. Concurrency: the requirement that adequate and convenient open spaces, utilities,access of fire fighting apparatus, Land Speculation: the public facilities needed to serve a new recreation, light and air;and the avoid- development be available at the time the _ante of population congestion,including One of the more famous victims of development is built. land speculation was Charles Dickens. In Consistency: the requirement that minimum width and lot areas. Many the 1840's,Dickens invested—more subdivision regulations, zoning regula- states soon adopted subdivision enabling legislation patterned after the SPEA and than he could afford—in prime land dons and capital improvements programs located in Cairo City, Illinois. Unfortu- be consistent with the comprehensive subdivision regulations gained accep tante as an important local land use nately for Dickens, this "prime land" was plan and each of its elements;and that control measure. submerged for the greater part of the individual land use decisions also be year. consistent with the plan. PLANNING COMMISSIONERS JOURNAL NUMBER S JULY / AUGUST 1 9 9 2 s4' ETHICS & THE PLANNING COMMISSION a Revisiting Conflicts of Interest - by C. Gregory Dale,AJCP ince my first column,which in deliberations on the matter.On the other with the applicant and abstain from voting ties t with conflicts of interest, I hand, if the commissioner can honestly or participating in any deliberations on these evaluate such a development proposal fairly matters. have received several questions and without bias toward either the environ- Neither of the situations discussed— from iscussedfrom readers facing potential mental issue or the group, then a conflict above presents a blatant conflict of interest would not appear to exist. situation such as would occur if a commis- conflict situations. sinner stood to gain a direct financial benefit One commissioner was involved withz F from a particular commission decision. In •an environmental group prior to serving on ',./•••- ..0.-%L.',.-- =• >`�- cases where the conflict of interest is not hisplanningcommission. Thisparticular -" 1)BLIC •,,-.., t . 4 clear-cut,commissioners should be sensitive— environmental group,which was concerned 'ERCLP'11ON OF Al ::...*:;4,„' � P� - .. to their community's"level of tolerance." with the protection of an environmentally -'f 4 .. M ISSIONERVOTING In some communities — especially sensitive stream, had successfully appealed ''.��' :.,-..:- '• , �: smaller ones where indirect conflict situs-_ -. E N�I�ONE IANGL decisions of the planning commission in the :. tions are harder to avoid—commissioners past. His question is whether or not he • 4 UESTED BY-ONE Or �5 :_, �.: - may have more leeway in dealing with con- should excuse himself from voting on issues ' :{ 'CUE v 1'8J) BE ' _ illus.Simply disclosingthe relationshipmay invoking the stream. Lei i. •. �. P . 1VAMACiN� fl1BE•Atbe sufficient. Other communities,however. Another commissioner asks whether his ,fir might well find that the same situation re- I�T7ZtI1� 1VD .�� g business associations with past, present, or .4 -- - ssg ; quires a commissioner to withdraw from par- future clients requesting zoning changes C ` 'D'IBIL1T3�)F. L � ` ticipating in the commissions discussion and poses a conflict of interest. .`tr MISSIONER , vote. In response, let me first point out that :;' - -4-.-.4;;;;- � While it is often up to commissioners to the Statement of Ethical Principles for Plan- _ discern their own community's limits,plan-- ning. published by the American Planning - •-- • •..r,: ".'••-••'• - - • ning commissions might be well advised tc Association, provides guidance. According set aside some time at a future meeting to to the Statement: The other factor which must be kept in discuss conflict situations and how they— "To avoid conflict of interest and even mind,however,is whether or not such a situ- should be handled.Many local commissions the appearance of impropriety, the public ation would create the public appearance or have adopted provisions in their by-laws planning official who may receive some pri- impression of a conflict of interest to the spelling out the types of conflict situations__ vate benefit from a public planning decision point that it damages the credibility of the under which a commissioner should abstain must not participate in that decision. The commissioner. from participating and voting. Such provi- private benefit may be direct or indirect,cre- As to the commissioner who has past, sions not only serve to boost public confl- ating a material personal gain,or provide an present or future clients requesting zoning dence in the planning commission,but can advantage to relations, friends, groups, or amendments, the concern is obviously that also narrow the number of situations in associations that hold a significant share of his decision may be influenced by the exist- which commissioners have to determine for the official's loyalty...." ence of. or potential for, financial gain. Past themselves whether a conflict exists. When this guideline is applied to the business associations pose less of a problem two situations described above, the critical than present associations or hoped for "fu C.Gregory Dale,AJCP, question is whether the individual planning ture clients."Even if the commissioner could is a planner with the firm of commissioner stands to gain a"private ben- honestly distance himself from the business Pflum, Klausmeier & efit" as broadly defined by the APA State- relationship with the individual appearing Gehrum,and works in their .* + ment.With regard to the first commissioner's before him,the public perception of a corn- Cincinnati,Ohio office.Greg • v` is also a past president of the — question,would the defeat of a development missioner voting on a zone change requested Ohio Chapter of the Ameri- , ,'- proposal along the environmentally sensi- by one of his clients (or potential clients) can Planning Association, _tive stream be perceived as a benefit to the would be very damaging to the integrity and antifrequent speaker at plan- environmental group that presumably still credibility of the commissioner—and of the ning and zoning workshops His column appears holds a share of the commissioner's loyalty? planning commission itself. regularly in the Journal. If that is the case, then the commissioner In this situation, the commissioner should abstain from voting or participating ought to publicly disclose his relationship — PLANNING COMMISSIONERS JOURNAL NUMBER 5 JULY / AUGUST 1992 FEATURE MapCompilation: — PLANNING THE PERFECT MAP by Thomas L. Millette, Ph.D. (Editor's Note: In the Journal's March/ 1:5,000,000 scale map of North America -pril 1992 issue, Tom Millette discussed ba- would not be very helpful because it would sic information about maps and their use in not have many of the important land fea- of residential, commercial and industrial tanning. In this second article Tom covers tures necessary to produce a useful map of zones. Most maps are dominated by a ,ae"nutty gritty"aspects of map compilation single data theme. Using multiple themes Cape Cod. In other words,the scale of the — the process of gathering and combining in a single map often results in a confusing North America map would be much too iformation that is put into a map. It will map because too much information is besmall to provide sufficient spatial resolu- _take you realize that there's often a lot that ing displayed.Thematic data is drawn from non for the larger scale local map. goes into developing the finished maps that Generalization and Classification. The a variety of sources including: field studies tanning commissions work with. Tom will and interviews,satellite imagery and aerial nchis seriesarticles withan over- processes of generalization and classifica- _ lude of tion are the heart of the map compilation photos, other maps, statistical abstracts view of geographic information and database and printed material. process.It is these two processes that trans- ianagement systems—tools that are rap- form the raw base and thematic data into a _Ily expanding in use by planning agencies]. . - _.� useable map.Generalization is the process -!--:-.,``..;,;4.-,..4 of distilling a complex set of data to a sim- .he process of map Complla- ; � pier form without losing its essence.With ,.. r ar f•.s s _iori is extremely important since k . ;'�11 ►'IEl)BY -INGLE- ! base data,for example,cartographers usu- TAIE. SING '5--.--4 ally generalize coastlines since attempting the quality and usefulness of a ,-._-•---4,44.-...-.,. .,,,,...w:4--.4.• r 7i,= to preserve each coastal detail on a map Lap are the direct result of the procedures P 'S.; ,-�• would not be practical.With thematic data, used to compile it. These procedures in- - .1NGLE ,XJEN - a related ofgeneralization—usually .. - f: --:,.z , ,4..�. ..- type dude the selection, assembly, processing . - 11l�4n A f�,,,T referred to as "classification" — involves nd graphic display of the information 14 4 r.,4 consolidating categories or classes of data. ..sed to create the map. =* `- 6 e For example,when Census Bureau popu- EI _ ILT} I��. TYPES OF DATA USED lation statistics are used,it is often impor- t ORMATI -. EING LN COMPILING A MAP �; -,. ."'N tant for the person compiling the map to The mapcompilationprocess requires R ISP1-I ED - S consolidate the very detailed census infor- P q .ice- X. ` .- - , -_-_--.;ems 'he organization and processing of two -ilk.. �e. ► matron into more general categories. This " "�� ~2r �` : sort of data classification is essential so that ifferent types of information: base data -and thematic data. the mapped information can be readily' Base data provides the "context" for a THE COMPILATION PROCESS grasped and understood.The processes of :lap. It includes geographic features such generalization and classification help make -as political boundaries, place names, ma- Data Selection. Data selection is an maps more "readable." for cities, rivers and other landmark fea- important consideration in developing a Symbolization.Symbolization involves map because the quality of the data used the choice of which "symbols" to use to ares that provide the map reader a geo -graphic setting for the mapped informa ultimately determines the map's useful represent the data being displayed on the ton. Base data also includes the other es- ness.The most fundamental aspect of data map.For example,in a population map of ential elements of a map(such as the map selection is deciding what to include or counties the choice might be between us- -rale,scale,latitude and longitude lines,and omit from the map. Decisions must be ing different levels of gray shading or using legend) that I described in my previous made, for example, as to which rivers, point symbols such as proportional circles rticle. See page 6 of the March/April 1992 lakes,roads and other geographic features where the relative size of the circle reflects to include.This is often related to the scale -7.�urnal. This non-geographic base data magnitude of population. This step in the provides valuable descriptive information of the map — and the resulting "resolu map compilation process is of critical im- aat makes the map more useable. tion." portance.A map that has a poorly designed _ Thematic data is the subject of the To give an example: suppose you are symbolization scheme will not connect trying to compile a land use map for Cape with the map reader, and will fail as a map. For example, the thematic informa ,on in a land use zoning map is the display Cod, Massachusetts. Use of data from a continued on page 14 PLANNING COMMISSIONERS JOURNAL NUMBER 5 JU Ly / AUGU ST 1992 0 Map Compilation 1:5,000). Maps intended for regional use SUMMING UP: continued from page 13 should be compiled at smaller scales, The process of taking a map from con- spatial communication device. somewhere between 1:20,000 and cept to reality involves a host of consider- Generally speaking, the gteater the 1:100,000. [Editor's Note:See Tom Millette's ations. Compiling a map that is geographi-_ amount and complexity of information previous article for a discussion of the impor- cally correct—and graphically effective— contained in a map,the more detailed the tante of map scale, at page 5 of the March/ is no small accomplishment. Compiling a symbols will be. Since many planning April issue]. map takes thought and careful planning. maps are intended to be read by the gen- Above all, those compiling the map must eral public,it is important to keep symbols - • •`•-= keep in mind the needs of the map users, as graphically simple and understandable `►SINCE MANY PLANNING and ensure that the map accurately con- as possible. MAPS ARE INTENDED TO : veys information in a readable manner. Scale and Coordinate Transformations. c: . � E READ BY THE Thomas L. Millette, Scale changes and coordinate transforma- ..)r,ENERAL PUBUC IT IS . Ph.D. is Assistant Professor I tions are the mechanical hurdles involved - - - PORTANT O KEEP. ,-.J.:-,.- - = and Director of the Labora- in transferring and combining information M tory for Spatial Analysis in14 from different map sources.Because maps •"�:;_ YMBO S AS the Department of Geogra- often use different scale,projection or co pjjl y jl1+PLE 'r :, phy,University oJMary land ordinate systems, significant amounts of `` > : Baltimore County, Mary- UNDER UNDERSTANDABLE -. time and effort can be consumed in trans- �,� '� � land.Dr.Millette's research POSSIBLE . x �~� ferring mapped information from source },j„ z s interests are in the applica- `� -- . . tion of geographic information systems and remote maps to the compilation draft. � r � Techniques used for transferring in- .'"_,,4".:-ham ; ::: >:.' "-:' sensing to regional planning and environmental formation between maps can be grouped management.In addition to teaching and research, Tom is an advisor to the Natural Resources Defense into three general classes: optical, me- The data presentation format involves Council in Washington,DC and to numerous staff chanical, and digital. Optical techniques how the map maker intends to communi- and regional planning agencies. involve using projectors, cameras and tate the spatial data to the map reader. • transfer scopes to change the sizes and There are a wide variety of map presenta- shapes of map features to allow their trans- tion formats, including choropleth maps, r _ _ fer from one map to another. Mechanical isarythmic maps,point symbol maps and • Getting techniques use some type of mechanical cartograms.Choropleth maps display data . Comfortable tracing device to transfer information from by political or administrative geographic 1 z With Maps one map to another.Digital techniques use unit. A map that illustrates mean family i computers and digital map representations income by census tract is a typical example j The compilation and subsequent to transfer information from one map to of a choropleth. lsarythmic maps,in con- i production of a map is as much art as another. Because digital techniques use trast,depict data in zones of similar value science.Spend some time browsing _ mathematical transformations,they are the unconstrained by political or administra- €` through the atlas collection of your t easiest and most flexible to use. Given the tive units. A topographic map that uses local library.By investing time extremely accessible and affordable micro- contours to illustrate areas of similar el- l thumbing through several atlases you .. computer hardware and software for map- evation is a commonly used isarythmic can get a wealth of ideas provided by [ some of the best cartographers in the ping now available.digital techniques rep- �Peofmap` Points bol maps use indi- ` world today.For a fascinating over- resent the best and most cost effective so- vidual symbols placed at discrete locations • view of the enormous variety of maps lution to scale and coordinate transforma- to represent an occurrence or quantity of available,take a look at The Map tions. data. For example,a common point syn Grog by Joel Makower(Tilden The Compilation Work Sheet.The work bol map most of us are familiar with shows pry 1986)—a book written for the sheet or draft map is the frame upon which relative city population by displaying ,- layperson.If you have never explored the compilation process builds a map.The graduated circles proportional to popula- t the numerous types of mapping two most important considerations perti- tion at the locations of the cities. related data that are commonly avail- nent to the work sheet include its scale and There are a wide variety of creative . able from federal,state and local its data presentation format. The most approaches to presenting data in a map. it. government sources you may be quite important factor in deciding on the map The draft map provides the opportunity to f surprised by their breadth and depth. scale of a work sheet is the intended use of test different map presentations and data i Another good source is Judith Tyner's the map. If the map is intended for local symbolizations in order to develop the 1 Introduction to Thematic Cartography use it should ordinarily be compiled at a most effective graphic design for a partial- f (Prentice Hall 1992). relatively large scale (between 1:500 and lar map. fs PLANNING COMMISSIONERS JOURNAL NUMBER 5 JULY / AUGUST 1 9 9 2 S.2 I Urban Design...g •• der which beauty can develop, beauty in a ff \aft Legibility continued from back cover town is not achieved by planning or build- [ To urban designers, —The underlying street order, itself often ing alone,but by time and events. A beauti- i deliberately obscured by a curved maze ful town takes a long while to make,which legibility means more than design,is not picked up by landscaping or is one reason we like older places.The plan- it good penmanship. Kevin Lynch,in the cit}'planning clacsie The Image of the — building facades,which seem to be march- ping commission can help this process along I. City,defined it this way: ing to their own individual drummers.The by concentrating on legibility: creating or- f der in street Just this printed page,if it is commercial street can be visually indis- layout,in setbacks,in site plan- legible, can be visually grasped __tinct from adjacent parking lots. And rung,in attention to the size and prominence as a related pattern of recogniz- unique landmarks have all but disap- of new projects. Beyond this, commission- i able symbols, so a legible city peared,while every discount store is iden- ers should ask — at a minimum — that I would be one whose districts or tical.Lose your way in some cities and you natural landscape be put to use,rather than . landmarks or pathways are eas- only have signs to save you. ignored.Similarly,planners should avoid the i ily identifiable and are easily The second issue is aesthetics,the gra- impulse to regularity and sameness, so that l grouped into an over-all pattern, _ cious and moving environment which has their community's individual character — Legibility is created by the use of coherence in all its parts, from streets to based on its unique history and geography s several important principles.The first buildings to windows to landscape to light- —is allowed to develop. is a clearly identifiable hierarchy of ing. Ask yourself: What makes a town This is the design role that the planning i places In older small towns,for beautiful? Certainly a beautiful town has commission can and should take, making fexample,the town square was usually the minimum qualification of legibility. sure that what gets built is authentic, con- ` the most important place—and the Beauty also seems to be tied up in the tributes to legibility, and recognizes the E buildings on it were the most promi- town's relationship to its site. Beautiful natural setting. nent and public ones. It would have towns are an outgrowth of the natural set- Brenda Lightner teaches i been unthinkable to build an ordinary ting,harmonizing and contrasting with the in the School of Planning at i apartment building or a nondescript plains, hills, harbors, forests, lakes, and the University of Cincinnati. `'' warehouse on the square. rivers. The importance of the natural set- Prior to moving to Cincinnati, r.. 1. A second principle is an underlying ting can also be found in the consideration Brenda worked as an urban de- �:,' ► order that is reinforced and repeated in --for climate and orientation and readily signer with the City of Boston, i , 7=1. t the overall design of the parts.Using a available materials. These often lead to a and was a Loeb Fellow in En- (EE predictable pattern of streets,and vironmental Studies at the \N- reinforcing the pattern by lining up the visual coherence that comes naturally from —using traditional building techniques, Harvard University Graduate - ‘ • ' i trees,buildings and sidewalks along materials and siting. In our world of air School of Design.Also of note,Brenda is helping put ; the street is a simple idea—but one together what promises to be a thought-provoking i not often exploited. Instead,plans are conditioning and international shipping, conference on design review issues,featuring many € often proposed with random street —we have allowed ourselves to ignore these excellent speakers.It's scheduled for Cincinnati,Ohio, € limitations which oncegave each commu- 4 networks,or buildings sited at odd this October 8-11.}'ou can contact Brenda for more �g rlity a unique and meaningful image. information. (513) 556-4943, or FAX: (513) 556- Kevin Lynch also emphasized the — A beautiful town has one more critical 3288. ! power of landmarks,which serve as attribute. It is authentic. It is the 1 visual clues to location and hierarchy. community's vision of itself. The promi t In older cities and towns,familiar _Tient buildings are prominent because they landmarks typically included the train represent power in the community, the Insights Needed t station,riverfront,memorial fountain, .vay courthouses and cathedrals used to and church Nowadays we tend to _io and major office buildings—for better We are hoping to find planning board l members to write for the"Insights"section of "bury"our landmarks under relatively or worse — do today. The public spaces the Planning CommissionersJournai,orcon- i unimportant signs,buildings,and road tre created and used by the public, not tribute to"News Notes."Tfyou have some- t networks. __reated by out-of-town developers for use thing interesting orinformativeyou'd bewill- i by the tourists.What appears to be an old ing to share with other planning commis- ')uilding really is an old building — its sioners from across the country,please give =:ontinuing existence, its very physical us a call (or write). We would be glad to presence is a marker of the collective will discuss any ideas—oranswer anyquestions if the town, and the town's desire to pre- —you might have. 1. _Verve a memory. Wayne Senville,Editor While we can take positive steps as planners to create the circumstances un- 1 i _ t PLANNING COMMISSIONERS JOURNAL NUMBER 5 JULY / A U G U S T 1 9 9 2 i E 1 INSIGHTS Urban Design: A PLACE IN PLANNING - or some time now urban by Brenda Lightner There are two issues involved when people talk about dissatisfaction with their planning has been the realm of surroundings:the first is le more appealing public environment.There physicalibilit legibility statisticians, lawyers, zoning is a growing awareness that the quality of or the ability to understand the order of a - administrators, and municipal engineers. the physical setting is an important ele- place and to find your way around in Recently, however, there has been a pro- mem of the quality of life of a place.This is it p.15 The second is aesthetics,which nounced move back to what clearly is the where the planners and the planning corn- is the sensory effect of beauty. The old origin of the impulse to plan: the appear- mission get involved. fashioned ideal town,whether itis the elm ance and "legibility" of the physical form Producing a beautiful or even orderly tree lined Main Street variety or some other of the community. Perhaps it is because town is a tricky problem, especially from model,usually has legibility in spades.This - many of us are dissatisfied with our physi- the perspective of a local planning com- means,among other things, that it can be cal environment—at least the part that's mission. Sometimes we carry around an easily understood, that a mental map of been built in the last forty years. ideal town in our heads: for many people the place can be easily constructed simply- this is the place they by walking or driving around. J t -:"Zi--1- ' : i`�. `•- grew up,and for others, In our modern landscape,legibility is _ ' ' it is a place they have often lost. Hierarchy is confused: which +rip. _ 'Itaces and buildin s are the most im r.yF _, ,e:.; ,, • visited, like Nantucket, sp g Po_ J tant and how do we know? Our most �' ��'�`= '��'� � ' ti ''- ' Y' � e�, San Francisco, Paris, or - 1. ' . prominent buildings are shopping malls_ ` , - ��,`� C . r -t��• - - - - c _ Santa Fe. To solve the g PP g I -k `:=r - `` " '�' �L-, conflict between our and office towers,usurping the place that , ...T � ` ;• y. ideal vision and the re- churches and courthouses used to occupy. 1 ality of our cities and continued on page 15_. _ . ..... 1 . -i: i,l` �f' towns, some planning " '� - N„.,. ......A , . `ice 3 - • agencies have begun to . - - -3 � formulate urban design -_ _ y—=_ PLANNING - - — plans which seek to cap- COMMISSIONERS • _ tore the collective vision Typical "Main Street"has legibility,despite the varied storefronts. of their town or com- munity. Duma r ,- - -- -- •.s.rn The connection between the collec- tive ideal or vision—even if you have one In Coming Issues». ` i —and the weekly act of sitting in the plan- _ i •More on subdivision regulations. -� s p ping commission meetings and ruling on a fi • • Design guidelines that help people. = . , • - .n _, zoning variance can be very tenuous. '6!". "b''Y . i:-. Sometimes •important decisions about •Planning for bicycles. :-� .._ • Transportation planningfor traditional • � -_.�•�"" ' � -_- physical character are beyond the tradi- Po -:� -.� •-..,,,,,,,L1... -- tional scope of planners, for example, the developments.•-..,,,,,,,L1... • Regulating aesthetics—what to watch out for. — Today's . .- ,.. - -•.:- :• _ ... design of highways,or the location of ma- Su g Today's commercial strips leave us wondering jor utilities. Even when these actions lie •An introduction to geographic about the order of the space. within the purview of the planning corn- information systems. mission,they are difficult to decide on aes- — •And more from our regular columnists! Although convenience stores, strip thetic grounds: economics, land use con- shopping centers and fast food chains are flicts,law,safety,and politics usually come clearly popular,their looks and the overall first,Yet, it is the sum of the incremental - character of the town that they create make decisions, the ones made day after day, us yearn for good old Main Street. People which ultimately shapes the order and the are beginning to ask for a less chaotic,and place. - PLANNING COMMISSIONERS JOURNAL NUMBER 5 JULY / AUGUST 1 9 9 2 CAMPBELL, KNUTSON, SCOTT & FUCHS, P.AJULRECEI1 6V1992E ] Attorneys at Law CITY OF CHHIvt1ASSUr ' Thomas J.CamncN:11 (612)452-5000 Roger N. Knutson Fax(612)452-5550 mom,m.Scott Gan G.Fuchs lames R.Wal:ron Elliott B.Knersch Michael A.Bnakack July 14 , 1992 Renac D.Steiner Mr. Paul Krauss Chanhassen City Hall 690 Coulter Drive, Box 147 Chanhassen, Minnesota 55317 Dear Paul: Enclosed is the first significant United States Supreme Court land use decision since 1987 . The land owner purchased two beach front lots for just under $1, 000, 000. No sooner had the ink dried on his deed when new regulations were enacted prohibiting him from obtaining any building permits. The issue before the court was "under what circumstances can the government deprive a landowner of all economi- cally viable use of land without having to compensate the landowner" . The majority opinion rejected traditional analysis that compensation was not necessary when the use was "harmful or noxious" . The South Carolina legislature in this case found that to allow the construction of a home close to the beach would result in all sorts of bad things happening. The court held that compensation is not due only when the use would constitute a nuisance. The court then noted "it seems unlikely that common-law principles would have prevented the erection of any habitable or productive improvements on petitioner's land; they rarely support prohibition of the 'essential use ' of land. . . " . The court did not decide whether the landowner was entitled to compen- sation. The court remanded the case to the trial court to make the decision in light of the court ' s opinion. My guess is that he will receive substantial compensation. The full impact of this decision will not be understood for years. The most likely areas to be impacted will be the protection of wetlands. Very truly yours, CAM''BELL, KNUTSON, SCOTT & y_ . BY: Roger N. Knutson RNK: srn Enclosure Suite 317 • Eagandale Office Center • 1380 Corporate Center Curve • Eagan, MN 55121 L 60 LW 4842 The United States LAW WEEK 6-30-92 demonstrate, to protest that we do not implement their briefs) for petitioners/cross-respondents; ERNEST D. PREATE JR., values instead of ours. Not only that, but confirmation Pennsylvania Attorney General (JOHN G. KNORR III, Pa. Ch. hearings for new Justices should deteriorate into question- Dptq.Atty.Gen.,and KATE L.MERSHIMER,Sr.Dpty.Atty.Gen., on the briefs) for respondents/cross-petitioners; and KENNETH W. Ai. "%_ and-answer sessions in which Senators go through a list of STARR, Solicitor General (STUART M. GERSON. Asst. Atty. their constituents'most favored and most disfavored alleged Gen.. PAUL J. LARKIN JR., Asst. to Sol. Gen., THOMAS G. constitutional rights, and seek the nominee's commitment HUNGAR, Asst. to Sol. Gen., and ALFRED R. MOLLIN, Justice to support or oppose them. Value judgments, after all, Dept. atty., on the briefs) for U.S. as amicus curiae supporting should be voted on,not dictated;and if our Constitution has respondents. somehow accidently committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward. JUSTICE BLACKMUN No.91-453 not only regards this prospect with equanimity, he solicits it,ante, at 22-23. DAVID H. LUCAS, PETITIONER L'. SOUTH C.AROLLNA * * *• • COASTAL COUNCIL There is a poignant aspect to today's opinion. Its length, ON WRIT OF CERTIORARI TO THE SUPREME COURT OF SOUTH and what might be called its epic tone, suggest that its CAROLINA authors believe they are bringing to an end a troublesome era in the history of our Nation and of our Court: "It is the . Syllabus _ dimension"of authority, they say, to "cal,l] the contending sides of national controversy to end their national division No.91-453. . Argued March 2, 1992—Decided June 29, 1992 by accepting a common mandate rooted in the Constitu- In 1986, petitioner Lucas bought two residential lots on a South tion." Ante, at 24. .. Carolina barrier island,intending to build single-family homes such There comes vividly to mind a portrait by Emanuel as those on the immediately adjacent parcels. At that time,Lucas's Leutze that hangs in the Harvard Law School: Roger lots were not subject to the State's coastal zone building permit Brooke Taney,painted in 1859,the 82d year of his life,the requirements. In 1988, however, the state legislature enacted the Beachfront Management Act, which barred Lucas from erecting any 24th of his Chief Justiceship, the second after his opinion permanent habitable structures on his parcels. He filed suit against — in Dred Scott. He is all in black, sitting in a shadowed red respondent state agency, contending that, even though the Act may armchair, left hand resting upon a pad of paper in his lap, have been a lawful exercise of the State's police power,the ban on right hand hanging limply, almost lifelessly, beside the construction deprived him of all "economically viable use"'of.his inner arm of the chair. He sits facing the viewer, and property and therefore•effected a "taking" under the Fifth and — staring straight out. There seems to be on his face, and in Fourteenth Amendments that required the payment of just eompensa- tion. See,e.g.,Agins v.Tiburon,447 U. S.255,261. The state trial his deep-set eyes, an expression of profound sadness and court agreed, finding that the ban rendered Lucas's parcels "value- /-"N disillusionment. Perhaps he always looked that way, even less,"and entered an award exceeding$1.2 million. In reversing,the when dwelling upon the happiest of thoughts. But those of State Supreme Court held itself bound,in light of Lucas's failure to ' us who know how the lustre of his great Chief Justiceship attack the Act's validity,to accept the legislature's"uncontested . .. came to be eclipsed by Dred Scott cannot help believing that findings" that new construction in the coastal zone threatened a valuable public resource. The court ruled that, under the Mugler v. he had that case—its already apparent consequences for the Kansas, 123 U. S. 623, line of cases, when a regulation is designed Court, and its soon-to-be-played-out consequences for the — to prevent "harmful or noxious uses" of property akin to public Nation—burning on his mind. I expect that two years nuisances, no compensation is owing under the Takings Clause earlier he, too, had thought himself"call[ing] the contend- . regardless of the regulation's effect on the property's value. ing sides of national controversy to end their national Held: - division by accepting a common mandate rooted in the • 1. Lucas's takings claim is not rendered unripe by the fact that he — Constitution." - may yet be able to secure a special permit to build on his property under an amendment to the Act passed after briefing and argument It is no more realistic for us in this case, than it was for before the State Supreme Court,but prior to issuance of that court's him in that, to think that an issue of the sort they both . opinion. Because it declined to rest its judgment on ripeness _ involved—an issue involving life and death, freedom and grounds, preferring to dispose of the case on the merits, the latter subjugation—can be "speedily and finally settled" by the court's decision precludes, both practically and legally, any takings Supreme Court, as President James Buchanan" in his claim with respect to Lucas's preamendment deprivation. Lucas has inaugural address said the issue of slavery in the territories properly alleged injury-in-fact with respect to this preamendment would be. See Inaugural Addresses of the Presidents of the deprivation, and it would not accord with sound process in these United States, S. Doc. No. 101-10, p. 126 (1989). Quite to circumstances to insist that he pursue the late-created procedure before that component of his takings claim can be considered ripe. the contrary, by foreclosing all democratic outlet for the 2. The State Supreme Court erred in applying the "harmful or deep passions this issue arouses, by banishing the issue noxious uses"principle to decide this case. _ from the political forum that gives all participants,even the (a) Regulations that deny the property owner all "economically losers,the satisfaction of a fair hearing and an honest fight, viable use of his land" constitute one of the discrete categories of by continuing the imposition of a rigid national rule instead regulatory deprivations that require compensation without the usual case-specific inquiryinto the public interest advanced in supportof of allowing for regional differences, the Court merely the restraint. Although the Court has never set forth the justifica- — prolongs and intensifies the anguish. tion for this categorical rule, the practical—and economic—. We should get out of this area, where we have no right to equivalence of physically appropriating and eliminating all beneficial be, and where we do neither ourselves nor the country any use of land counsels its preservation. - - good by remaining. (b) A review of the relevant decisions demonstrates that the harmful or noxious use" principle was merely this Court's early formulation of the police power justification necessary to sustain KATHRYN KOLBERT, New York, N.Y. (JANET BENSHOOF, (without compensation)any regulatory diminution in value;that the LYNN M.PALTRO\V,RACHAEL N.PINE,ANDREW DWYER, distinction between regulation that"prevents harmful use"and that ELLEN K. GOETZ,STEVEN R. SHAPIRO, JOHN A. POWELL, which "confers benefits"is difficult, if not impossible, to discern on LINDA J. WHARTON, CAROL E. TRACY, SETH KREIMER, an objective, value-free basis; and that, therefore, noxious-use logic ROGER K. EVANS,EVE W.PAUL,and DARA KLASSEL,on the cannot be the basis for departing from this Court's categorical rule 6-30-92 . The United States LAW REEK 60 LW 4843 that total regulatory takings must be compensated. •• subdivision known as 'Beachwood East," Lucas in 1986 (c) Rather, the question must turn, in accord with this Court's purchased the two lots at issue in this litigation for his own • `takings"jurisprudence,on citizens'historic understandings regarding account. No portion of the lots,which were located approxi- the content of,and the State's power over,the"bundle of rights"that they acquire when they take title to property. Because it is not mately 300 feet from the beach,qualified as a"critical area" consistent with the historical compact embodied in the Takings under the 1977 Act;accordingly,at the time Lucas acquired Clause that title to real estate is held subject to the State's subse- these parcels,he was not legally obliged to obtain a permit quent decision to eliminate all economically beneficial use, a regula- from the Council in advance of any development activity. - tion having that effect cannot be newly decreed, and sustained, His intention with respect to the lots was to do what the without compensation's being paid the owner. However,no compen- owners of the immediately adjacent parcels had already sation is owed—in this setting as with all takings claims—if the State's affirmative decree simply makes explicit what already inheres done: erect single-family residences. - He commissioned in the title itself,in the restrictions that background principles of the architectural drawings for this purpose. - • ' State's law of property and nuisance already place upon land owner- -The Beachfront Management Act brought Lucas's plans ship. Cf.Scranton v. Wheeler, 179 U.S. 141, 163. to an abrupt end. Under that 1988 legislation,the Council (di Although it seems unlikely that common-law principles would was directed to establish a "baseline" connecting the have prevented the erection of any habitable or productive improve- - menu on Lucas's land,this state law question must be dealt with on landward most"point[s]of erosion. . .during the past forty remand. To win its case, respondent cannot simply proffer the years" in the region of the Isle of Palms that includes • legislature's declaration that the uses Lucas desires are inconsistent Lucas's lots. §48-39-280(AX2) (Supp. 1988).' In action with the public interest,or the conclusory assertion that they violate not challenged here, the Council fixed this baseline land- s common-law maxim such as sic utere tuo ut atienum non laedas, •ward of Lucas's parcels. That was significant,for under the but must identify background principles of nuisance and property law that prohibit the uses Lucas now intends in the property's present Act construction of occupable improvements' was flatly circumstances. • - - •-- - prohibited seaward of a line drawn 20 feet landward of,and 304 S. C. 376, 404 S. E. 2d 695,reversed and remanded. '; ' '--r parallel to,the baseline,§48-39-29.0(A)(Supp.1988). The _ - - Act provided no exceptions. - SCALIA,J., delivered the opinion of the Court,in which REHNQUiST, B C.J., and WHITE, O'CONNOR, and THOMAS,JJ.,joined. KENNEDY,J., _ ..-2.'.!'--_ ..........• _ - _... filed an opinion concurring in the judgment. .BLACKMUN, J., and Lucas promptly filed suit in the South Carolina Court of STEVENS, J., filed dissenting opinions.. SOUTER, J., d ate - statement• filea separate Common Pleas, contending that the Beachfront Manage- . -- ment Act's construction bar effected a taking of his property .._- without just compensation. Lucas did not take issue with JUSTICE SCALIA delivered the opinion of the Court. the validity of the Act as a lawful exercise of South Caro- ._ In 1986,petitioner David H. Lucas paid$975,000 for two lina's police power, but contended that the Act's complete residential lots on the Isle of Palms in Charleston County, extinguishment •of his property's-value entitled him to South Carolina, on-which he. intended to build single- compensation regardless of whether•the legislature had ( family homes. In 1988, however,•the South Carolina acted in furtherance of legitimate police power objectives. —' Legislature enacted the Beachfront Management Act, S.C. Following -a bench' trial, the court agreed. Among .its Code §48-39-250 et seq. (Supp. 1990)(Act), which had the factual determinations was the finding that "at the time- direct effect of barring petitioner from erecting any perma- :Lucas purchased the two lots, both-were zoned for single nent habitable structures on his two parcels. See §48-39- family-residential construction and there were no - 290(A). A state trial court found that this prohibition restrictions imposed upon such use of the property by either rendered Lucas's parcels"valueless." App. to Pet. for Cert. the State of South Carolina, the County of Charleston, or- 37. This case requires us to decide whether the Act's the Town of the Isle of Palms." App. to Pet. for Cert. 36. dramatic effect on the economic value of Lucas's lots The trial court further found that the Beachfront Manage- - accomplished a taking of private property under the Fifth ment Act decreed a permanent ban on construction insofar I and Fourteenth Amendments requiring the payment of"just as Lucas's lots were concerned, and that this prohibition compensation." U. S. Coast.,Amdt. 5. .., . . "deprive[d] Lucas of any reasonable economic use of the _ I lots, ..•eliminated the unrestricted right of use, and • - render[ed] them valueless." -Id., at 37. The court thus A _ concluded that Lucas's properties had been "taken" by operation of the Act,and it ordered respondent to pay"just South Carolina's expressed interest in intensively compensation"in the amount of$1,232,387.50. Id., at 40. managing development activities in the so-called "coastal The Supreme Court of South Carolina reversed. It found zone"dates from 1977 when,in the aftermath of Congress's dispositive what it described as Lucas's concession"that the passage of the federal Coastal Zone Management Act of Beachfront Management Act (was] properly and validly 1972,86 Stat. 1280, as amended, 16 U. S. C. §1451 et seq., designed to preserve . . . South Carolina's beaches." 304 the legislature enacted a Coastal Zone Management Act of S. C. 376, 379, 404 S. E. 2d 895, 896 (1991). Failing an its own. See S. C. Code §48-39-10 et seq. (1987). In its original form, the South Carolina Act required owners of • ' coastal zone land that qualified as a"critical area"(defined 'This specialized historical method of determining the baseline applied in the legislation to include beaches and immediately because the Beachwood East subdivision is located adjacent to a so-called 'inlet erosion zone"(defined in the Act to mean"a segment of shoreline adjacent sand dunes,§48-39-10(J))to obtain a permit from along or adjacent to tidal inlets which is influenced directly by the inlet the newly created South Carolina Coastal Council(respon- and its associated shoals," S.C.Code§48-39-270(7)(Supp.1988))that dent here)prior to committing the land to a"use other than is 'not stabilized by jetties, terminal groins, or other structures," the use the critical area was devoted to on [September 28, §48-39-260(Al(2). For areas other than these unstabilized inlet erosion 1977]." §48-39-130(A). zones,the statute directs that the baseline be established"along the crest In the late 1970's, Lucas and others began extensive of the primary oceanfront sand dune." §48-39-280(A)(1). residential development of the Isle of Palms, a barrier 'The Act did allow the construction of certain nonhabitable improve- - menta,e.g.; 'wooden walkways no larger in width than six feet," and island situated eastward of the City of Charleston. Toward -small wooden decks no larger than one hundred forty-four square feet." the close of the development cycle for one residential §§48-39-290(AX1)and(2)(Supp. 1988). . . 60 LW 4844 The United States LAW WEEK 6-30-92 attack on the validity of the statute as such, the court generally First English Evangelical Lutheran Church of believed itself bound to accept ,the "uncontested . . . Glendale v. County of Los Angeles, 482 U. S. 304 (1987) findings" of the South Carolina legislature that new (holding that temporary deprivations of use are compensa- construction in the coastal zone—such as petitioner ble under the Takings Clause). Without even so much as intended—threatened this public resource. Id., at 383,404 commenting upon the consequences of the South Carolina S. E. 2d, at 898. The Court ruled that when a regulation Supreme Court's judgment in this respect, the Council respecting the use of property is designed "to prevent insists that permitting Lucas to press his claim of a past serious public harm," id., at 383, 404 S. E. 2d, at 899 deprivation on this appeal would be improper, since "the (citing, inter alia,Mugler v.Kansas, 123 U. S. 623 (1887).), issues of whether and to what extent [Lucas] has incurred no compensation is owing under:the Takings Clause a temporary taking. . .have simply never been addressed." regardless of the regulation's effect on the property's value. Brief for Respondent 11. Yet Lucas had no reason to Two justices dissented. They acknowledged that our proceed on a"temporary taking"theory at trial, or even to Mugler line of cases recognizes governmental power to seek remand for that purpose prior to submission of the prohibit "noxious" uses of property—i.e., uses of property case to the South Carolina Supreme Court, since as the Act - akin to"public nuisances"—without having to pay.compen- then read, the taking was unconditional and permanent. sation. But they would not have characterized the Beach- Moreover,given the breadth of the South Carolina Supreme front Management Act's "primary purpose [as] the preven- Court's holding and,judgment, Lucas would plainly be tion of a nuisance." 304 S. C., at 395, 404 S. E. 2d, at 906 unable (absent our•intervention now) to obtain further (Harwell, J., dissenting). ,To the dissenters, ;the, chief state-court adjudication with respect to the 1988-1990 purposes of the legislation, among them the promotion of period. ; "`'' . ' tourism and the creation of a"habitat for indigenous flora In these circumstances;we think it would not accord with and fauna," could not _fairly be compared to nuisance sound process to insist that Lucas pursue the late-created abatement. Id., at 396, 404 S. E. 2d, at 906. As a conse- "special permit"procedure before his takings claim can be quence, they would have affirmed the trial court's conclu- considered ripe. Lucas has properly alleged Article III sion that the Act's obliteration of the value of petitioner's injury-in-fact in this case,with respect to both the pre-1990 lots accomplished a taking. - and post-1990 constraints placed on the use of his parcels We granted certiorari. 502 U..,S. (1991).•i s•;r.__� by the Beachfront Management Act.' ` That there is a F :: discretionary "special permit" procedure by which he may I • . .= regain—for the future, at least—beneficial use of his land As a threshold matter, we must briefly address-the goes only to the prudential"ripeness"of Lucas's challenge, Council's suggestion that this case is inappropriate for and for the reasons discussed we do not think it prudent to plenary review. After briefing and.argument before the. apply that prudential requirement here: See Esposito v. South Carolina Supreme Court,but prior to issuance of that South Carolina Coastal Council, 939 F. 2d 165,'168 (CA4 court's opinion, the Beachfront Management Act was 1991),cert.pending,No. 91-941.' We leave for decision on. amended to authorize the Council,in certain circumstances, to issue"special permits"for the construction or reconstruc- • ._ - •- - =' tion of habitable structures seaward of the baseline._ See JUSTICE BLACKMUN insists that this aspect of Lucas's claim is'not S. C. Code §48-39-290(DX 1) (Supp. 1991). According to justiciable,"post,at 7,because Lucas never fulfilled his obligation under the Council, this amendment renders Lucas's claim of a Williamson County Regional Planning Comm'n v. Hamilton Bank of permanent deprivation unripe,as Lucas may yet be able to Johnson City,473 U.S.'172(1985),to"submiftl a plan for development secure permission to build on his property. "[The Court's] of(his]property"to the proper state authorities. 1d,at 187. See post, _ cases,"we are reminded,"uniformly reflect an insistence on at 8. But such a submission would have been pointless, as the Council knowing the nature and extent of permitted development stipulated Actbelowapplithatcatinoon buildiornongapermitpplication.wouldRhecordave been14 (stipuissueldatundionser), . before adjudicating the constitutionality of the regulations Nor does the peculiar posture of this case mean that we are without that purport to limit it." MacDonald, Sommer & Prates v. Article III jurisdiction, as JUSTICE BLACKMUN apparently believes, see County of Yolo, 477 U. S. 340, 351 (1986). See also Agins post, at 7, and n. 5. Given the South Carolina Supreme Court's v. Tiburon, 447 U. S. 255, 260 (1980). Because petitioner dismissive foreclosure of further pleading and adjudication with respect "has not yet obtained a final decision regarding how [he] to the pre-1990 component of Lucas's taking claim,it is appropriate for will be allowed to develop [his] property," Williamson us to address that component as if the case were here on the pleadings alone. Lucas properly alleged injury-in-fact in his complaint,see App.to County Regional Planning Comm'n of Johnson City v. Pet. for Cert. 154 (complaint); id, at 156 (asking "damages for the Hamilton Bank, 473 U. S. 172, 190 (1985), the Council temporary taking of his property"from the date of the 1988 Act's passage argues that he is not yet entitled to definitive adjudication. to"such time as this matter is finally resolved"). No more can reason- of his takings claim in this Court. :- ably be demanded. Cf.First English Euangelical Lutheran Church of - We think these considerations would preclude review had Glendale v. Courcy of Los Angeles, 482 U.S. 304, 312-313 (1987). the South Carolina Supreme Court rested its judgment on JUSTICE BLACFCMUN finds it 'baffling,'post, at 8, n. 5, that we grant standing hare, whereas "just a few days ago, in Lujan v.Defenders of ripeness grounds,as it was(essentially)invited to do by the Wildlife, 504 U.S. (1992)," we denied standing. He sees in that Council, see Brief for Respondent 9, n. 3. The South strong evidence to support his repeated imputations that the Court Carolina Supreme Court shrugged off the possibility of "presses"to take this case,post,at 1,is"eager to decide'it,post,at 10, further administrative and trial proceedings, however, and is unwilling to The denied,"post,at 7. He has a point:The decisions preferring to dispose of Lucas's takings claim on the merits. are indeed very close in time, yet one grants standing and the other denies it. The distinction,however,rests in law rather than chronology. Compare,e.g.,San Diego Gas&Electric Co.,450 U. S.621, Lujan, since it involved the establishment of injury-in-fact at the 631-632(1981). This unusual disposition does not preclude summary judgment stage,required specific facts to be adduced by sworn Lucas from applying for a permit under the 1990 amend- testimony;had the same challenge to a generalized allegation of injury- ment for future construction, and challenging, on takings in-fact been made at the pleading stage,it would have been unsuccessful. grounds, any denial. But it does preclude, both practically 'In that case,the Courtof Appeals for the Fourth Circuit reached the and legally, any takings claim with respect to Lucas's past merits of a takings challenge to the 1988 Beachfront Management Act identical to the one Lucas brings here even though the Act was amended, deprivation, i. e., for his having been denied construction and the special permit procedure established,while the case was under rights during the period before the 1990 amendment. -See submission. The court observed: • • - • i- 6-30-92 The United States LAW WEEK 60 LW 4845 . •- remand, of course, the questions left unaddressed by the compensation. For example, in Loretto v. Teleprompter South Carolina Supreme Court as a consequence of its Manhattan CATV Corp., 458 U. S. 419 (1982), we deter- categorical disposition.' mined that New York's law requiring landlords to allow Y • III television cable companies to emplace cable facilities in their apartment buildings constituted a taking,- id., at 1. A435-440, even though the facilities occupied at most only — 1' cubic feet of the landlords' property, see id., at 438, Prior to Justice Holmes'exposition in Pennsylvania Coal n. 16. See also United States v. Causby,328 U. S.256,265, ,A Co. v. Mahon, 260 U. S. 393 (1922), it was generally and n. 10(1946)(physical invasions of airspace);cf.Kaiser thought that the Takings Clause reached only a "direct Aetna v. United States, 444 U. S. 164 (1979)(imposition of _ appropriation" of property, Legal Tender Cases, 12 Wall. navigational servitude upon private marina). 457, 551 (1871), or the functional equivalent of a"practical The second situation in which we have found categorical ouster of[the owner's) possession." Transportation Co. v. treatment. appropriate is where regulation denies all Chicago, 99 U. S. 635, 642 (1879). See.also Gibson v. economically beneficial or productive use of land. See United States, 166 U. S. 269, 275-276 (1897). Justice Agins, 447 U. S., at.260; see also Nollan v. California Holmes recognized in Mahon, however, that if the protec- Coastal Comm'n, -483 U. S.. 825,;834 (1987);-Keystone tion against physical appropriations of private property was Bituminous Coal Assn. v.DeBenedictis, 480 U. S. 470, 495 to be meaningfully enforced, the government's power to (1987); Hodel v. Virginia:Surface Mining & Reclamation — redefine the range of interests included in the ownership of Assn., Inc., 452 U. S..264, 295-296 (1981).6 As we have property was necessarily constrained by constitutional said -on numerous occasions,;the Fifth Amendment•is limits. 260 U. S., at 414-415. -If, instead, the uses of violated when land-use regulation "does not substantially •private property were subject to unbridled,uncompensated advance_ legitimate state interests or denies an owner — qualification under the police power,"the natural tendency economically.viable use of his land." Agins, supra,-at 260 of human nature [would be] to extend the qualification (citations omitted).(emphasis added).' - • more and more until at last private property disappear[ed]." i:--- -- .• ,!---.s;,-:. ,.;,•.-1.7 ..i;;; - .-3,, r Id.,at 415. These considerations gave birth in that case to . . the oft-cited maxim that,"while property may be regulated °We will not attempt to respond to all of JUSTICE BLACKIHv)I s mistaken citation of case precedent. Characteristic of its nature is his assertion to a certain extent,if regulation goes too far it will be recog- that the cases we discuss here stand merely for the proposition that nized as a taking."•Ibid. •' . • •__ - proof that a regulation does not deny an owner economic use of his Nevertheless,our decision in Mahon offered little insight property is sufficient to defeat a facial taking challenge"and not for the — into when, and under what circumstances, a given regula- point that.'denial of such use is sufficient to establish a taking claim regardless of any other consideration." Post,at 15,n.11. The cases say, tion would be seen as going "too far" for purposes of the —0 repeatedly and unmistakably,that"[t]he test to be applied in consider- Fifth Amendment. In 70-odd years of succeeding"regulato- ing [a] facial [takings] challenge is fairly straightforward. A statute ry takings"jurisprudence,we have generally eschewed any regulating the uses that can be made of property effects a taking if it "`set formula'"for determining how far is too far,preferring `denies an owner economically viable use of his land."'" Keystone,480 to "engag[e] in . . . essentially ad hoc, factual inquiries," U.S.,at 495(quoting Hodel,452 U.S.,at 295-296(quoting Agins,447 U.S.,at 260))(emphasis added). ' -.• U. S. 104, 124(1978)(quoting Goldblatt V.Hempstead,369 JUSTICE BLACKMUN describes that rule(whi-ch we do not invent Penn Centrl Transportation Co. v. New York City, 438 but U. S. 590, 594 (1962)). See Epstein, Takings: Descent and merely apply today) as "alter[ing] the long-settled rules of review" by foisting on the State `the burden of showing [its] regulation is not a Resurrection, 1987 Sup. Ct. Rev. 1, 4. We have, however, taking.' Post,at 11, 12. This is of course wrong. Lucas had to do more described at least two discrete categories of regulatory than simply file a lawsuit to establish his constitutional entitlement;he — action as compensable without case-specific inquiry into the had to show that the Beachfront Management Act denied him economi- public interest advanced in support of the restraint. The tally beneficial use of his land. Our analysis presumes the unconstitu. ionality of state land-use regulation only in the sense that any rule-with- first encompasses regulations that compel the property texceptions presumes the invalidity of a law that violates it—for example, owner to suffer a physical "invasion" of his property. In the rule generally prohibiting content-based restrictions on speech. See, general (at least with regard to permanent invasions), no a g.,Simon&Schuster,Inc.v.New York Crime Victims Board,502 U.S. matter how minute the intrusion, and no matter how _(slip op.,at 8)(1991)("A statute is presumptively inconsistent weighty the public purpose behind it, we have required with the First Amendment if it imposes a financial burden on speakers because of the content of their speech"). JUSTICE BLACKMUN's real - ' ' - - quarrel is with the substantive standard of liability we apply in this case, a long-established standard we see no need to repudiate. • ' "The enactment of the 1990 Act during the pendency of this appeal,with r Regrettably,the rhetorical force of our"deprivation of all economi- its provisions for special permits and other changes that may affect the tally feasible use"rule is greater than its precision,since the rule does plaintiffs,does not relieve us of the need to address the plaintiffs'claims not make clear the"property interest"against which the loss of value is 1 _ under the provisions of the 1988 Act. Even if the amended Act cured all to be measured. When,for example,a regulation requires a developer to of the plaintiffs' concerns, the amendments would not foreclose the leave 90%of a rural tract in its natural state,it is unclear whether we possibility that a taking had occurred during the years when the 1988 would analyze the situation as one in which the owner has been deprived i Act was in effect.' Esposito v.South Carolina Coastal Council,939 F.2d of all economically beneficial use of the burdened portion of the tract,or 165, 168(CA4 1991). as one in which the owner has suffered a mere diminution in value of the I — 'JUSTICE BLACIMUN states that our"intense interest in Lucas'plight tract as a whole. (For an extreme—and,we think,unsupportable—view_ ...would have been more prudently expressed by vacating the judgment of the relevant calculus, see Penn Central Transportation Co. v.New below and remanding for further consideration in light of the 1990 York City, 42 N. Y. 2d 324, 333-334, 366 N. E. 2d 1271, 1276-1277 amendments" to the Beachfront Management Act. Post, at 10, n. 7. (1977), affd,438 U.S. 104(1978), where the state court examined the That is a strange suggestion, given that the South Carolina Supreme diminution in a particular parcel's value produced by a municipal Court rendered its categorical disposition in this case after the Act had ordinance in light of total value of the taking claimant's other holdings been amended, and afro- it had been invited to consider the effect of in the vicinity.) Unsurprisingly, this uncertainty regarding the those amendments on Lucas's case. We have no reason to believe that composition -of the denominator in our 'deprivation" fraction has the justices of the South Carolina Supreme Court are any more desirous produced inconsistent pronouncements by the Court. Compare Pennsyl- -- of using a narrower ground now than they were then; and neither vania Coal Co. v. Mahon, 260 U.S. 393, 414 (1922) (law restricting 'prudence"nor any other principle of judicial restraint requires that we subsurface extraction of coal held to effect a taking), with Keystone remand to find out whether they have changed their mind. - Bituminous Coal Assn. v.DeBenedictis,480 U.S.470,497-502 (1987) 60 LW 4846 The United States LAW WEEK 6-30-92 We have never set forth the justification for this rule. (including but not limited to scenic easements)"); §460aa- Perhaps it is simply, as Justice Brennan suggested, that 2(a) (authorizing acquisition of "any lands, or lesser total deprivation of beneficial use is, from the landowner's interests therein, including mineral interests and scenic point of view, the equivalent of a physical appropriation. easements" within Sawtooth National Recreation Area); See San Diego Gas & Electric Co. v. San Diego, 450 U. S., §§ 3921-3923 (authorizing acquisition of wetlands); N. C. at 652(Brennan,J.,dissenting). "(Flor what is the land but Gen.Stat.§113A-38(1990)(authorizing acquisition of,inter the profits thereon?)" 1 E. Coke, Institutes ch. 1, §1 (1st alia, "'scenic easements'" within the North Carolina Am. ed. 1812). Surely,-at least, in the extraordinary natural and scenic rivers system);Tenn. Code Ann. §§ 11- circumstance when no productive or economically beneficial 15-101 — 11-15-108 (1987) (authorizing acquisition of use of land is permitted, it is less realistic to indulge our "protective easements" and other rights in real property usual assumption that the legislature is simply"adjusting adjacent to State's historic,architectural,archaeological,or the benefits and burdens of economic life," Penn Central cultural resources). - - Transportation Co., 438 U. S., at 124, in a manner that We think, in short, that there are good reasons for our secures an "average reciprocity of advantage" to everyone frequently expressed belief that when the owner of real concerned. Pennsylvania Coal Co. v.Mahon, 260 U. S., at property has been called upon to sacrifice all economically 415. And the functional basis for permitting the govern- beneficial use in.the name of the common good, that is, to ment, by regulation, to -affect property values without leave his property economically idle,-he has suffered a - compensation—that "Government hardly could go on if to taking.° ='' " :�:- some extent values incident to property could •not be • .i i.SSSI -- diminished without paying for every such change in the • -. = 'T """ • - general law," id., at 413—does not apply to the relatively The trial court found Lucas's two beachfront lots to have rare situations where the government has deprived a been rendered valueless by respondent's enforcement of the ': c. coastal-zone construction ban.9 Under Lucas's theory of landowner of all economically beneficial uses. On the other side of the balance,affirmatively supporting the case, which rested upon our "no economically viable a compensation requirement, is the fact that regulations_ use"statements,that finding entitled him to compensation. that leave the owner of land without economically beneficial Lucas believed it unnecessary to take issue with either the or productive options for its use—typically, as here, by purposes behind the Beachfront Management Act, or the requiring land to be left substantially in its natural means chosen by the South Carolina Legislature to effectu- state—carry -with them a heightened risk that private ate those purposes. The South Carolina Supreme Court, — property is being pressed into some form of public service however,_thought otherwise. _In its view, the Beachfront under the guise of mitigating serious public harm. See, Management Act was no ordinary enactment,but involved e.g.,Annicelli v. South Kingstown, 463 A. 2d 133, 140-141 an exercise of South Carolina's "police powers"to mitigate (R.I. 1983) (prohibition on construction adjacent to beach the harm to the public interest that petitioner's use of his justified on twin grounds of safety and "conservation of land might occasion. 304 S.C.,at 384,404 S.E. 2d,at 899. open space"); Morris County Land Improvement Co. v. Parsippany-Troy Hills Township,40 N.J.539,552-553,193 'JUSTICE STEVENS criticizes the "deprivation of all economically A. 2d 232, 240 (1963) (prohibition on filling marshlands beneficial use"rule as'wholly arbitrary",in that"[the)landowner whose imposed in order to preserve region as water detention property is diminished in value 959E recovers nothing," while the basin and. create wildlife refuge). As Justice Brennan landowner who suffers a complete elimination of value "recovers the explained: "From the government's point of view, the land's full value." Post,at 4. This analysis errs in its assumption that benefits flowing to the public from preservation of open the landowner whose deprivation is one step short of complete is not space through regulation may be equally great as from entitled to compensation. Such an ower might not be able to claim the benefit of aur categorical formulation,bnut,as we have acknowledged tim creating a wildlife refuge through formal condemnation or and again,"[tale economic impact of the regulation on the claimant and increasing electricity production through a dam project that . .. the extent to which the regulation has interfered with distinct — floods private property." San Diego Gas&Elec. Co.,supra, investment-backed expectations"are keenly relevant to takings analysis at 652(Brennan,J.,dissenting). The many statutes on the generally. Penn Central Transportation Co.v.New York City,438 U.S. books, both state and federal, that provide for the use of 104,124(1978). It is true.that in at least some cases the landowner with eminent domain to impose servitudes on private scenic 95% loss will get nothing, while the landowner with total loss will recover in full. But that occasional result is no more strange than the lands preventing developmental uses, or to acquire such gross disparity between the landowner whose premises are taken for a lands altogether, suggest the practical equivalence in this highway (who recovers in full) and the landowner whose property is setting of negative regulation and appropriation. See,e.g., reduced to 5%of its former value by the highway(who recovers nothing). 16 U. S. C. §410ff-1(a) (authorizing acquisition of"lands, Takings law is full of these'all-or-nothing"situations. - waters,or interests[within Channel Islands National Park) JUSTICE STEVENS similarly misinterprets our focus on'developmental" uses of property(the uses proscribed by the Beachfront Management Act) as betraying an "assumption that the only uses of property cognizable under the Constitution are developmental uses." Post, at 5, n.3. We (nearly identical law held not to effect a taking);see also id,at 515-520 make no such assumption. Though our prior takings cases evince an (REHNQUIST, C.J., dissenting); Rose, Mahon Reconstructed: why the abiding concern for the productive use of,and economic investment in, Takings Issue is Still a Muddle,57 S.Cal.L.Rev.561,566-569(1984). land,there are plainly a number of noneconomic interests in land whose The answer to this difficult question may lie in how the owner's impairment will invite exceedingly close scrutiny under the Takings reasonable expectations have been shaped by the State's law of prop- Clause. See,a g.,Loretto v. Teleprompter Manhattan CATV Corp.;458 — erty—i.e.,whether and to what degree the State's law has accorded legal U.S.419,436(1982)(interest in excluding strangers from one's land). recognition and protection to the particular interest in land with respect to which the takings claimant alleges a diminution in(or elimination of) 'This finding was the premise of the Petition for Certiorari,and since value. In any event,we avoid this difficulty in the present case, since it was not challenged in the Brief in Opposition we decline to entertain (a_ the'interest in land'that Lucas has pleaded(a fee simple interest)is an the argument in respondent's brief on the merits,see Brief for Respon- estate with a rich tradition of protection at common law,and since the. dent 45-50, that the finding was erroneous. Instead, we decide the South Carolina Court of Common Pleas found that the Beachfront question presented under the same factual assumptions as did the Management Act left each of Lucas's beachfront lots without economic Supreme Court of South Carolina. See Oklahoma City v. Tuttle, 471 value. U.S.808,816(1985). . . : A 6-30-92 The United States LAR' WEEK 60 LW 4847 By neglecting to dispute the findings enumerated in the proscribed by government regulation without the require- Act" or otherwise to challenge the legislature's purposes, ment of compensation. For a number of reasons, however, t_ petitioner "concede[d] that the beach/dune area of South we think the South Carolina Supreme Court was too quick li- Carolina's shores is an extremely valuable public resource; to conclude that that principle decides the present case. .) that the erection of new construction,inter alia,contributes The "harmful or noxious uses" principle was the Court's to the erosion and destruction of this public resource; and early attempt to describe in theoretical terms why govern- • that discouraging new construction in close proximity to the ment may, consistent with the Takings Clause, affect beach/dune area is necessary to prevent a great public property values by regulation without incurring an obliga- harm." Id.;at 382-383,404 S.E. 2d,at 898. In the court's tion to compensate—a reality we nowadays acknowledge ,. view, these concessions brought petitioner's challenge explicitly with respect to the full scope of the State's police within a long line of this Court's cases sustaining against power. See, e.g., Penn Central Transportation Co., 438 Due Process and Takings Clause challenges the State's use U. S., at 125(where State"reasonably conclude[s]that'the of its "police powers" to enjoin a property owner from health,safety,morals,or general welfare'would be promot- activities akin to public nuisances. See Mugler v.Kansas, ed by prohibiting particular contemplated uses of land," — 123 U. S. 623 (1887) (law -prohibiting manufacture of compensation need not accompany prohibition); see also alcoholic beverages);Hadacheck v.Sebastian,239 U. S. 394 Nollan v. California Coastal Commission, 483 U. S., at (1915) (law barring operation of brick mill in residential 834-835 ("Our cases have not elaborated on the standards area); Miller v. Schoene, 276 U. S. 272 (1928) (order to for determining what constitutes a `legitimate state inter- - destroy diseased cedar trees to prevent infection of nearby est[,]' [but] [t]hey have made clear . : that a broad range orchards); Goldblatt v. Hempstead, 369 U. S. 590 (1962) of governmental purposes and regulations satisfy these (law effectively preventing continued operation of quarry in requirements"). We made this very point in Penn Central residential area). • - - - Transportation Co.,where,in the course of sustaining New It is correct that many of our prior opinions have sug- York City's landmarks preservation program against a gested that "harmful or noxious uses" of property may be takings 'challenge, we rejected the petitioner's sugges- •- - •- ---- -= - - tion that Mugler and the cases following it were premised 1''The legislature's express findings include the following: - on, and thus limited by, some.objective conception of ' "The General Assembly finds that: ' '- • "noxiousness": : ^ . -.:•-• •••• . f= "(1) The beach/dune system along the coast of South Carolina is extremely important to the people of this State and serves the following "[T]he uses in issue in Hadac7teck;Miller, and Gold functions: . . : blatt-were perfectly lawful in-themselves. They_in- . — "(a)protects life and property by serving as a storm barrier which volved no 'blameworthiness, . . . moral %-rongdoinior . dissipates wave energy and contributes to shoreline stability in an conscious act of dangerous risk-taking which induceid II 3economical and effective manner; ' v I society] to shift the cost to a pa[rt]icular individual. "(b) provides the basis for a tourism industry that generates Sax,Takings and the Police Power, 74 Yale L.J. 36,50 approximately two-thirds of South Carolina's annual tourism industry revenue which constitutes a significant portion of the state's economy. (1964). These cases are better understood as resting I The tourists who come to the South Carolina coast to enjoy the ocean not on any supposed'noxious'quality of the prohibited and dry sand beach contribute significantly to state and local tax - uses but rather on the ground that the restrictions revenues; were reasonably related to the'implementation of a — "(c)provides habitat for numerous species of plants and animals, policy—not unlike historic preservation—expected to • several of which are threatened or endangered. Waters adjacent to produce a widespread public benefit and applicable to • the beach/dune system also provide habitat for many other marine species; all similarly situated property." •438 U. S.,at 133-134, _ "(d)provides a natural health environment for the citizens of South n. 30. . Carolina to spend leisure time which serves their physical and mental well-being. "Harmful or noxious use„ analysis was, in other words, "(2)Beach/dune system vegetation is unique and extremely important simply the progenitor of our more contemporary statements Ii • to the vitality and preservation of the system. that "land-use regulation does not effect a taking if it — "(3)Many miles of South Carolina's beaches have been identified as 'substantially advance[s] legitimate state interests' . . . . critically eroding. Nollan,supra, at 834(quoting Agins v. Tiburon,447 U. S., "(4) ... [D]evelopment unwisely has been sited too close to the at 260);see also Penn Central Transportation Co.,supra,at [beach/dune] system. This type of development has jeopardized the 127;Euclid v. Ambler Realty Co., 272 U. S. 365, 387-388 stability of the beach/dune system,accelerated erosion,and endangered (1926)- adjacent property. It is in both the public and private interests to protect - the system from this unwise development. The transition from our early focus on control of"noxious” "(5)The use of armoring in the form of hard erosion control devices uses to our contemporary understanding of the broad realm such as seawalls, bulkheads, and rip-rap to protect erosion-threatened within which government may regulate without compensa- - structures adjacent to the beach has not proven effective. These tion was an easy one, since the distinction between"harm- armoring devices have given a false sense of security to beachfront preventing" and "benefit-conferring" regulation is often in property owners. In reality,these hard structures,in many instances, have increased the vulnerability of beachfront property to damage from the eye of the beholder. It is quite possible,for example,to wind and waves while contributing to the deterioration and loss of the describe in either fashion the ecological, economic, and dry sand beach which is so important to the tourism industry. aesthetic concerns that inspired the South Carolina "(6)Erosion is a natural process which becomes a significant problem legislature in the present case. One could say that impos- tor man only when structures are erected in close proximity to the ing a servitude on Lucas's land is necessary in order to beach/dune system. It is in both the public and private interests to — afford the beach/dune system space to accrete and erode in its natural prevent his use of it from "harming" South Carolina's cycle- This space can be provided only by discouraging new construction ecological resources; or, instead, in order to achieve the in close proximity to the beach/dune system and encouraging those who "benefits" of an ecological preserve.1.1 Compare, e.g., have erected structures too close to the system to retreat from it. — "(8)It is in the state's best interest to protect and to promote increased "In the present case, in fact, some of the "[South Carolina] [ public access to South Carolina's beaches for out-of-state tourists and legislature's 'findings'" to which the South Carolina Supreme Court South Carolina residents alike." S.C.Code §48-39-250(Supp. 1991). purported to defer in characterizing the purpose of the Act as "harm- 60 LW 4.848 The United States LAW WEEK 6-30-92 Claridge v.New Hampshire Wetlands Board, 125 N.H.745, discern on an objective, value-free basis; it becomes self- 752,485 A.2d 287,292(1984)(owner may,without compen- evident that noxious-use logic cannot serve as a touchstone — sation, be barred from filling wetlands because landfilling to distinguish regulatory"takings"—which require compen- would deprive adjacent coastal habitats and marine sation—from regulatory deprivations that do not require fisheries of ecological support),with,e.g.,Bartlett v.Zoning compensation. A fortiori the.legislature's recitation of a I) Comm'n of Old Lyme, 161 Conn. 24, 30,282 A. 2d 907, 910 noxious-use justification cannot be the basis for departing (1971)(owner barred from filling tidal marshland must be from our categorical rule that.total regulatory takings must compensated, despite municipality's "laudable" goal of be compensated. If it were, departure would virtually "preserv[ing) marshlands from encroachment or destruc- always be allowed. The South Carolina Supreme Court's tion"). Whether one or the other of the competing charac- approach would essentially nullify Mahon's affirmation of — terizations will come to one's lips in a particular case limits to the noncompensable,exercise of the police power. depends primarily upon one's evaluation of the worth of Our cases provide no support for this: None of them that competing uses of real estate. See Restatement(Second)of employed the logic of"harmful use"prevention to sustain a — Torts §822, Comment g, p. 112 (1979) ("[p)ractically all regulation involved an allegation that the regulation wholly human activities unless carried on in a wilderness interfere eliminated the value,of the claimant's land. See Keystone to some extent with others or involve some risk of interfer- Bituminous Coal Assn.,480 U. S.,at 513-514(REHNQUIST, ence").,A given restraint will be seen as mitigating"harm" C.J., dissenting).13: . _- • .,at . to the adjacent parcels or securing a "benefit" for them, -Where the State seeks to sustain regulation that deprives depending upon the observer's evaluation of the relative land.of all economically•beneficial use,-we think it may importance of the use that the restraint favors. See Sax, resist compensation onlyif the logically antecedent inquiry Takings and the Police Power, 74 Yale L. J. 36, 49 (1964) into -the nature of-the •owner's estate shows--that the _ ("[T]he problem [in this area) is not one of noxiousness or proscribed use interests were not part of his title to begin harm-creating activity at all; rather it .is a problem of with.''. This accords,,we think, with our "takings"juris- inconsistency between perfectly innocent and independently prudence, which has traditionally been guided by the desirable uses").. Whether Lucas's construction of single- understandings of our citizens regarding the content of,and family residences on his parcels should be described as the State's power over, the "bundle of rights" that they bringing "harm" to South Carolina's adjacent ecological acquire when they obtain title to property. It seems to us resources thus depends principally upon whether the that the property owner necessarily expects the uses of his describer believes that the State's use interest in nurturing property to be restricted, from time-to time, by various — those resources is so important that any competing adjacent measures newly enacted by the State in legitimate exercise use must yield.12 of'its police powers;"[a]s long recognized, some values are When it is understood that "prevention of harmful-use" enjoyed under an implied limitation and must yield to the was merely our early formulation of the police power police power." Pennsylvania Coal Co.v-Mahon,260 U. S., justification necessary to sustain (without compensation) at 413. And in the case of personal property, by reason of0 any regulatory diminution in value;and that the distinction the State's traditionally high degree of control over commer- between regulation that "prevents harmful use" and that cial dealings, he ought to be-aware of the possibility that which "confers.benefits" is difficult, if not impossible, to new regulation might even render his property economically — worthless (at least if the property's only economically • productive use is sale or manufacture for sale),see Andrus preventing," 304 S. C. 376, 385, 404 S. E. 2d 895, 900 (1991), seem v.Allard,444 U. S. 51,66-67(1979)(prohibition on sale of to us phrased in "benefit-conferring"language instead. For example, they describe the importance of a construction ban in enhancing "South Carolina's annual tourism industry revenue,"S.C.Code§48-39- "E.g.,Mugler v.Kansas, 123 U.S.623(1887)(prohibition upon use 250(1)(b)(Supp. 1991), in "provid[ing] habitat for numerous species of of a building as a brewery;other uses permitted);Plymouth Coal Co. v. plants and animals, several of which are threatened or endangered," Pennsylvania,232 U.S.531(1914)(requirement that"pillar"of coal be - §48-39-250(1)c),and in"provid[ing)a natural healthy environment for left in ground to safeguard mine workers;mineral rights could otherwise the citizens of South Carolina to spend leisure time which serves their be exploited);Reinman v.Little Rock,237 U.S. 171(1915)(declaration physical and mental well-being." §48-39-250(1)(d). -.It would be that livery stable constituted a public nuisance; other uses of the pointless to make the outcome of this case hang upon this terminology, property permitted); Hadacheck v. Sebastian, 239 Ti.S. 394 (1915) since the same interests could readily be described in"harm-preventing" (prohibition of brick manufacturing in residential area; other uses - fashion. • permitted);Goldblatt v.Hempstead,369 U.S.590(1962)(prohibition on JUSTICE BLACKVUN,however,apparently insists that we must make excavation;other uses permitted). - ' the outcome hinge(exclusively) upon the South Carolina Legislature's "Drawing on our First Amendment jurisprudence,see,e.g.,Employ- other,"harm-preventing'characterizations, focusing on the declaration mens Division,Department of Human Resources of Oregon v.Smith,494 - that"prohibitions on building in front of the setback line are necessary U.S. 872, 878-879 (1990), JUSTICE STEVENS would 9oo[k) to the to protect people and property from storms, high tides, and beach generality of a regulation of property'to determine whether compensa- erosion." Post,at 6. He says"[n)othing in the record undermines[this] tion is owing. Post,at 12. The Beachfront Management Act is general, assessment,"ibid.,apparently seeing no significance in the fact that the in his view,because it"regulates the use of the coastline of the entire - statute permits owners of existing structures to remain (and even to state." Post,at 14. There may be some validity to the principle JUSTICE rebuild if their structures are not"destroyed beyond repair,"S.C.Code STEVENS proposes, but it does not properly apply to the present case. Ann. §48-39-290(B)), and in the fact that the 1990 amendment The equivalent of a law of general application that inhibits the practice authorizes the Council to issue permits for new construction in violation of religion without being aimed at religion,see Oregon v.Smith,supra, of the uniform prohibition, see S. C. Code §48-39-290(DX1) (Supp. is a law that destroys the value of land without being aimed at land. - 1991)_ Perhaps such a law-the generally applicable criminal prohibition on the It In JUSTICE BLACK.MUN's view,even with respect to regulations that manufacturing of alcoholic beverages challenged in Mugler comes to deprive an owner of all developmental or economically beneficial land mind-cannot constitute a compensable taking. See 123 U.S., at y uses,the test for required compensation is whether the legislature has 655-656. But a regulation specifically directed to land use no more recited a harm-preventing justification for its action. See post, at 5, acquires immunity by plundering landowners generally than does a law 13-17. Since such a justification can be formulated in practically every specifically directed at religious practice acquire immunity by prohibiting case,this amounts to a test of whether the legislature has a stupid staff. all religions. JUSTICE STEVENS' approach renders the Takings Clause We think the Takings Clause requires courts to do more than insist upon little more than a particularized restatement of the Equal Protection artful harm-preventing characterizations. Clause. 6-30-92 The United States LAW WEEK 60 LW 4849 r� . `_, eagle feathers). In the case of land,however, we think the discovery that the plant sits astride an earthquake fault. .• notion pressed by the Council that title is somehow held Such regulatory action may well have the effect of eliminat- subject to the "implied limitation" that the State may ing the land's only economically productive use, but it does ..... 0 subsequently eliminate all economically valuable use is not proscribe a productive use that was previously permissi- 1 Air inconsistent with the historical compact recorded in the ble under relevant property and nuisance principles. The Takings Clause that has become part of our constitutional use of these properties for what are now expressly prohibit- Ci :: culture.15 ed purposes was always unlawful, and (subject to other r,` Where "permanent physical occupation" of land is constitutional limitations) it was open to the State at any �` concerned, we have refused to allow the government to point to make the implication of those background princi- pl decree it anew (without compensation), no matter how pies of nuisance and property law explicit. See Michelman, weighty the asserted"public interests"involved,Loretto v. Property, Utility, and Fairness, Comments on the Ethical Teleprompter Manhattan CATV Corp., 458 U. S., .at Foundations of"Just Compensation"Law,80 Harv. L.Rev. 426—though we assuredly would permit the government to 1165, 1239-1241 (1967). In light of our traditional resort assert a permanent easement that was a pre-existing to "existing rules or understandings that stem from an limitation upon the landowner's title. Compare Scranton v. independent source such as state law"to define the range iie Wheeler, 179 U. S. 141, 163 (1900) (interests of"riparian of interests that qualify for protection as "property"under V. owner in the submerged lands . . . bordering on a public the Fifth(and Fourteenth)amendments,Board of.Regents navigable water"held subject to Government's navigational of State Colleges v. Roth, 408 U. S. 564, 577 (1972); see, V servitude),with Kaiser Aetna v. United States,444 U. S.,at e.g., Ruckelshaus v. Monsanto Co., 467 U. S.., 986, 178-180 (imposition of navigational servitude on marina 1011-1012 (1984); Hughes v. Washington, 389 U. S. 290, created and rendered navigable at private expense held to 295 (1967) (Stewart, J., concurring), this recognition that constitute a taking). We believe similar treatment must be the Takings Clause does not require compensation when an accorded confiscatory regulations, i. e., regulations that owner is barred from putting land to a use that is pro- prohibit all economically beneficial use of land:Any limita- scribed by those"existing rules or understandings"is surely tion so severe,.cannot be newly legislated or •decreed unexceptional. When, however, a regulation that declares (without compensation), but must inhere in the title itself, "off-limits"all economically productive or beneficial uses of in the restrictions that background principles of the State's land goes beyond what the relevant background principles law of property and nuisance already place._upon.land would dictate, compensation must be paid to sustain it." . wnership. A law or decree.with such an effect must,:_in The"total taking"inquiry we require today will ordinarily other .words,•do no more than duplicate the_result that entail (as the application of state nuisance law ordinarily — could have been achieved in the courts—by.adjacent land- entails)analysis of,among other things,the degree of harm owners .(or other -uniquely affected persons) under •the to public lands and resources,or adjacent private property, — State's law of private nuisance, or by the State under its posed by the claimant's proposed activities, see, .e.g., complementary power to abate nuisances that affect the Restatement(Second)of Torts §§826,827,the social value . public generally, or.otherwise —,. -, of.the claimant's activities and their.suitability to the On this analysis, the owner of a lake bed, for example, locality in question,see,e.g.,id.,§§828(a)and(b), 831,and would not be entitled to compensation when he is denied the relative ease with which the alleged-harm can be f the requisite permit to engage in a landfilling operation avoided through.measures taken by the claimant and the that would have the effect of flooding others'land. Nor the government(or adjacent private landowners)alike,see,e-g., corporate owner of a nuclear generating plant, when it is id., §§827(e), 828(c), 830. -The fact that a particular.use directed to remove all improvements from its land upon has.long-been engaged.in by similarly situated.-owners - - - • ordinarily imports a lack of any common-law prohibition (though changed circumstances or new knowledge may "After accusing us of"launchling]a missile to kill a mouse,"post,at make what was previously permissible no longer so, see 1, JUSTICE BLACKMUN expends a good deal of throw-weight of his own Restatement(Second)of Torts,supra,§827,comment g. So — upon a noncombatant, arguing that our description of the"understand- also does the fact that other landowners,similarly situated, ing"of land ownership that informs the Takings Clause is not supported are permitted to continue the use denied to the claimant. by early American experience. That is largely true, but entirely It seems unlikely that common-law principles would have irrelevant. The practices of the States prior to incorporation of the • Takings and Just Compensation Clauses,see Chicago,B. &Q.R. Co.v. prevented. the erection of any habitable or productive — Chicago, 166 U.S.226(1897)—which, as JUSTICE BLACKMUN acknowl• improvements on petitioner's land; they rarely support edges, occasionally included outright physical appropriation of land prohibition of the"essential use"of land,Curtin v.Benson, without compensation, see post, at 22—were out of accord with any 222 U. S. 78, 86 (1911). The question, however, is one of plausible interpretation of those provisions. JUSTICE BLACKMUN is state law to be dealt with on remand. We emphasize that correct that early constitutional theorists did not believe the Takings to win its case South Carolina must do more than proffer Clause embraced regulations of property at all,see post,at 23,and n.23, the legislature's declaration that the uses Lucas desires are but even he does not suggest(explicitly,at least)that we renounce the inconsistent with the public interest, or the conclusory Court's contrary conclusion in Mahon. Since the text of the Clause can be read to encompass regulatory as well as physical deprivations (in assertion that they violate a common-law maxim such as sic — contrast to the text originally proposed by Madison,see Speech Proposing utere tuo ut alienurn non laedas. As we have said,a"State, Bill of Rights (June 8, 1789), in 12 J. Madison, The Papers of James by ipse dixit,may not transform private property into public Madison 201(C.Hobson,R.Rutland,W.Rachal, &J.Sisson ed. 1979) property without compensation . . . . Webb's Fabulous ("No person shall be...obliged to relinquish his property,where it may Pharmacies, Inc. v. Beckwith, 449 U nS. 155, 164 (1980). be necessary for public use,without a just compensation"),we decline to do so as well. "The principal"otherwise"that we have in mind is litigation absolving '7 Of course,the State may elect to rescind its regulation and thereby the State(or private parties)of liability for the destruction of"real and avoid having to pay compensation for a permanent deprivation. See First personal property,in cases of actual necessity,to prevent the spreading English Evangelical Lutheran Church,482 U.S.,at 321. But"where the of a fire"or to forestall other grave threats to the lives and property of [regulation has] already worked a taking of all use of property, no others. Bowditch v.Boston,101 U.S.16,18-19(1880);see United States subsequent action by the government can relieve it of the duty to provide v.Pacific Railroad, 120 U.S.227,238-239(1887). compensation for the period during which the taking was effective.'Ibid. 60 LW 4830 The United States LAW WEEK 6-30-92 Instead,as it would be required to do if it sought to restrain over, we do not decide the ultimate question of whether a _.. Lucas in a common-law action for public nuisance, South temporary taking has occurred in this case. The facts Carolina must identify background principles of nuisance necessary to the determination have not been developed in and property law that prohibit the uses he now intends in the record. Among the matters to be considered on remand the circumstances in which the property is presently found. must be whether petitioner had the intent and capacity to Only on this showing can the State fairly claim that, in develop the property and failed to do so in the interim proscribing all such beneficial uses,the Beachfront Manage- period because the State prevented him. Any failure by ment Act is taking nothing. petitioner to comply with relevant administrative require- * * * - ments will be part of that analysis. The judgment is reversed and the cause remanded for The South Carolina Court of Common Pleas found that proceedings not inconsistent with this opinion. petitioner's real property has been rendered valueless by So ordered. the State's regulation. App. to Pet. for Cert. 37. The finding appears to presume that the property has no signifi-• - - cant market value or resale potential. This is a curious finding, and I share the reservations of some of my col- • JUS'T'ICE KENNEDY, concurring in the judgment. leagues about a finding that a beach front lot loses all value The case comes to the Court in an unusual posture,as all because of a development restriction. Post, at 9-10 my colleagues observe. Ante, at 5;post, at 6(BLACKMUN,J., (BLACKMUN, J., dissenting);post, at 5, n. 3 (STEVENS, J., dissenting);post, at 2(STEVENs,J.,dissenting);post, at 1-2 dissenting);post, at 1(Statement of SOTTER,J.). While the (Statement of SOLTER,J.). After the suit was initiated but Supreme Court of South Carolina on remand need not before it reached us, South Carolina amended its consider the case subject to this constraint,we must accept Beachfront Management Act to authorize the issuance of the finding as entered below. See Oklahoma City v. Tuttle, special permits at variance with the Act's general limita- 471 U. S.808,816(1985). Accepting the finding as entered, tions. See S.-C. Code §48-39-290(DX1) (Supp. 1991). it follows that petitioner is entitled to invoke the line of — Petitioner has not applied for a special permit but may still cases discussing regulations that deprive real property of all do so. The availability of this alternative, if it can be economic value.:See Agin v. Tiburon, 447 U. S. 255, 260 invoked, may dispose of petitioner's claim of a permanent (1980). taking. As I read the Court's opinion,it does not decide the The finding of no value must be considered under the — permanent taking claim, but neither does it foreclose the Takings Clause by reference to the owner's reasonable; Supreme Court of South Carolina from considering the investment-backed expectations. -Kaiser Aetna v. United claim or requiring petitioner to pursue an administrative States,444 U. S. 164,175(1979);Penn Central Transporta- . alternative not previously available. tion Co. v. New York City, 438 U. S.-104, 124 (1978); see i The potential for future relief does not control our also W. B. Worthen Co. v.Kavanaugh, 295 U. S. 56(1935). I disposition, because whatever may occur in the future The Takings Clause,while conferring substantial protection cannot undo what has occurred in the past. The Beachfront on property owners, does not eliminate the police power of { Management Act was enacted in 1988. S. C. Code the State to enact limitations on the use of their property. §48-39-250 et seq. (Supp. 1990). It may have deprived Mugler v. Kansas, 123 U. S. 623, 669 (1887). The rights petitioner of the use of his land in an interim period. conferred by the Takings Clause and the police power of the §48-39-290(A). If this deprivation amounts to a taking,its State may coexist without conflict. Property is bought and limited duration will not bar constitutional relief. It is well sold,investments are made,subject to the State's power to established that temporary takings are as protected by the regulate. Where a taking is alleged from regulations which Constitution as are permanent ones. First English Evangel- deprive the property of all value, the test must be whether. ical Lutheran Church of Glendale v. County of Los Angeles, the deprivation is contrary to reasonable, investment- 482 U. S. 304, 318 (1987). backed expectations. — The issues presented in the case are ready for our There is an inherent tendency towards circularity in this decision. The Supreme Court of South Carolina decided the synthesis, of course; for if the owner's reasonable expecte- case on constitutional grounds, and its rulings are now tions are shaped by what courts allow as a proper exercise before us. There exists no jurisdictional bar to our disposi- of governmental authority, property tends to become what tion, and prudential considerations ought not to militate courts say it is. Some circularity must be tolerated in these against it. The State cannot complain of the manner in matters, however, as it is in other spheres. E.g.,Katz v. which the issues arose. Any uncertainty in this regard is United States, 389 U. S. 347 (1967) (Fourth Amendment attributable to the State, as a consequence of its amend- protections defined by reasonable expectations of privacy). ment to the Beachfront Management Act. If the Takings The definition,moreover,is not circular in its entirety. The Clause is to protect against temporary deprivations as well expectations protected by the Constitution are based on as permanent ones,its enforcement must not be frustrated objective rules and customs that can be understood as _ by a shifting background of state law. reasonable by all parties involved. Although we establish a framework for remand, more- , In my view,reasonable expectations must be understood in light of the whole of our legal tradition. The common law of nuisance is too narrow a confine for the exercise of 1° JUSTICE BLACKMUN decries our reliance on background nuisance principles at least in part because he believes those principles to be as regulatory power in a complex and interdependent society. manipulable as we find the `harm prevention"P'benefit conferral" Goldblatt v. Hempstead, 369 U. S. 590, 593 (1962). The dichotomy,see post,at 20-21. There is no doubt some leeway in a court's State should not be prevented from enacting new regulatory interpretation of what existing state law permits—but not remotely as initiatives in response to changing conditions, and courts much, we think, as in a legislative crafting of the reasons for its must consider all reasonable expectations whatever their confiscatory regulation. We stress that an affirmative decree eliminating source. The Takings Clause does not require a static body all economically beneficial uses may be defended only if an objectively reasonable application of relevant precedents would exclude those of state property law; it protects private expectations to beneficial uses in the circumstances in which the land is presently found. ensure private investment. I agree with the Court that 1 4" 6-30-92 The United States LAW WEEK 60 LW 4851 nuisance prevention accords with the most common the Act, Congress directed States to enhance their coastal expectations of property owners who face regulation, but I programs by"[p]reventing or significantly reducing threats do not believe this can be the sole source of state authority to life and the destruction of property by eliminating . to impose severe restrictions. Coastal property may present development and redevelopment in high-hazard areas."' 16 such unique concerns for a fragile land system that the U. S. C. §1456b(a)(2)(1988 ed., Supp. II). State can go further in regulating its development and use South Carolina began implementing the congressional than the common law of nuisance might otherwise permit. directive by enacting the South Carolina Coastal Zone The Supreme Court of South Carolina erred,in my view, Management Act of 1977. Under the 1977 Act, any con- by reciting the general purposes for which the state regula- struction activity in what was designated the"critical area" tions were enacted without a determination that they were required a permit from the Council,and the construction of i — in accord with the owner's reasonable expectations and any habitable structure was prohibited. The 1977 critical therefore sufficient to support a severe restriction on area was relatively narrow. • specific parcels of property. .See 304 S. C. 376, 383, 404 This effort did not stop the loss of shoreline. In October S. E. 2d 895, 899 (1991). The promotion of tourism, for 1986, the Council appointed a"Blue Ribbon Committee on instance,ought not to suffice to deprive specific property of Beachfront Management"to investigate beach erosion and all value without a corresponding duty to compensate. propose possible solutions. In March 1987, the Committee Furthermore, the means as well as the ends of regulation found that South Carolina's •beaches were "critically must accord with the owner's reasonable expectations. eroding,"and proposed land-use restrictions. Report of the = Here, the State did not act until after the property had South Carolina Blue Ribbon Committee on Beachfront been zoned for individual lot development and most other Management i, 6-10 (March 1987). In response, South parcels had been improved, throwing the whole burden of Carolina enacted the Beachfront Management Act on July the regulation on the remaining lots. This too must be 1,1988. S.C. Code §48-39-250 et seq. (Supp. 1990). The — measured in the balance. See Pennsylvania Coal Co..v. 1988 Act did not change the uses permitted within the Mahon, 260 U. S. 393, 416 (1922). •• - ''.....-1 designated critical areas. Rather,it enlarged those areas to With these observations, I concur in the judgment of the encompass the distance from the mean high watermark to Court. .. a setback line established on the basis of"the best scientific and historical..data" available.' S.C. Code §48-39-280 -- . ... - -•• (Supp. 1991). _ ... JUSTICE BLACKMUN, dissenting. - Today the Court launches a missile to kill a mouse. ._ B The State of South Carolina prohibited petitioner Lucas Petitioner Lucas is a contractor,manager,and part owner from building a permanent structure on his property from of the Wild Dune development on the Isle of Palms. He has ' ' 1988 to 1990. Relying on an unreviewed(and implausible) lived there since 1978. In December 1986, he purchased state trial court finding that this restriction left Lucas' two of the last four pieces of vacant property in the develop- ~ property valueless, this Court granted review to determine ment.3 The area is notoriously unstable. In roughly half whether compensation must be paid in cases where the of the last 40 years,all or part of petitioner's property was State prohibits all economic use of real estate. According to part of the beach or flooded twice daily by the ebb and flow the Court, such an occasion never has arisen in any of our of the tide. Tr. 84. Between 1957 and 1963, petitioner's prior cases, and the Court imagines that •it will arise property was under water. Id.,at 79,81-82. Between 1963 "relatively rarely"or only in"extraordinary circumstances." and 1973 the shoreline was 100 to 150 feet onto petitioner's Almost certainly it did not happen in this case. • property. Ibid. In 1973 the first line of stable vegetation Nonetheless,the Court presses on to decide the issue,and was about halfway through the property. Id., at 80. as it does, it ignores its jurisdictional limits, remakes its Between 1981 and 1983, the Isle of Palms issued 12 traditional rules of review, and creates simultaneously a emergency orders for sandbagging to protect property in the new categorical rule and an exception (neither of which is Wild Dune development. Id.,at 99. Determining that local rooted in our prior case law, common law, or common habitable structures were in imminent danger of collapse, sense). I protest not only the Court's decision, but each step taken to reach it. More fundamentally,I question the Court's wisdom in issuing sweeping new rules to .decide 'The country has come to recognize that uncontrolled beachfront such a narrow case. Surely, as JUSTICE KENNEDY demon- development can cause serious damage to life and property. See Brief for strates, the Court could have reached the result it wanted Sierra Club, et al.as Antici Curiae 2-5. Hurricane Hugo's September 1989 attack upon South Carolina's coastline, for example, caused 29 without inflicting this damage upon our Taking Clause deaths and approximately$6 billion in property damage,much alit the jurisprudence. result of uncontrolled beachfront development. See Zalkin, Shifting — My fear is that the Court's new policies will spread Sands and Shifting Doctrines:The Supreme Court's Changing Takings beyond the narrow confines of the present case. For that Doctrine and South Carolina's Coastal Zone Statute,79 Cal.L.Rev.205, 212-213 (1991). The beachfront buildings are not only themselves reason, I, like the Court, will give far greater attention to destroyed in such a storm, but they are often driven, like battering this case than its narrow scope suggests—not because I can rams,into adjacent inland homes." Ibid Moreover, the development — intercept the Court's missile, or save the targeted mouse, often destroys the natural sand dune barriers that provide storm breaks. but because I hope perhaps to limit the collateral damage. Ibid I - 'The setback line was determined by calculating the distance landward from the crest of an ideal oceanfront sand dune which is forty times the A annual erosion rate. S.C.Code§48-39-280(Supp. 1991). 'The properties were sold frequently at rapidly escalating prices before In 1972 Congress passed the Coastal Zone Management Lucas purchased them. Lot 22 was first sold in 1979 for$96,660,sold in Act. 16 U. S. C. §1451 et seq. The Act was designed to 1984 for$187,500,then in 1985 for$260,000, and, finally,to Lucas in provide States with money and incentives to carry out 1986ada for$475,000. He estimatedd ditsoes worthnot inindi1991cate atwh$650opurc,00h0.aseLotd 24 hsimilar The recorthe Congress' goal of protecting the public from shoreline properties priorpast.to Lucas,or why none of the purchasers held on to the erosion and coastal hazards. In the 1980 Amendments to lots and built on them. Tr.44-46. - 60 LW 4852 The United States LAW WEEK 6-30-92 the Council issued permits for two rock revetments to legislative determination cannot be disregarded in the protect condominium developments •near petitioner's absence of such evidence,see,e.g.,Euclid,272 U. S.,at 388; property from erosion;one of the revetments extends more O'Gorman& Young v.Hartford Fire Ins. Co,282 U. S.251, than halfway onto one of his lots. Id.,at 102. . 257-258 (1931) (Brandeis, J.), and because its determina- C . ' • • : " tion of harm to life and property from building is sufficient f") to prohibit that use under this Court's cases, the South The South Carolina Supreme Court found that the Beach Carolina Supreme Court correctly found no taking. Management Act did not take petitioner's property without . ,•1 ,- _ II compensation. The decision rested on two premises that until today were unassailable-that the State has the My disagreement with the Court begins with its decision - power to prevent any use of property it finds to be harmful to review this case. This Court has held consistently that to its citizens, and that a state statute is .entitled to a a land-use challenge is not ripe for review until there is a presumption of constitutionality. • -.,• •- final'decision about what uses of the property will be The Beachfront Management Act includes a finding by permitted.: The ripeness requirement is not simply a the South Carolina General Assembly that the beach/dune -gesture of good-will to land-use planners. In the absence of system serves the purpose of"protect[ing]life and property "a final and authoritative determination of the type and by serving as a storm barrier which dissipates wave energy intensity of development legally permitted on the subject and contributes to shoreline stability in an economical and property," MacDonald, Sommer & Frates v. Yolo County, effective manner." §48-39-250(1)(a). The General Assem- 477 U. S. 340, 348 (1986), and the utilization,of state bly also found that "development unwisely has been sited procedures for just compensation, there is no final judg- too close to the [beach/dune] system. This type of develop- ment, and in the absence of a final judgment there is no _ ment has jeopardized the stability of the beach/dune jurisdiction. See San_Diego Gas & Electric Co. v. San system, accelerated erosion, and endangered adjacent Diego, 450 U. S. 621, 633 (1981); Agins v. Tiburon, 4-47 property." §48-39-250(4);see also§48-39-250(6)(discuss- U. S. 255, 260(1980). ....;.=.2:-1:31.1-‘ -•• ing the need to "afford the beach/dune system space to --..--.This rule is"compelled.by the very nature of the inquiry accrete and erode"). ; ... . .. required by the Just Compensation Clause," because the , • If the state legislature is correct that the prohibition on factors applied in deciding a takings claim "simply cannot • building in front of the setback line prevents serious harm, be evaluated until the administrative agency has arrived at • then, under this Court's prior cases, the Act is constitu- a final, definitive position regarding how it will apply the - tional. "Long ago it was recognized that all property in this regulations at issue to the particular land in question." country is held under the implied obligation that the Williamson County Regional Planning Comm'n v.Hamilton owner's use of it shall not be injurious to the community, Bank of Johnson City, 473 U. S. 172, 190, 191 (1985). See S.;at 348 ("A 477 U & S Sommer Frates, U. and the Takings Clause did not transform that principle to also MacDonald, , 0- one that requires compensation whenever the State asserts court cannot determine whether a regulation has gone too its power to enforce it." Keystone Bituminous Coal Assn. v. far' unless it knows how far the regulation goes")(citation DeBenedictis, 480 U. S. 470, 491-492 (1987) (internal omitted). - -- - quotations omitted); see also id.,'at 488-489; and n. 18. The Court admits that the 1990 amendments to,the The Court consistently has upheld regulations imposed to Beachfront Management Act allowing ,special permits arrest a significant threat to the common welfare,whatever preclude Lucas from asserting that his property has been their economic effect on the owner. See e.g., Goldblatt v. permanently taken. See ante, at 5-6. The Court agrees Hempstead, 369 U. S. 590, 592-593 (1962); Euclid v. that such a claim would not be ripe because there has been Ambler Realty Co.,272 U. S. 365(1926);Gorieb v.Fox,274 no final decision by.respondent on what uses will be U. S. 603, 608 (1927); Mugler v. Kansas, 123 U. S. 623 permitted. The Court, however, will not be denied: it (1887) determines that petitioner's "temporary takings" claim for the period from July 1, 1988,to June 25, 1990,is ripe. But Petitioner never challenged the legislature's findings that a building ban was necessary to protect property and life. this claim also is not justiciable. - Nor did he contend that the threatened harm was not From the very beginning of this litigation,respondent has sufficiently serious to make building a house in a particular argued that the courts: location a"harmful"use,that the legislature had not made "lac[k]jurisdiction in this matter because the Plaintiff sufficient findings,or that the legislature was motivated by •_'-has sought no authorization from Council for use of his anything other than a desire to minimize damage to coastal -property, has not challenged the location of the base- areas. Indeed, petitioner objected at trial that evidence as - line or setback line as alleged in the Complaint and - to the purposes of the setback requirement was irrelevant. because no final agency decision has been rendered Tr. 68. The South Carolina Supreme Court accordingly concerning use of his property or location of said understood petitioner not to contest the State's position that ' baseline or setback line." "discouraging new construction in close proximity to the Tr. 10 (answer, as amended). Although the Council's plea beach/dune area is necessary to prevent a great public has been ignored by every court, it is undoubtedly correct. harm,"304 S.C. 376,_,404 S.E. 2d 895, 898 (1991), and Under the Beachfront Management Act, petitioner was "to prevent serious injury to the community." Id., at _, entitled to challenge the setback line or the baseline or 404 S.E. 2d, at 901. The court considered itself"bound by these uncontested legislative findings. . .[in the absence of] 'The Court's reliance,ante,at 7,on Esposito v.South Carolina Coastal any attack whatsoever on the statutory scheme." Id., at Council,939 F. 2d 165, 168(CA4 1991), cert. pending, No.91-941,in 0. _, 404 S.E.2d, at 898. support of its decision to consider Lucas'temporary taking claim ripe is misplaced. In Esposito the plaintiffs brought a facial challenge to the Nothing in the record undermines the General Assembly's mere enactment of the Act. Here, of course,Lucas has brought an as- assessment that prohibitions on building in front of the applied challenge. See Brief for Petitioner 16. Facial challenges are ripe setback line are necessary to protect people and property when the Act is passed;applied challenges require a final decision on the from storms, high tides, and beach erosion. Because that Act's application to the property in question. .. , 6-30-92 The United States LAW WEEK 60 LW 4853 erosion rate applied to his property in formal adminis- the land, which would have value for neighbors and for trative, followed by judicial, proceedings. S.C. Code those prepared to enjoy proximity to the ocean without a §48-39-280(E) (Supp 1991). Because Lucas failed to house. pursue this administrative remedy, the Council never Yet the trial court, apparently believing that"less value" finally decided whether Lucas' particular piece of property and `valueless" could be used interchangeably, found the was correctly categorized as a critical area in which property `valueless." The court accepted no evidence from building would not be permitted. This is all the more the State on the property's value without a home, and — crucial because Lucas argued strenuously in the trial court petitioner's appraiser testified that he never had considered that his land was perfectly safe to build on, and that his what the value would be absent a residence. Tr. 54-55. company had studies to prove it. Tr. 20, 25, 36. If he was The appraiser's value was based on the fact that the correct;the Council's final decision would have been to alter "highest and best use of these lots . . . [is] luxury single the setback line,eliminating the construction ban on Lucas' family detached dwellings." Id., at 48. The trial court property. . - appeared-to believe that the property could be considered That petitioner's property fell within the critical area as "valueless"if it was not available for its most profitable use. initially interpreted by the Council does not excuse peti- Absent that erroneous assumption,see Goldblatt,369 U. S., — tioner's failure to challenge the Act's application to his at 592, I find no evidence in the record supporting the trial property in the administrative process. The claim is not court's conclusion that the damage to the lots by virtue of ripe until petitioner seeks a variance from that status. the restrictions was "total." Record 128 (findings of fact). "[W]e have made it quite clear that the mere assertion of I agree with the Court, ante, at 14, n. 9, that it has the regulatory jurisdiction by a governmental body does not power to decide a case that turns on an erroneous finding, constitute a regulatory taking." United States v.Riverside but I question the wisdom of deciding an issue based on a Bayview Homes, Inc., 474 U. S. 121, 126 (1985). See also factual premise that does not exist in this case, and in the Williamson County, 473 U. S., at 188 (claim not ripe judgment of the Court will exist in the future only in — because respondent did not seek variances that would have "extraordinary circumstance[s]." Ante, at 12. . _ allowed it to develop the property, notwithstanding the Clearly, the Court was eager to decide this case.' But Commission's finding that the plan did not comply with the eagerness,in the absence of proper jurisdiction,must—and zoning ordinance and subdivision regulations).& in this case should have been—met with restraint. . - Even if I agreed with the Court that there were no III jurisdictional barriers to deciding this case,I still would not try to decide it. The Court creates its new taking jurispru- The Court's willingness to dispense with precedent in its dence based on the trial court's finding that the property haste to reach a result is not limited to its initial jurisdic- had lost all economic value.' This finding is almost tional decision. The Court also alters the long-settled rules l ' certainly erroneous. Petitioner still can enjoy other of review. ._ attributes of ownership,such as the right to exclude others, The South Carolina Supreme Court's decision to defer to - "one of the most essential sticks in the bundle of rights that legislative judgments in the absence of a challenge from are commonly characterized as property."-Kaiser Aetna v. petitioner comports with one of this Court's oldest maxims: United States, 444.U. S. 164, 176 (1979).' Petitioner can "the existence of facts supporting the legislative judgment picnic, swim,;camp in a tent, or live on the property in a is to be presumed." United States v.Carolene Products Co., -- movable trailer. State courts frequently have recognized 304 U. S. 144, 152 (1938). Indeed, we have said the that land has economic value where the only residual legislature's judgment is"well-nigh conclusive." Berman v. economic uses are recreation or camping, See, e.g., Turn- Parker, 348 U. S. 26, 32 (1954). See also Sweet v. Rechel, pike Realty Co. v.Dedham, 362 Mass. 221, 284 N.E.2d 891 159 U. S. 380,392(1895);Euclid,272 U. S., at 388 ("If the + validity of the legislative classification for zoning purposes (1972); Turner v. County of Del Norte, 24 Cal App. 3d 311, 101 Cal. Rptr. 93 (1972), cert. denied, 409 U. S. 1108 be fairly debatable, the legislative judgment must be (1973);Hall v.Board of Environmental Protection,528 A.2d allowed to control"). 453(Me. 1987). Petitioner also retains the right to alienate Accordingly, this Court always has required plaintiffs challenging the constitutionality of an ordinance to provide "some factual foundation of record" that contravenes the 'Even more baffling,given its decision,just a few days ago,in Lujan legislative findings. O'Gorman& Young,282 U. S.,at 258. v. Defenders of Wildlife, U.S. (1992), the Court decides In the absence of such proof, "the presumption of constitu- petitioner has demonstrated injury in fact. In his complaint,petitioner — made no allegations that he had any definite plans for using his tionality must prevail." Id., at 257. We only recently have property. App.to Pet. for Cert. 153-156. At trial,Lucas testified that reaffirmed that claimants have the burden of showing a he had house plans drawn up, but that he was"in no hurry"to build state law constitutes a taking. See Keystone Bituminous "because the lot was appreciating in value." Tr.28-29. The trial court made no findings of fact that Lucas had any plans to use the property from 1988 to 1990. "'[S]ome day'intentions—without any description of 'The Court overlooks the lack ofa ripe and justiciable claim apparently concrete plans, or indeed even any specification of when the some day out of concern that in the absence of its intervention Lucas will be unable will be—do not support a finding of the'actual or imminent'injury that to obtain further adjudication of his temporary-taking claim. The Court our cases require." _U.S.,at_(slip op.8). The Court circumvents chastises respondent for arguing that Lucas's temporary-taking claim is - Defenders of Wildlife by deciding to resolve this case as if it arrived on premature because it failed"so much as[to]commen[t]"upon the effect the pleadings alone. But it did not. Lucas had a full trial on his claim of the South Carolina Supreme Court's decision on petitioner's ability to for"damages for the temporary taking of his property from the date of obtain relief for the 2-year period, and it frets that Lucas would "be the 1988 Act's passage to such time as this matter is finally resolved,' unable (absent our intervention nowt to obtain further state-court -111 ante,at 7, n. 3, quoting the Complaint, and failed to demonstrate any adjudication with respect to the 1988-1990 period.' Ante, at 6. immediate concrete plans to build or sell. Whatever the explanation for the Court's intense interest in Lucas'plight `Respondent contested the findings of fact of the trial court in the when ordinarily we are more cautious in granting discretionary review, South Carolina Supreme Court,but that court did not resolve the issue- the concern would have been more prudently expressed by vacating the This Court's decision to assume for its purposes that petitioner had been judgment below and remanding for further consideration in light of the - denied all economic use of his land does not, of course, dispose of the 1990 amendments. At that point, petitioner could have brought a issue on remand • temporary-taking claim in the state courts. 60 LW 4854 The United States LAW WEEK 6-30-92 Coal, 480 U. S., at 485. See also Goldblatt, 369 U. S., at Mugler was only the beginning in a long line of cases.' 594(citing"the usual presumption of constitutionality"that In Powell v.Pennsylvania, 127 U. S. 678 (1888), the Court applies to statutes attacked as takings). upheld legislation prohibiting the manufacture of oleomar- Rather than invoking these traditional rules, the Court garine, despite the owner's allegation that "if prevented decides the State has the burden to convince the courts that from continuing it, the value of his property employed — its legislative judgments are correct. Despite Lucas' therein would be entirely lost and he be deprived of the complete failure to contest the legislature's findings of means of livelihood." Id., at 682. In Hadacheck v. serious harm to life and property if a permanent structure Sebastian, 239 U. S. 394 (1915), the Court upheld an is built, the Court decides that the legislative findings are ordinance prohibiting a brickyard,although the owner had _ not sufficient to justify the use prohibition. Instead, the made excavations on the land that prevented it from being Court"emphasize[s]"the State must do more than merely utilized for any purpose but a brickyard. Id., at 405. In proffer its legislative judgments to avoid invalidating its Miller v.Schoene,276 U. S.272(1928), the Court held that law. Ante, at 26: In this case, apparently, the State now the Fifth Amendment did not require Virginia to pay has the burden of showing the regulation is not a taking. compensation to the owner of cedar trees ordered destroyed The Court offers no justification for its sudden hostility to prevent a disease from spreading to nearby apple tos ard state legislators, and I doubt that it could. orchards. The"preferment of[the public interest] over the property interest of the individual,to the extent even of its destruction, is one of the distinguishing characteristics of every exercise of the police power which affects property." The Court does not reject the South Carolina Supreme Id., at 280. Again, in Omnia Commercial Co. V. United Court's decision simply on the basis of its disbelief and States,261 U. S.502(1923),the Court stated that"destruc- distrust of the legislature's findings. It also takes the tion of, or injury to, property is frequently accomplished opportunity to create a new scheme for regulations that without a'taking'in the constitutional sense." Id., at 508. eliminate all economic value. From now on, there is a More recently, in Goldblatt, the Court upheld a town categorical rule finding these regulations to be a taking regulation that barred continued operation of an existing unless the use they prohibit is a background common-law sand and gravel operation in order to protect public safety. nuisance or property principle. See ante, at 23-26. -. 369 U. S.,at 596. "Although a comparison of values before and after is relevant,"the Court stated, "it is by no means A conclusive.' Id., at 594. In 1978, the Court declared that "in instances in which a state tribunal reasonably concluded I first question the Court's rationale in creating a that'the health,safety,morals,or general welfare'would be category that obviates a "case-specific inquiry into the promoted by prohibiting particular contemplated uses of public interest advanced,"ante, at 9, if all economic value land, this Court has upheld land-use regulation that has been lost. If one fact about the Court's taking jurispru- destroyed . . . recognized real property interests." Penn dence can be stated without contradiction, it is that "the Central Transp. Co., 438 U. S., at 125. In First Lutheran particular circumstances of each case" determine whether Church v. Los Angeles County, 482 U. S. 304 (1987), the a specific restriction will be rendered invalid by the govern- owner alleged that a floodplain ordinance had deprived it of ment's failure to pay compensation. United States v. "all use"of the property. Id.,at 312. The Court remanded Central Eureka Mining Co.,357 U. S. 155, 168(1958). This the case for consideration whether, even if the ordinance is so because although we have articulated certain factors denied the owner all use, it could be justified as a safety to be considered, including the economic impact on the measure.10 Id., at 313. And in Keystone Bituminous Coal, property owner, the ultimate conclusion "necessarily the Court summarized over 100 years of precedent: "the requires a weighing of private and public interests." Agins, Court has repeatedly upheld regulations that destroy or 447 U. S., at 261. When the government regulation pre- adversely affect real property interests.' 480 U. S., at — vents the owner from any economically valuable use of his 489, n. 18. property,the private interest is unquestionably substantial, but we have never before held that no public interest can `prior to Mugler,the Court had held that owners whose real property outweigh it. Instead the Court's prior decisions"uniformly is wholly destroyed to prevent the spread of a fire are not entitled to reject the proposition that diminution in property value, compensation. Bowditch v.Boston, 101 U.S.16,18-19(1879). And the standing alone, can establish a 'taking.'" Penn Central Court recognized in The License Cases,5 How.504, 589(1847)(opinion Transp. Co. v. New York City, 438 U. S. 104, 131 (1978). of McLean,J.),that"[tJhe acknowledged police power of a State extends often to the destruction of property.' This Court repeatedly has recognized the ability of °That same year, an appeal came to the Court asking "[wlhether government,in certain circumstances,to regulate property zoning ordinances which altogether destroy the worth of valuable land without compensation no matter how adverse the financial by prohibiting the only economic use of which it is capable effect a taking effect on the owner may be. More than a century ago, the of real property without compensation.'Juris.Statement,O.T.1962,No. — Court explicitly upheld the right of States to prohibit uses 307, p. 5. The Court dismissed the appeal for lack of a substantial of property injurious to public health, safety, or welfare federal question. Consolidated Rock Products Co.v.Los Angeles,57 Cal. without paying compensation: "A prohibition simply upon 2d 515,370 Ptd 342,appeal dism'd,371 U.S.36(1962). the use of property for purposes that are declared,by valid 10On remand,the California court found no taking in part because the legislation, to be injurious to the health, morals, or safety zoning regulation 'involves this highest of public interests—the prevention of death and injury.' First Lutheran Church v.Los Angeles, of the community, cannot, in any just sense, be deemed a 210 Cal.App.3d 1353,1370,258 Cal.Rptr.893,_(1989),cert.denied, taking or an appropriation of property." Mugler v.Kansas, 493 U.S. 1056(1990). 123 U. S. 623, 668-669 (1887). On this basis, the Court "The Court's suggestion thatAgins v.Tiburon,447 U.S.255(19801, upheld an ordinance effectively prohibiting operation of a a unanimous opimon,created a new per se rule,only now discovered,is previously lawful brewery, although the "establishments unpersuasive. In Agins, the Courtstated that`no precise rule deter• mines when property has been taken" but instead that `the question will become of no value as property." Id., at 664; see also necessarily requires a weighing of public and private interest.'Id., at id., at 668. 260-262. The other cases cited by the Court.,ante,at 9,repeat the Agins — 6-30-92 The United States LAW WEEK 60 LW 4855 The Court recognizes that "our prior opinions have vania Coal Co. v. Mahon, 260 U. S. 393, 418 (1922) suggested that`harmful or noxious uses'of property may be (Brandeis, J., dissenting) ("Restriction upon [harmful] use r- proscribed by government regulation without the require- does not become inappropriate as a means,merely because ment of compensation," ante, at 17, but seeks to reconcile it deprives the owner of the only use to which the property them with its categorical rule by claiming that the Court can then be profitably put"). never has upheld a regulation when the owner alleged the B loss of all economic value. Even if the Court's factual premise were correct,its understanding of the Court's cases Ultimately even the Court cannot embrace the full ;t is distorted. In none of the cases did the Court suggest that implications of its per se rule: it eventually agrees that the right of a State to prohibit certain activities without there cannot be a categorical rule for a taking based on paying compensation turned on the availability of some economic value that wholly disregards the public need residual valuable use.' Instead, the cases depended on asserted. Instead, the Court decides that it will permit a whether the government interest was sufficient to prohibit State to regulate all economic value only if the State the activity, given the significant private cost.' prohibits uses that would not be permitted under "back- These cases rest on the principle that the State has full ground principles of nuisance and property law."'' Ante, power to prohibit an owner's use of property if it is harmful at 26. to the public. "[S]ince no individual has a right to use his Until today,the Court explicitly had rejected the Conten- - property so as to create a nuisance or otherwise harm tion-that the government's power to act without paying others, the State has not`taken' anything when it asserts compensation turns on whether the prohibited activity is a its power to enjoin the nuisance-like activity." Keystone common-law nuisance.' -The brewery closed in Mugler • Bituminous Coal, 480 U. S., at 491, n. 20. It would make itself was not a common-law nuisance, and the Court no sense under this theory to suggest that an owner has a specifically stated that it was the role of the legislature to constitutionally protected right to harm others, if only he determine what measures would be appropriate for the makes the proper showing of economic loss." See Pennsyl- protection of public health and safety. 'See 123 U. S., at 661.—In upholding the state action in Miller, the Court found it unnecessary to "weigh with nicety the question sentence,but in no way suggest that the public interest is irrelevant if whether the infected cedars constitute a nuisance according total value has been taken. The Court has indicated that proof that a to common law; or whether they may be so declared by regulation does not deny en owner economic use -of his property is " sufficient to defeat a facial taking challenge. See Hodel v. Virginia statute. . 276 U. S., at 280. See also Goldblatt, 369 U. S., Surface Mining & Reclamation Assn_, Inc., 452 U.S. 264, 295-297 at 593; Hadacheck, 239 U. S.,•at 411. Instead the Court (1981). But the conclusion that a regulation is not on its face a taking has relied in the past, as the South Carolina Court has because it allows the landowner some economic use of property is a far done here, on legislative judgments-of what constitutes a • f cry from the proposition that denial of such use is sufficient to establish harm 17, —. -- sei ' a taking claim regardless of any other consideration. The Court never has accepted the latter proposition. The Court relies today on dicta in Agins,Hodel,Nonan v.California 'Although it refers to state nuisance and property law, the Court Coastal Comm'n,483 U.S.825(1987),and Keystone Bituminous Coal v. apparently does not mean just any state nuisance and property law. DeBenedictis,480 U.S.470(1987),for its new categorical rule. Ante,at Public nuisance was first a common-law creation, see Newark, The 10. I prefer to rely on the directly contrary holdings in cases such as Boundaries of Nuisance, 65 L.'Q. Rev. 480, 482 (1949) (attributing Mugler and Hadacheck,not to mention contrary statements in the very development of nuisance to 1535),but by the 1800s in both the United cases on which the Court relies. See Agins, 447 U.S.; at 260-262; States and England,legislatures had the power to define what is a public Keystone Bituminous Coal,480 U.S.,at 489 n. 18,491-492. nuisance, and particular uses often have been selectively targeted. See "Miller v.Schoene,276 U.S.272(1928),is an example. In the course Prosser,Private Action for Public Nuisance,52 Va.L.Rev.997,999-1000 of demonstrating that apple trees are more valuable than red cedar trees, (1966);J.F.Stephen,A General View of the Criminal Law of England the Court noted that red cedar has"occasional use and value as lumber." 105-107 (2d ed. 1890). The'Court's references to "common-law" Id.,at 279. But the Court did not discuss whether the timber owned by background principles,however,indicate that legislative determinations the petitioner in that case was commercially saleable,and nothing in the do not constitute"state nuisance and property law"for the Court. ' • opinion suggests that the State's right to require uncompensated felling 'Also, until today the fact that the regulation prohibited uses that = of the trees depended on any such salvage value. To the contrary,it is were lawful at the time the owner purchased did not determine the clear from its unanimous opinion that the Schoene Court would have constitutional question. The brewery,the brickyard,the cedar trees,and sustained a law requiring the burning of cedar trees if that had been the gravel pit were all perfectly legitimate uses prior to the passage of necessary to protect apple trees in which there was a public interest:the the regulation. See Mugler v. Kansas, 123 U.S. 623, 654 (1887); Court spoke of preferment of the public interest over the property Hadacheck v.Los Angeles,239 U.S.394(1915);Miller,276 U.S.,at 272; interest of the individual,"to the extent even of its destruction." Id.,at Goldblatt v. Hempstead, 369 U.S. 590 (1962). This Court explicitly 280. acknowledged in H,dru-heck that"[a]vested interest cannot be asserted 'The Court seeks to disavow the holdings and reasoning of Mugler and against[the police power]because of conditions once obtaining. To so subsequent cases by explaining that they were the Court's early efforts hold would preclude development and fix a city forever in its primitive to define the scope of the police power. There is language in the earliest conditions? 239 U.S.,at 410(citation omitted). taking cases suggesting that the police power was considered to be the "The Court argues that finding no taking when the legislature power simply to prevent harms. Subsequently,the Court expanded its prohibits a harmful use,such as the Court did in Mugler and the South understanding of what were government's legitimate interests. But it Carolina Supreme Court did in the instant case,would nullify Pennsylua- does not follow that the holding of those early cases—that harmful and nia Coal. See ante, at 17. Justice Holmes,the author of Pennsylvania noxious uses of property can be forbidden whatever the harm to the Coal,joined Miller v.Schoene,276 U.S.272(1928),six years later. In property owner and without the payment of compensation—was Miller, the Court adopted the exact approach of the South Carolina repudiated. To the contrary, as the Court consciously expanded the Court: It found the cedar trees harmful, and their destruction not a scope of the police power beyond preventing harm,it clarified that there taking,whether or not they were a nuisance. Justice Holmes apparently ( was a core of public interests that overrode any pnvate interest. See believed that such an approach did not repudiate his earlier opinion. Keystone Bituminous Coal,480 U.S.,at 491,n.20. Moreover,this Court already has been over this ground five years ago, 'Indeed, it would be extraordinary to construe the Constitution to and at that point rejected the assertion that Pennsyluania Coal was require a government to compensate private landowners because it inconsistent with Mugler,Hadacheck,Miller,or the others in the string denied them 'the right'to use property which cannot be used without of"noxious use'cases,recognizing instead that the nature of the State's — risking injury and death." First Lutheran Church,210 Cal.App.3d,at action is critical in takings analysis. Keystone Bituminous Coal, 480 1366,258 Cal.Rptr.,at_ U.S.,at 490. 60 LW 4856 The United States LAW WEEK 6-30-92 The Court rejects the notion that the State always can abandons the level of generality of sic utere tuo ut alienum prohibit uses it deems a harm to the public without non laedas, ante, at 26, one searches in vain, I think, for — granting compensation because "the distinction between anything resembling a principle in the common law of 'harm-preventing'and'benefit-conferring'regulation is often nuisance. in the eye of the beholder." Ante, at 18. Since the charac- terization will depend "primarily upon one's evaluation of the worth of competing uses of real estate,"ante, at 19, the Finally, the Court justifies its new rule that the legisla- Court decides a legislative judgment of this kind no longer ture may not deprive a property owner of the only economi- can provide the desired "objective, value-free basis" for tally valuable use of his land, even if the legislature finds upholding a regulation. Ante, at 20. The Court, however, it to be a harmful use,because such action is not part of the fails to explain how its proposed common law alternative "long recognized""understandings of our citizens." Ante,at escapes the same trap. - 22. These"understandings"permit such regulation only if The threshold inquiry for imposition of the Court's new the use is a nuisance under the common law. Any other rule, "deprivation of all economically valuable use," itself course is"inconsistent with the historical compact recorded cannot be determined objectively. As the Court admits, in the Takings Clause." Ante, at 22. It is not clear from whether the owner has been deprived of all economic value the Court's opinion where our "historical compact" or of his property will depend on how "property" is defined. "citizens'understanding"conies from,but it does not appear The "composition of the denominator in our 'deprivation' to be history. fraction," ante, at 11, n. 7, is the dispositive inquiry. Yet The principle that the State should compensate individu- there is no"objective"way to define what that denominator als for property taken.for public use was not widely should be. "We have long understood that any land-use established in America at the time of the Revolution. regulation can be characterized as the'total' deprivation of "The colonists . . . inherited a concept of property an aptly defined entitlement. . . . Alternatively, the same which permitted extensive regulation of the use of that regulation can always be characterized as a mere 'partial' property for the public benefit—regulation that could withdrawal from full, unencumbered ownership of the evengo so far as to denyall landholdingaffected by the regulation. . ^1e productive use of the . . Michelman, property to the owner if, as Coke himself stated, the Takings, 1987, 88 Colum. L. Rev. 1600, 1614 (1988). regulation 'extends to the public benefit . . .for this is The Court's decision in Keystone Bituminous Coal for the public, and every one hath benefit by it.'" illustrates this principle perfectly. In Keystone, the Court determined that the"support estate"was "merely a part of F. Bosselman, D. Collies & J. Banta, The Taking Issue the entire bundle of rights possessed by the owner." 480 U. S., at 501. Thus, the Court concluded that the support 80-81 (1973),quoting The Case of the King's Prerogative in estate's destruction merely eliminated one segment of the Saltpetre,12 Co.Rep. 12-13(1606)(hereinafterBosselman). total property. Ibid. The dissent, however, characterized See also Treanor,The Origins and Original Significance of the support estate as a distinct property interest that was the Just Compensation Clause of the Fifth Amendment, 94 wholly destroyed. Id., at 519. The Court could agree on no Yale L.J. 694, 697, n. 9 (1985).20 "value-free basis"to resolve this dispute. _ _. Even into the 19th century, state governments often felt - Even more perplexing,however,is the Court's reliance on free to take property for roads and other public projects common-law principles of nuisance in its quest for a value- without paying compensation to the owners' See M. free taking jurisprudence. In determining what is a Horwitz,The Transformation of American Law,1780-1860, nuisance at common law, state courts make exactly the pp.63-64(1977)(hereinafter Horwitz);Treanor,94 Yale L. - decision that the Court finds so troubling'when made by the J., at 695. As one court declared in 1802, citizens "were South Carolina General Assembly today:,they determine bound to contribute as much of[land],as by the laws of the whether the use is harmful. Common-law public and country,were deemed necessary for the public convenience." private nuisance law is simply a determination whether a M'Clenachan v. Curwin, 3 Yeates 362, 373 (Pa. 1802). particular use causes harm. See Prosser,Private Action for There was an obvious movement toward establishing the Public Nuisance, 52 Va. L.Rev. 997, 997(1966)("Nuisance just compensation principle during the 19th century, but "there continued to be a strong current in American legal is a French word which means nothing more than harm"). There is nothing magical in the reasoning of judges long thought that regarded compensation simply as a 'bounty dead. They determined a harm in the same way as state given . . . by the State' out of 'kindness' and not out of judges and legislatures do today. If judges in the 18th and justice." Horwitz 65 (quoting Commonwealth v. Fisher, 1 19th centuries can distinguish a harm from a benefit, why not judges in the 20th century, and if judges can, why not every taste." W. Rodgers, Environmental Law §2.4, at 48 (1986) legislators? There simply is no reason to believe that new (footnotes omitted). The Court itself has noted that"nuisance concepts" interpretations of the hoary common law nuisance doctrine are"often vague and indeterminate.' Milwaukee v.Illinois,451 U.S. will be particularly "objective" or "value-free."19 Once one 304,317(1981). . . 10See generally Sax, 74 Yale L.J., at 56-59. 'The evidence certainly "See to indicate that the mere fact that government activity destroyed also Michelman, Property,Utility,and Fairness,Comments on existing economic advantages and power did not disturb [the English the Ethical Foundations of"Just Compensation"Law, 80 Harv. L.Rev. theorists who formulated the compensation notion] at all.' Id., at 56. 1165,1192-1193(1967);Sax,Takings and the Police Power,74 Yale L.J. Professor Sax contends that even Blackstone,"remembered champion of 36,60(1964). the language of private property,"did not believe that the compensation "There is perhaps no more impenetrable jungle in the entire law than clause was meant to preserve economic value. Id.,at 58-59. that which surrounds the word'nuisance.' It has meant a])things to all "In 1796, the Attorney General of South Carolina responded to people, and has been applied indiscriminately to everything from an property holders'demand for compensation when the State took their alarming advertisement to a cockroach baked in a pie." W.Keeton,D. land to build a road by arguing that`there is not one instance on record, Dobbs,R Keeton,D.Owen,Prosser and Keeton on The Law of Torts 616 and certainly none within the memory of the oldest man now living,of (5th ed 1964)(footnotes omitted). It is an area of law that"straddles the any demand being made for compensation for the soil or freehold of the legal universe,virtually defies synthesis,and generates case law to suit lands,' Lindsay v.Commissioners,2 S.C.L.38,49(1796). • 6-30-92 The United States LAW WEEK 60 LW 4-837 Pen. & W. 462, 465 (Pa. 1830)). See also State v. Dawson, In addition,state courts historically have been less likely 3 Hill 100, 103 (S.C. 1836)).22 to find that a government action constitutes a taking when Although, prior to the adoption of the Bill of Rights, the affected land is undeveloped. According to the South America was replete with land use regulations describing Carolina court, the power of the legislature to take unim- which activities were considered noxious and forbidden,see proved land without providing compensation was sanctioned Bender, The Takings Clause: Principles or Politics?, 34 by"ancient rights and principles." Lindsay v.Commission- Buffalo L. Rev. 735, 751 (1985); L. Friedman, A History of ers, 2 S.C.L. 38, 57 (1796). ."Except for Massachusetts, no American Law 66-68(1973),the Fifth Amendment's Taking colony appears to have paid compensation when it built a Clause originally did not extend to regulations of property,, state-owned road across unimproved land. Legislatures whatever the effect.23 See ante, at 8. Most state courts provided compensation only for enclosed or improved land." agreed with this narrow interpretation of a taking. "Until Treanor, 94 Yale L.J.,at 695(footnotes omitted). This rule the end of the nineteenth century; . .jurists held that the• was followed by some States into the 1800s. See Horwitz constitution protected possession only, and not value." 63-65. • Siegel, Understanding the Nineteenth Century Contract With similar result, the common agrarian conception of Clause:The Role of the Property-Privilege.Distinction and property limited owners to"naturaL"_uses of their land prior "Takings" Clause Jurisprudence, 60 S. .Cal. L. Rev...1,.76 to and during much of.the_18th century._ See id., at 32.- 0986); Bosselman 106. Even indirect and consequential_ Thus, for example, the owner could build nothing on his injuries to property resulting ;from regulations were land that would alter the natural flow of water. See id.,at excluded from the definition of a taking. See Bosselman. 44; see also, e.g., Merritt.v. Parker, 1 Coxe 460, 463 (N.J. 106; Callender v.Marsh, 1 Pick. 418, 430(Mass. 1823). 1795). Some more recent state courts still follow this Even when courts began to consider that regulation in reasoning. See,e.g.,Just v.Marinette County,56 Wis.2d 7, some situations could constitute a taking,they continued to 201 N.W.2d 761, 768 (1972). uphold bans on particular uses without paying compensa-, Nor does history indicate any common-law limit on the tion, notwithstanding the economic impact, under._the. State's power to regulate harmful uses even to the point of rationale that no one can obtain a vested right to injure or destroying all economic value. Nothing in the discussions endanger the public.2a In the Coates cases, for example, in Congress concerning the Taking Clause indicates that the Supreme Court of New York found no taking in New the Clause was limited by the common-law -nuisance York's ban on the interment of the dead within the city, doctrine. Common law courts themselves rejected such an although"no other use can be made of these lands." Coates understanding..They regularly recognized that it is"for the v. City of New York, 7 Cow. 585, 592(N.Y.,1827). See also, legislature to interpose, and by positive enactment to Brick Presbyterian Church v. City of New York, 5 Cow. 538 prohibit a use of property which would be injurious to the (N.Y. 1826); Commonwealth v. Alger, 7 Cush..53, 59, 104 public.": Tewksbury,•11 Metc., at 57.2'. Chief Justice Shaw (Mass. 1851); St. Louis Gunning Advertisement Co. v. St. explained in upholding a regulation prohibiting construction Louis, 235 Mo. 99, _, 137 S.W. 929, 942 (1911), appeal of wharves, the existence of a taking did not depend on —� dism'd, 231 U. S. 761 (1913). More recent cases reach the "whether.a certain erection in tide water is a nuisance at same result. See Consolidated Rock Products Co. v. Los- common law or not." Alger, 7 Cush.,at 104;see also State Angeles, 57 Ca1.2d 515, 370 P.2d 342, appeal dism'd, 371 v.Paul,5 R.I. 185, 193(1858);Commonwealth v.Parks,.155 U. S. 36 (1962);Nassr v. Commonwealth, 394 Mass. 767, Mass. 531,_.532, 30 N.E. 174 (1892) (Holmes, J.) ("[Tlhe 477 N.E.2d 987 (1985); Eno v. Burlington, 125 Vt. 8, 209 legislature may change the common law as to nuisances, A.2d 499(1965);Turner v.County of Del Norte,24 Cal.App. and may move the line either way, so as to make things 3d 311, 101 Cal. Rptr. 93 (1972): - • nuisances which were-not.so, or to make.things lawful - which were nuisances").. • - ` • In short,I find no clear and accepted"historical compact", 'Only the constitutions of Vermont and Massachusetts required that or"understanding of our citizens"justifying the Court's new compensation be paid when private property was taken for public use; taking doctrine. Instead, the Court seems to treat history and although eminent domain was mentioned in the Pennsylvania as a grab-bag of principles, to be adopted where they constitution,its sole requirement was that property not be taken without support the Court's theory, and ignored where they do not. the consent of the legislature. See Grant,The"Higher Law"Background If the Court decided that the early common law provides of the Law of Eminent Domain,in 2 Selected Essays on Constitutional Law 912,915-916(1938). By 1868,five of the original States still had the background principles for interpreting the Taking no just compensation clauses in their constitutions. Ibid Clause,then regulation,as opposed to physical confiscation, "James Madison,author of the Taking Clause,apparently intended it would not be compensable. If the Court decided that the to apply only to direct, physical takings of property by the Federal law of a later period provides the background principles, Government. See Treanor,The Origins and Original Significance of the then regulation might be compensable,but the Court would Just Compensation Clause of the Fifth Amendment, 94 Yale L.J.,694, have to confront the fact that legislatures regularly deter- - 711 (1985). Professor Sax argues that although 'contemporaneous mined which •uses were prohibited, independent of the commentary upon the meaning of the compensation clause is in very common law, and independent of whether the uses were short supply,"74 Yale L.J.,at 58,the'few authorities that are available" indicate that the clause was`designed to prevent arbitrary government lawful when the owner purchased. What makes the Court's action,'not to protect economic value. Id,at 58-60., . . ' analysis unworkable is its attempt to package the law of "For this reason, the retroactive application of the regulation to two incompatible eras and peddle.it as historical fact.26 formerly lawful uses was not a controlling distinction in the past. 'Nor can it make any difference that the right is purchased previous to the 'More recent state court decisions agree. See, mg., Lane v. Mt passage of the by-law,"for'(elvery right,from an absolute ownership in property,down to a mere easement,is purchased and holden subject to Vernon, 38 N.Y.2d 344, 342 N.E.2d 571,573(1976);Commonwealth v. the restriction, that it shall be so exercised as not to injure others. Baker, 160 Pa.Super.640,5.3 A.2d 829,830(1947). Though,at the time,it be remote and inoffensive,the purchaser is bound 'The Court asserts that all early American experience, prior to and to know, at his peril,that it may become otherwise." Coates v.City of after passage of the Bill of Rights, and any case law prior to 1897 are New York, 7 Cow. 585, 605 (N.Y. 1827). See also Brick Presbyterian. 'entirely irrelevant" in determining what is 'the historical compact Church v.City ofNewYork,5 Cow.538,542(N.Y.1826);Commonwealth recorded in the Takings Clause.' Ante,at 22,n.15. Nor apparently are v.Tewksbury,11 Metc.55(Mass.1846);State v.Paul,5 R.I.185(1858): we to find this compact in the early federal taking cases,which clearly 60 LW' 4858 The United States LAW WEEK 6-30-92 • V Liverpool,N.Y.&P.S.S.Co.v.Emigration Commission- The Court makes sweeping and, in my view, misguided ers, 113 U. S. 33, 39; [citing five additional cases]. 'It and unsupported changes in our taking doctrine. While it is not the habit of the Court to decide questions of a limits these changes to the most narrow subset of govern- constitutional nature unless absolutely necessary to a ment regulation—those that eliminate all economic value decision of the case.' Burton v. United States, 196 U. S. from land—these changes go far beyond what is necessary 283, 295." Id., at 346-347. to secure petitioner Lucas'private benefit. One hopes they Cavalierly dismissing the doctrine of judicial restraint, do not go beyond the narrow confines the Court assigns the Court today tersely announces that"we do not think it them to today. prudent to apply that prudential requirement here." Ante, I dissent. at 7. I respectfully disagree and would save consideration of the merits for another day. Since, however, the Court - - has reached the merits,I shall do so as well. JUSTICE STEVENS, dissenting. Today the Court restricts one judge-made rule and '= ' II expands another. In my opinion it errs on both counts. In its analysis''of the merits;the Court starts from the Proper application of the doctrine of judicial restraint would premise that this Court has adopted a"categorical rule that _ avoid the premature adjudication of an important constitu- total regulatory takings must be compensated,"ante,at 21, tional question. Proper respect for our precedents would and then sets itself to the task of identifying the exceptional avoid an illogical expansion of the_ concept of"regulatory cases in'which a State maybe ielieved of this categorical takings." obligation. Ante, at 21.-22. `Th_e test the Court announces is that the regulation must do no more than duplicate the result that could have been achieved under a State's As the Court notes, ante, at 5, South Carolina's nuisance law. Ante, at 24. Under this test the categorical Beachfront Management Act has been imended to permit rule will apply unless the regulation merely makes explicit some construction of residences seaward of the line that what was otherwise an implicit limitation on the owner's frustrated petitioner's proposed use of his property. -Until property rights. -- -.`_-L- he exhausts his right to apply for a special permit under In my opinion,the Court is doubly in-error. The categori- that amendment, petitioner is not entitled to an adjudica- cal rule the Court establishes is an unsound and unwise tion by this Court of the merits of his permanent takings addition to the law and the 'Court's formulation of the claim. MacDonald,Sommer&Frates v.County of Yolo,477 exception to that rule is too rigid and toorrow. - <i . U. S. 340, 351 (1986). -_ .- � .. .. . . narrow.._ -.It is also not clear that he has a viable "temporary The Categorical Rule - takings"claim. If we assume that petitioner is now able to As the Court recognizes,ante,at 9,Pennsylvania Coal Co. build on the lot, the only injury that he may have suffered v. Mahon, 260 U. S. 393 (1922), provides no support for- is the delay caused by the temporary existence of the its—or, indeed, any—categorical rule. To the contrary, absolute statutory ban on construction. We cannot be sure, Justice Holmes recognized that such absolute rules ill fit however, that that delay caused petitioner any harm the inquiry into "regulatory takings." Thus, in the para- because the record does not tell us whether his building graph that contains his famous observation that a regula- plans were even temporarily frustrated by the enactment of tion may go "too far" and thereby constitute a taking, the the statute. Thus, on the present record it is entirely Justice wrote: "As we already have said, this is a question possible that petitioner has suffered no injury-in-fact even of degree—and therefore cannot be disposed of by general if the state statute was unconstitutional when he filed this propositions. Id. at 416. What he had "already. . .said" lawsuit. made perfectly clear that Justice Holmes regarded economic It is true, as the Court notes, that the argument against injury to be merely one factor to be weighed: "One fact for deciding the constitutional issue in this case rests on consideration in determining such limits is the extent of the prudential considerations rather than a want of jurisdiction. diminution [of value.] So the question depends upon the I think it equally clear, however,that a Court less eager to particular facts." Id. at 413. decide the merits would follow the wise counsel of Justice Nor does the Court's new categorical rule find support in Brandeis in his deservedly famous concurring opinion in decisions following Mahon. Although in dicta we have Ashwander v. Tennessee Valley Authority, 297 U. S. 288, sometimesrecited that a law "effects a taking if [it] . . . 341 (1936). As he explained, the Court has developed"for denies an owner economically viable use of his land,"Agins its own governance in the cases confessedly within its v. Tiburon, 447 U. S. 255, 260 (1980), our rulings have jurisdiction, a series of rules under which it has avoided rejected such an absolute position. We have frequently— passing upon a large part of all the constitutional questions and recently—held that,in some circumstances,a Law that pressed upon it for decision." Id. at 346. The second of renders property valueless may nonetheless not constitute those rules applies directly to this case. a taking. See, e.g., First English Evangelical Lutheran "2. The Court will not'anticipate a question of consti- Church of Glendale v.County of Los Angeles,482 U. S.304, tutional law in advance of the necessity of deciding it.' 313 (1987); Goldblatt v. Hempstead, 369 U. S. 590, 596 . (1962); United States v. Caltex, 344 U. S. 149, 155 (1952); Miller v. Schoen, 276 U. S. 272 (1928); Hadachek v. permitted prohibition of harmful uses despite the alleged loss of all value, Sebastian,239 U. S.394,405(1915);Mugler v.Kansas, 123 whether or not the prohibition was a common-law nuisance,and whether or not the prohibition occurred subsequent to the purchase. See supra, U. S. 623, 657(1887);cf.Ruckelshaus v.Monsanto Co.,467 pp.13-14,18-19,and n. 16. I cannot imagine where the Court finds its U. S. 986, 1011 (1984); Connolly v. Pension Benefit 0- "histoncal compact,'if not in history. Guaranty Corporation, 475 U. S. 211,225(1986). In short, In this regard,it is noteworthy that petitioner acquired the lot about as we stated in Keystone Bituminous Coal Assn. v.DeBene- 18 months before the statute was passed;there is no evidence that he dictis, 480 U. S. 470, 490 (1987), "'Although a comparison ever sought a building permit from the local authorities. of values before and after' a regulatory action 'is relevant, A- -.1 ' 6-30-92 The United States LAW WEEK 60 LW 4859 7- :t 11 . . . it is by no means conclusive.'" . . . takings jurisprudence. In addition to lacking support in past decisions, the Finally, the Court's justification for its new categorical ;' Court's new rule is wholly arbitrary. A landowner whose rule is remarkably thin. The Court mentions in passing I- t: property is diminished in value 95%recovers nothing,while three arguments in support of its rule;none is convincing. .` an owner whose property is diminished 100% recovers the First,the Court suggests that"total deprivation of feasible land's full value. The case at hand illustrates this arbi- use is,from the landowner's point of view,the equivalent of t. i '' trariness well. The Beachfront Management Act not only a physical appropriation." Ante, at 12. This argument prohibited the building of new dwellings in certain areas,it proves too much. From the "landowner's point of view," a • also prohibited the rebuilding of houses that were "de- regulation that diminishes a lot's value by 50% is as well 11 stroyed beyond repair by natural causes or by fire." 1988 "the equivalent"of the condemnation of half of the lot. Yet, S. C. Acts 634, §3; see also Esposito v. South Carolina it is well established that a 50% diminution in value does Coastal Council, 939 F. 2d 165, 167(CA4 1991).2 Thus, if not by itself constitute a taking. See Euclid v. Ambler the homes adjacent to Lucas' lot were•destroyed by a Realty Co., 272 U. S. 365, 384 (1926) (75% diminution in oi hurricane one day after the Act took effect, the owners value). Thus, the landowner's perception of the regulation . — would not be able to rebuild, nor would they be assured. cannot justify the Court's new rule. " .- : _ _. . recovery. Under the Court's categorical approach, Lucas Second,'the Court emphasizes that because total takings (who has lost the opportunity to build) recovers, while his are "relatively rare" its neve rule will not adversely affect neighbors(who have lost both the opportunity to build and the government's ability to "go on." Ante, at 12. This their homes) do not recover. .The arbitrariness of such a argument proves too little. Certainly it is true that defining rule is palpable. ...... • • - a small class of regulations that are per se takings will not Moreover,because of the elastic nature of property rights, greatly hinder important governmental functions—but this the Court's new rule will also prove unsound in practice. In is •true of any small class of regulations. The Court's response to the rule, courts may define "property" broadly suggestion only begs the question of why regulations of this and only rarely find,regulations to effect total takings. This particular class should always be found to effect takings. is the approach the Court itself adopts.in its revisionist Finally, the Court suggests that "regulations.that leave the owner . . , without economically beneficial . . use . . . reading of venerable precedents. • We are told that–not- -- withstanding the Court's findings to the contrary in each carry with them a heightened risk that private property is case—the brewery in Mugler, the brickyard in Hadacheck, being pressed into some form of public service." Ibid. As and the gravel pit in Goldblatt all could be put to "other discussed more fully below,see infra,Part III,I agree that uses".and that, therefore, those cases did not involve total the risks of such singling out are of central concern in regulatory takings.' Ante, at 21, n. 13. takings law. However, such risks do not justify a per se rule for total regulatory takings. There is no necessary On the other hand,developers and investors may market correlation between "singling out" and total takings:.a specialized estates to take advantage of the Court's new regulation may single out a property owner without -,- , rule. The smaller the estate, the more likely that a depriving him of all of his property, see e.g., Nollan v. regulatory change will effect a total taking. Thus, an California Coastal Comm'n, 483 U. S. 825, 837 (1987); investor may, for example, purchase the right to build a J.E.D.Associates,Inc.v.Atkinson, 121 N. H. 581,432 A.2d multi-family home on a specific lot, with the result that a 12 (1981); and it may deprive him of all of his property zoning regulation that allows only single-family homes without singling him out, see e.g., Mugler v. Kansas, 123 would render the investor's property interest "valueless."' U. S. 623 (1887); Hadachek v. Sebastian, 329 U. S. 394 In short, the categorical rule will likely have one of two (1915). What matters in such cases is not the degree of effects:Either courts will alter_the definition of the"denom- diminution of value, but rather the specificity of the inator" in the takings "fraction," rendering the Court's expropriating act. For this reason, the Court's third categorical rule meaningless, or investors will manipulate justification for its new rule also fails. the relevant property interests, giving the Court's rule In short, the Court's new rule is unsupported by prior I. sweeping effect. To my mind, neither of these results is decisions, arbitrary and unsound in practice, and theoreti- -- desirable or appropriate, and both are distortions of our cally unjustified. In my opinion, a categorical rule as important as the one established by the Court today should be supported by more history or more reason than has yet This aspect of the Act was amended in 1990. See S.C. Code been provided_ - §48-39-290(B)(Supp. 1990). 'Of course,the same could easily be said in this case:Lucas may put The Nuisance Exception his land to"other uses"—fishing or camping,for example—or may sell his land to his neighbors as a buffer. In either event,his land is far from Like many bright-line rules, the categorical rule"estab- "valueless." -. . . -- . lished in this case is only"categorical"for a page or two in This highlights a fundamental weakness in the Court's analysis: its the U. S. Reports. No sooner does the Court state that failure to explain why only the impairment of"economically beneficial or "total regulatory takings must be compensated,"ante,at 21, productive use,'ante,at 10(emphasis added),of property is relevant in it quickly establishes an exception to that rule. takings analysis. I should think that a regulation arbitrarily prohibiting an owner from continuing to use her property for bird-watching or The exception provides that a regulation that renders sunbathing might constitute a taking under some circumstances; and, property valueless is not a taking if it prohibits uses of conversely,that such uses are of value to the owner. Yet the Court offers no basis for its assumption that the only uses of property cognizable property that were not "previously permissible under under the Constitution are developmental uses. - relevant property and nuisance principles." Ante, at 24. 'This unfortunate possibility is created by the Court's subtle revision The Court thus rejects the basic holding in Mugler v. 4tof the"total regulatory takings"dicta. In past decisions,we have stated Kansas, 123 U. S. 623 (1887). There we held that a state- that a regulation effects a taking if it "denies an owner economically wide statute that prohibited the owner of a brewery from viable use of his land,"Agins v. Tiburon, 447 U.S., 255, 260 (1980) making alcoholic beverages did not effect a taking, even (emphasis added),indicating that this"total takings"test did not apply to other estates. Today,however,the Court suggests that a regulation though the use of the property had been perfectly lawful may effect a total taking of any real property interest. See ante, at 11, and caused no public harm before the statute was enacted. °'7- We squarely rejected the rule the Court adopts today: 60 LW 4860 The United States LAW WEEK 6-30-92 "It is true, that, when the defendants . . . erected their economy and the environment occur with increasing �. breweries, the laws of the State did not forbid the frequency and importance. If it was wise a century ago to manufacture of intoxicating liquors. But the State did allow Government "`the largest legislative discretion'" to — not thereby give any assurance, or come under an deal with"'the special exigencies of the moment,'"Mugler, obligation, that its legislation upon that subject would 123 U. S., at 669, it is imperative to do so today. The rule — remain unchanged. [T]he supervision of the public that should govern a decision in a case of this kind should health and the public morals is a governmental power, focus on the future, not the past.' 'continuing in its nature,' and to be dealtwith as the special exigencies of the moment may require;'. . .'for • * * * this purpose, the largest legislative discretion is The Court's categorical approach rule will,I fear,greatly allowed, and the discretion cannot be parted with any hamper the efforts of local officials and planners who must more than the power itself.'" Id., at 669. deal with increasingly complex problems in land-use and Under our reasoning in Mugler, a state's decision to environmental regulation. As this case—in which the — prohibit or to regulate certain uses of property is not a claims of an individual property owner exceed $1 mil- compensable taking just because the particular uses were lion—well demonstrates, these officials face both substan- previously lawful. Under the Court's opinion today, tial uncertainty because of the ad hoc nature of takings law however, if a state should decide to prohibit the manufac- and unacceptable penalties if they guess incorrectly about ture of asbestos, cigarettes, or concealable firearms, for that law. • example, it must be prepared to pay for the adverse Viewed more broadly,the Court's new rule and exception economic consequences of its decision. One must wonder if conflict with the very character of our takings jurispru- Government will be able to"go on"effectively if it must risk dence. We have frequently and consistently recognized that compensation "for every such change in the general law." the definition of a taking cannot be reduced to a "set Mahon, 260 U. S., at 413. formula" and that determining whether a regulation is a The Court's holding today effectively freezes the State's taking is "essentially [an] ad hoc, factual inquir[y]." Penn common law,denying the legislature much of its traditional Central Transportation Co.v.New York City,438 U. S. 104, power to revise the law governing the rights and uses of 124 (1978)(quoting Goldblatt v.Hempstead, 369 L. S. 590, ro 594 (1962)). This is unavoidable, for the determination property.y. Until today, I had thought that we had long whether a law effects a taking is ultimately a matter of abandoned this approach to constitutional law. More than — a century ago we recognized that "the great office of `fairness and justice,"Armstrong v. United States,364 U.S. statutes is to remedy defects in the common law as they are 40, 49 (1960), and "necessarily requires a weighing of private and public interests." Agins, 447 U. S.,at 261. The developed, and to adapt it to the changes of time and circumstances." Munn v.Illinois, 94 L'. S. 113, 134(1877). rigid rules fixed by the Court today clash with this enter- As Justice Marshall observed about a position similar to prise:"fairness and justice"are often disserved by categori that adopted by the Court today: cal rules. • "If accepted,that claim would represent a return to the III era of Lochner v.New York, 198 U. S..45 (1905),when It is well established that a takings case"entails inquiry common-law rights were also found immune from into [several factors:] the character of the governmental revision by State or Federal Government. Such an action, its economic impact, and its interference with approach would freeze the common law as it has been reasonable investment-backed expectations." PruneYard, — constructed by the courts, perhaps at its 19th-century 447 U. S.,at 83. The Court's analysis today focuses on the state of development. It would allow no room for last two of these three factors: the categorical rule change in response to changes in circumstance. The addresses a regulation's "economic impact," while the Due Process Clause does not require such a result." nuisance exception recognizes that ownership brings with — PruneYard Shopping Center v.Robins, 447 U. S.74,93 it only certain"expectations." Neglected by the Court today (1980)(concurring opinion). is the first, and in some ways,the most important factor in Arresting the development of the common law is not only takings analysis: the character of the regulatory action. a departure from our prior decisions; it is also profoundly The Just Compensation Clause "was designed to bar unwise. The human condition is one of constant learning Government from forcing some people alone to bear public and evolution—both moral and practical. Legislatures burdens which, in all fairness and justice, should be borne implement that new learning; in doing so they must often _ revise the definition of property and the rights of property owners. Thus, when the Nation came to understand that 'Even measured in terms of efficiency, the Court's rule is unsound. slavery was morally wrong and mandated the emancipation The Court today effectively establishes a form of insurance against of all slaves, it, in effect, redefined"property." On a lesser certain changes in land-use regulations. Like other forms of insurance, — scale, our ongoing self-education produces similar changes the Court's rule creates a"moral hazard"and inefficiencies:In the face in the rights of property owners: New appreciation of the of uncertainty about changes in the law,developers will ovennvest,safe in the knowledge that if the law changes adversely,they will be entitled significance of endangered species, see, e.g., Andrus v. to compensation. See generally Farber, Economic Analysis and Just Allard,444 U. S.51(1979);the importance of wetlands,see. Compensation, 12 Intl Rev.of Law&Econ. 125(1992). e.g., 16 U. S. C. §3801 et seq.; and the vulnerability of 'As the Court correctly notes,in regulatory takings,unlike physical coastal lands,see,e.g., 16 U. S. C. §1451 et seq.,shapes our takings,courts have a choice of remedies. See ante, at 25,n. 17. They evolving understandings of property rights. may ''invalidat(e the] excessive regulation" or they may "allo[w] the Of course, some legislative redefinitions of property will regulation to stand and orde(r]the government to afford compensation for the permanent taking." First English Evangelical Lutheran Church effect a taking and must be compensated—but it certainly v.County of Los Angeles,482 U.S.304,335(198 7)(STEVENS,J.,dissent- cannot be the case that every movement away from common ing);see also id., at 319-21. In either event,however,the costs to the law does so. There is no reason, and less sense,in such an government are likely to be substantial and are therefore likely to absolute rule. We live in a world in which changes in the impede the development of sound land-use policy. r 6-30-92 The United States LAW WEEK 60 LW 4-861 €: by the public as a whole." Armstrong, 364 U. S., at 49. regulation requiring the installation of sprinklers or smoke Accordingly, one of the central concerns of our takings detectors;just as an order granting third parties access to jurisprudence is"prevent[ing]the public from loading upon a marina, Kaiser Aetna v. United States, 444 U. S. 164 [>'^ one individual more than his just share of the burdens of (1979), is more troubling than an order requiring the F``' government." Monongahela Navigation Co. v. United placement of safety buoys in the marina. States, 148 U. S. 312, 325 (1893). We have, therefore, in In analyzing takings claims, courts have long recognized our takings law Ifrequently looked to the generality of a the difference between a regulation that targets one or two regulation of property. .. - - . parcels of land and a regulation that enforces a state-wide For example, in the case of so-called "developmental policy. See, e.g.,AA. Profiles, Inc. v:Ft. Lauderdale, 850 exactions," we have paid special attention to the risk that F. 2d 1483, 1488 (CAll 1988); Wheeler v. Pleasant Grove, particular landowners might "b[e] singled out to bear the 664 F. 2d 99, 100 (CA5 1981); Trustees Under Will of burden" of a broader problem not of his own making. Pomeroy v. Westlake, 357 So.2d 1299, 1304(La.App. 1978); Nollan, 483 U. S.,at 835,n. 4;see also Pennell v. San Jose, see also Burrows v.Keene, 121 N. H. 590,432 A. 2d 15, 21 y 485 U. S. 1,23(1988). Similarly,in distinguishing between (1981);Herman Glick Realty Co. v. St. Louis County, 545 _ the Kohler Act(at issue in Mahon)and the Subsidence Act S.W.2d 320,324-325(Mo.App. 1976);Huttig v.Richmond f. (at issue in Keystone),we found significant that the regula- Heights, 372 S. W. 2d 833, 842-843 (Mo. 1963). As one tory function of the latter was substantially broader. early court stated with regard to a waterfront regulation,If Unlike the Kohler Act,which simply transferred back to the such restraint were in fact imposed upon the estate of one surface owners certain rights that they had earlier sold to proprietor only, out of several estates on.the same line of the coal companies, the Subsidence Act affected all surface shore, .the objection would be much more formidable." owners—including the coal companies—equally. See Commonwealth v.Alger, 61 Mass. 53, 102 (1851). Keystone, 480 U. S., at 486. Perhaps the most familiar In considering Lucas'claim, the generality of the Beach- - application of this principle of generality arises in zoning front Management Act is significant. The Act does not cases: A diminution in value caused by a zoning regulation target particular landowners, but rather regulates the use is far less likely to constitute .a taking if it is part of a of the coastline of the entire State. See S. C. Code general and comprehensive land-use plan, see Euclid v. §48-39-10 (Supp. 1990). Indeed, South Carolina's Act is — Amber Realty Co., 272 U. S. 365 (1926); conversely, "spot best understood as part of a national effort to protect the zoning" is far more likely to constitute a taking, see Penn coastline, one initiated by the Federal Coastal Zone Man- Central, 438 U. S., at 132, and n. 28. . • . .. agement 'Act of 1972. - Pub. L. 92-583, 86 Stat.• 1280, The presumption that a permanent physical occupation, codified as amended at 16 U. S. C.§1451 et seq. Pursuant — no matter how slight, effects a taking is wholly consistent to the Federal Act, every coastal State has implemented with this principle. A physical taking entails a certain coastline regulations.' Moreover,the Act did not single out A amount of"singling out." Consistent with this principle, owners of undeveloped land. The Act also prohibited physical occupations by third parties are more likely to owners of developed land from rebuilding if their structures ---` effect takings than other physical occupations. • Thus, a were destroyed, see 1988 S. C. Acts 634 §3,10 and what is regulation requiring the installation of a junction box owned equally significant, from repairing erosion control devices, by a third party,Loretto v. Teleprompter Manhattan CATV such as seawalls, see S. C. Code §48-39-290(B)(2) (Supp. Corp., 458 U. S. 419 (1982), is more troubling than a 1990). In addition,in some situations,owners of developed - land were required to"renouris[h]the beach . . . on a yearly basis with an amount . . . of sand . . . not . . . less than one This principle of generality is well-rooted in our broader understand- and one-half times the yearly volume of sand lost due to ings of the Constitution as designed in part to control the"mischiefs of — faction." See The Federalist No. 10, p.43 (G. Wills ed. 1982) (J. erosion." 1988 S. C. Acts 634 §3, p. 5140.11 In short;the Madison). South Carolina Act imposed substantial burdens on owners An analogous concern arises in First Amendment law. There we have of developed and undeveloped land alike.'Z This generality recognized that an individual's rights are not violated when his religious indicates that the Act is not an effort to expropriate owners practices are prohibited under a neutral law of general applicability. For of undeveloped land. example, in Employment Division,Department of Human Resources of Admittedly, the economic impact of this regulation is Oregon v.Smith,494 U.S.872,879-880(1990),we observed: `[Our] decisions have consistently held that the right of free exercise dramatic and petitioner's investment-backed expectations does not relieve an individual of the obligation to comply with a'valid are substantial. Yet,if anything, the costs to and expecta- and neutral law of general applicability on the ground that the law tions of the owners of developed land are even greater: I proscribes (or prescribes) conduct that his religion prescribes (or doubt, however, that the cost to owners of developed land proscribes).' United States v. Lee, 455 U.S. 252, 263, n. 3 (1982) of renourishing the beach and allowing their seawalls to (STEvENS,J., concurring in judgment).... In Prince v.Massachusetts, 321 U.S. 158(194-4),we held that a mother could be prosecuted under deteriorate effects a taking. The costs imposed on the — the child labor laws for using her children to dispense literature in the streets, her religious motivation notwithstanding. We found no °See Zalkin, Shifting Sands and Shifting Doctrines: The Supreme constitutional infirmity in `excluding[these children] from doing there Court's Changing Takings Doctrine and South Carolina's Coastal Zone what no other children may do.' Id.,at 171. In Braunfeld v.Brown, 366 Statute, 79 Cal. L. Rev. 205, 216-217, nn.46-47 (1991) (collecting T U.S. 599 (1961) (plurality opinion), we upheld Sunday-closing laws statutes). against the claim that they burdened the religious practices of persons 16This provision was amended in 1990. See S.C.Code§48-39-290(3) whose religions compelled them to refrain from work on other days. In (Supp. 1990). Gillette v. United States, 401 U.S. 437, 461 (1971), we sustained theThis provision was amended in 1990; authority for renourishment military Selective Service System against the claim that it violated free was shifted to local governments. See S.C.Code§48-39-350(A}(Supp. exercise by conscripting persons who opposed a particular war on 1990). 1 religious grounds." i�In this regard,the Act more closely resembles the Subsidence Act in If such a neutral law of general applicability may severely burden Keystone than the Kohler Act in Pennsylvania Coal Co. v.Mahon, 260 constitutionally protected interests in liberty, a comparable burden on U.S.393(1922),and more closely resembles the general zoning scheme __ property owners should not be considered unreasonably onerous. in Euclid v.Amber Realty Co., 272 U.S. 365 (1926) than the specific See Levmore,Takings, Torts,and Special Interests, 77 Va. L. Rev. landmark designation in Penn Central Transportation Co. v.New York 1333, 1352-1354(1991). City, 438 U.S. 104(1978). 60 LW 4.862 The United States LAW WEEK 6-30-92 owners of undeveloped land, such as petitioner, differ from something about the scope of the uncertain concept of total these costs only in degree, not in kind. deprivation, even when it is barred from explicating total The impact of the ban on developmental uses must also deprivation directly. Thus, when the Court concludes that be viewed in light of the purposes of the Act. The legisla- the application of nuisance law provides an exception to the ture stated the purposes of the Act as "protect[ing], general rule that complete denial of economically beneficial preserv[ing], restor[ing] and enhancing] the beach/dune use of property amounts to a compensable taking,the Court system"of the State not only for recreational and ecological will be understood to suggest (if it does not assume) that purposes, but also to "protec[t] life and property." S. C. there are in fact circumstances in which state-law nuisance Code§48-39-260(1R a)(Supp. 1990). The State,with much abatement may amount to a denial of all beneficial land use _ science on its side, believes that the "beach/dune system as that concept is to be employed in our takings jurispru- [acts] as a buffer from high tides, storm surge, [and] dence under the Fifth and Fourteenth Amendments. The hurricanes." Ibid. This is a traditional and important nature of nuisance law,however,indicates that application exercise of the State's police power, as demonstrated by of a regulation defensible on grounds of nuisance prevention Hurricane Hugo,which in 1989,caused 29 deaths and more or abatement will quite probably not amount to a complete than S6 billion in property damage in South Carolina deprivation in fact. The nuisance enquiry focuses on alone.13 conduct,not on the character of the property on which that In view of all of these factors, even assuming that conduct is performed, see 4 Restatement (Second) of Torts petitioner's property was rendered valueless, the risk §821B (1979) (public nuisance); id., §822 (private nui- inherent in investments of the sort made by petitioner,the sance),and the remedies for such conduct usually leave the generality of the Act, and the compelling purpose motivat- property owner with other reasonable uses of his property, ing the South Carolina Legislature persuade me that the see W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser — Act did not effect a taking of petitioner's property. and Keeton on Law of Torts §90 (5th ed. 1984) (public Accordingly, I respectfully dissent. nuisances usually remedied by criminal prosecution or abatement),id.,§89(private nuisances usually remedied by damages,injunction or abatement);see also,e.g.,Mugler v. Statement of JUSTICE SOUPBR. Kansas, 123 U. S. 623, 668-669 (1887)(prohibition on use of property to manufacture intoxicating beverages"does not I would dismiss the writ of certiorari in this case as disturb the owner in the control or use of his property for having been granted improvidently. After briefing and lawful purposes,nor restrict his right to dispose of it,but is argument it is abundantly clear that an unreviewable only a declaration by the State that its use . . . for certain assumption on which this case comes to us is both question- forbidden purposes, is prejudicial to the public interests"); able as a conclusion of Fifth Amendment law and sufficient Hadacheck v.Sebastian,239 U.S.394,412(1915)(prohibi- to frustrate the Court's ability to render certain the legal tion on operation of brickyard did not prohibit extraction of premises on which its holding rests. clay from which bricks were produced). Indeed, it is The petition for review was granted on the assumption difficult to imagine property that can be used only to create that the state by regulation had deprived the owner of his a nuisance,such that its sole economic value must presup- _ entire economic interest in the subject property. Such was pose the right to occupy it for such seriously noxious the state trial court's conclusion, which the state supreme activity. court did not review. It is apparent now that in light of The upshot is that the issue of what constitutes a total our prior cases, see, e.g., Keystone Bituminous Coal Assn. deprivation is being addressed by indirection, and with _ v. DeBenedictis, 480 U. S. 470, 493-502 (1987);Andrus v. uncertain results, in the.Court's treatment of defenses to Allard,444 U. S. 51, 65-66(1979);Penn Central T ranspor• compensation claims. While the issue of what constitutes tation Corp. v. New York City, 438 U. S. 104, 130-131 total deprivation deserves the Court's attention,as does the (1978), the trial court's conclusion is highly questionable. relationship between nuisance abatement and such total While the respondent now wishes to contest the point, see deprivation, the Court should confront these matters Brief for Respondent 45-50, the Court is certainly right to directly. Because it can neither do so in this case,nor skip refuse to take up the issue, which is not fairly included over those preliminary issues and deal independently with within the question presented, and has received only the defenses to the Court's categorical compensation rule, the — most superficial and one-sided treatment before us. Court should dismiss the instant writ and await an oppor- Because the questionable conclusion of total deprivation tunity to face the total deprivation question squarely. cannot be reviewed,the Court is precluded from attempting Under these circumstances, I believe it proper for me to to clarify the concept of total (and, in the Court's view, vote to dismiss the writ, despite the Court's contrary — categorically compensable) taking on which it rests, a preference. See, e.g., Welsh v. Wisconsin, 466 U. S. 740, concept which the Court describes, see ante, at 11 n. 6, as 755 (1984) (Burger, C.J.); United States v. Shannon, 342 so uncertain under existing law as to have fostered incon- U. S. 288, 294 (1952)(Frankfurter, J.). sistent pronouncements by the Court itself. Because that _ concept is left uncertain,so is the significance of the excep- tions to the compensation requirement that the Court proceeds to recognize. This alone is enough to show that A. CAMDEN LEWIS, Columbia, S.C. (LEWIS, BABCOCK & there is little utility in attempting to deal with this case on HAWKINS, GERALD M. FINKEL, FINKEL, GOLDBERG, the merits. SHEFTMAN & ALTMAN, and DAVID J. BEDERMAN, on the briefs) for petitioner; C.C. HARNESS III, Charleston, S.C. (T. The imprudence of proceeding to the merits in spite of these unpromising circumstances is underscored by the fact TRAVIS MEDLOCK,S.C.Atty. Gen.,KENNETH P. WOODING- TON, Sr. Asst. Atty., and RICHARD J. LAZARUS, on the briefs) that, in doing so, the Court cannot help but assume for respondent. "Zallan, 79 Cal.L.Rev.,at 212-213. _ CITY OF CIIANBASSEN 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937-1900 • FAX (612) 937-5739 July 14, 1992 Mr. Allan Gray Eden Prairie City Engineer 7600 Executive Drive Eden Prairie, MN 55344 Dear Allan: Thanks for meeting with Charles Folch and me on July 7th relative to the Marsh Creek Golf Course proposal. I also would like to confirm what we had discussed. We raised a concern about the continuity of Lyman/Lake Riley Boulevard as it crosses the Eden Prairie city line. It was our understanding that based upon discussions that had taken place several years ago, that Lake Riley Boulevard was to be realigned to intersect with Dell Road. Based upon these discussions, Lyman/Lake Riley Boulevard east of Highway 101 was anticipated to be constructed as a four lane facility in Chanhassen. You outlined for us the fact that if the Marsh Creek Golf Course proposal goes forward, Lake Riley Boulevard in Eden Prairie would essentially remain on its current alignment. The only exception would be that it would incorporate a deviation around the park on the east side of the lake. You also confirmed for us that this street will retain its state aid designation and is likely to be maintained in satisfactory condition and may be improved in the future. As a result of these discussions, Charles and I agreed that Lyman/Lake Riley Boulevard east of Hwy. 101 in Chanhassen would likely only need to be upgraded as an improved two lane facility. Traffic being generated in Chanhassen alone does not warrant a four lane roadway and as a result of the Marsh Creek Golf Course proposal, there would be little or no traffic loading entering the road from Eden Prairie. The second concern we raised was relative to the quality of surface water discharges from the Marsh Creek Golf Course proposal into Lake Riley. As you aware, Chanhassen has been involved in developing a surface water management program for the past year and a half. We are already requiring all new developments to meet NURP standards and are looking into undertaking remedial projects where existing development is causing problems. We ask you to confirm that the Marsh Creek Golf Course project would be developed in a manner If t PRINTED ON RECYCLED PAPER Mr. Allan Gray July 13, 1992 Page 2 consistent with Best Management Practices and NURP standards. You indicated that Eden Prairie shares this concern and is proposing to apply these review criteria. We spoke of one other matter that was not related to this development. I outlined the Moon Valley proposal to mine clay on the site located in Chanhassen, adjacent to Eden Prairie on Pioneer Trail, and gave you a copy of their grading plans. Please feel free to give me a call with any concerns you might have regarding this request as soon as you have had a chance to review it. Thank you again for meeting with us. Sincerely, t:C aul Krauss, AICP Planning Director — PK:v pc: Charles Foich, City Engineer Planning Commission City Council — Roger Gustafson, Carver County Engineer Bill Engelhardt, Engelhardt and Associates Comprehensive Plan 17C-- (CC /S ,s"^ C• 1 River News from the Minnesota River Improvement Project Summer 1992 'There is a phenomenal resiliency in the mechanisms of the earth. A river or lake is almost never dead. If you give it the slightest chance by stopping pollutants from going into it, then nature usually comes back." - Rene Dubois, 1981 C.U.R.E. members rediscover the Minnesota River On a warm weekend in early May, members of C.U.R.E. (Clean up our River Environment) pushed off the banks of the Minnesota in their canoes and began a short odyssey down the river. Two day- long river observation trips were sponsored by C.U.R.E. in an effort to raise awareness among citizens about the river's scenic beauty and its value to local residents. On Saturday, May 2, members of the Montevideo chapter of C.U.R.E canoed the river between the Lac Qui Park Dam and Granite Falls. On Sunday, May 3, the Granite Falls chapter traveled the river between Granite Falls and the Upper Sioux Agency. Both groups of individuals were unani- mously positive about their experiences. "The river was described by many as a beautiful and exciting place" said Del Wehrspann of Montevideo. Some observers had the sense that they were "the only people on the river." One of the group's goals in organizing the trip was to make people more aware of what they have in the Minnesota River. Another was to make people more aware of threats to the resource. While _ an abundance of scenic views and wildlife were enjoyed by the participants, they also had an opportunity to see firsthand sources of pollution to the river. Clandestine dump sites, tile lines emptying into the river, trash, sedimentation, and stream bank erosion were some of the problems observed. As a result of C.U.R.E.'s observation trip, the National Guard has offered to provide 100 men and heavy equipment to clean up parts of the river in August. For more information on C.U.R.E.'s activities, contact the C.U.R.E. office at(612)269-2105. O Granite Falls schoolchildren tell'The Story of Our River" _ Sixth graders from the Granite Falls Elementary School were given a chance to express their feelings about the Minnesota River as part of a three-month-long"The Story of Our River"project, sponsored by the Blandin Foundation. This project, part of a major arts education initiative man- aged by Community Programs in the Arts (COIVSPAS), was intended to assist in the development of model projects for rural schools and communities in Minnesota. River Reach 2 The school project, begun in March of this year, had several goals,including the production of a play about the Minnesota River, development of a visual arts piece, and the writing of poems, stories and fantasies related to the river valley. The students used field trips, history lessons, guest speaker presentations, personal interviews, and other experiences to gather background materials and ideas for their productions. Final products from the project included a play based on the writings of students, a wallhanging with symbols of the river and Dakota culture, and several books of poems and other writings developed by the children. Approximately 40 community volun- teers were involved with the students as they worked on various aspects of the project. Community reaction to the student production of the river play and other activities was "very positive" according to community volunteer Cynthia Kuenzel. For example, nearly everyone who saw the play performed felt that it was "wonderful"and "extremely moving," she said. Kuenzel added that the children who were involved in the river project also enjoyed it immensely. "Some children felt changed by the experience," Kuenzel said. Through the experience, she felt that students were made more aware of the river's value and the need for all to pitch in to protect it. Kuenzel believes other communities could benefit from becoming involved with a project like this. She offered a bit of advice, however, to those who might take on a project like this. First, plan it out very well. Second, involve as many people as possible in planning so that you get ownership of the project throughout the community. Lastly, select a topic that everyone can feel a part of and that they can easily relate to. The Minnesota River proved to be such a subject. For more infor- mation on the Granite Falls project, please contact Cynthia Kuenzel at(612) 564 4622. 1 Some samples of the childrens' work follows: * River Ran-Up save the River By Corey Schuler, 6th Grade By Becca Kissner, 4th Grade Bert Raney Elementary School Bert Raney Elementary School Some pollution comes incognito Save the river! Its precious sand. It covers the river from head to feet, yo. Save the river! And this valley's land. Listen to me, I know what I'm saying. Save the river! It's for you. Ya better take notes while this rhyme is playing. Save the river! Make it new. Better do somethin' and somethin'fast. Save the river!All of it. Ya gotta do somethin' or this river won't last. Save the river! Every bit. I think about C.U.R.E. as the cure. Save the river! Please, oh, please I hope it'll help, but I'm not sure. Save the river! I'm on my knees. We gotta clean the river, get it outa our hair. Save the river!What did you say? We gotta clean it up if we really care. You'll save the river! Along with me? Do it for the animals, do it for us. You'll save the river? Oh, yippee! We must announce it and make a fuss. The river is Mother Nature's daughter. The river gives us our drinking water. I hope some people take this to heart. If they do, the river clean-up has a start. *Poems reprinted with permission from COMPAS River Reach 3 Mankato begins storm sewer stenciling program Mankato Department of Public Works has initiated a new program designed to raise public aware- ness and prevent pollution of the Minnesota River. The program combines a simple concept with a healthy dose of elbow grease. Manned with a stencil that reads,"Don't Dump—Drains to Stream,"and cans of spray paint, volunteers are hitting the pavement in Mankato. Their aim is to locate storm sewers in neighbor- - hoods throughout Mankato and to stencil all of them with this message by the end of this summer. The purpose of these efforts is to raise awareness among the general population regarding the fact that storm sewers are a direct pipeline to our rivers. Pollution in the form of oil and grease, salt, lawn chemicals, heavy metals, pet wastes, leaves and grass, paints, and other materials, enters storm sewers and then travels untreated directly to outfalls along rivers and streams. The end result can be seriously polluted streams, lakes and rivers. The Mankato Public Works Department has developed a brochure on the stenciling program, which includes information on the water quality problems associated with dumping in our storm sewers, and the procedures one should use for obtaining a stencil and using it on neighborhood storm drains. For more information on Mankato's storm drain stenciling program, contact Paul Baker, City of Mankato, Department of Public Works, (507) 387-8644. Minnesota River Citizens' Advisory Committee holds first meeting Members of the Minnesota River Citizens'Advisory Committee met for the first time in Chaska on May 21, 1992. This committee, convened by the Minnesota Pollution Control Agency, will prepare recommendations for state agencies, the legislature, and local government regarding what should be done to improve water quality in the river. The 30-member committee, consisting of represen- tatives of a wide variety of organizations and regions of the river basin, had an opportunity to meet each other and to share their reasons for wanting to be a part of this important committee. For many committee members, the Minnesota River has been a special resource to which they have remain committed over many years. Members spoke in positive and optimistic terms about the potential for improving the river and for making a difference as part of this group. The remainder of the first meeting dealt with logistical issues, as well as what could be expected at future meetings. The need for operating ground rules, a mission statement, and goals was dis- cussed and will be addressed at the next meeting. Citizens'Advisory Committee meetings will take place on a bi-monthly basis during the remaining portion of 1992 and on a monthly basis in 1993. We will attempt to regularly update "River Reach" readers on committee activities. For more information on the Citizens'Advisory Committee, please contact Lynne Kolze at(612) 297-3825. River Reach 4 SCCMR conference planning well underway This year's Minnesota River Conference, coordinated by the Sportsman's Coalition for a Clean Minnesota River(SCCMR) promises to provide something for everyone. There have been many additions to this year's conference. This year, for example, festivities will take place on the river in New Ulm, rather than in Flandrau State Park. Minnesota River Conference Coordinator Scott Sparlin, wants to use this year's conference to re-introduce citizens to the river environment and to remind them of all the river has to offer. Also new this year, a variety of contests will be held in conjunction with the conference. All con- test winners will be awarded prize money. The fishing contests, for example will offer prizes in excess of$2,500. This year's conference will be held on September 12 and 13th at Riverside Park in New Ulm. Admittance charge is $15 per person. Early registration would be greatly appreciated. Send inquiries and registrations to: Scott Sparlin, SCCMR, P.O. Box 488, New Ulm, MN 56073. Handle with Care guides available to interested citizens A new guide, called Handle With Care: Your Guide to Preventing Water Pollution is now available in limited quantities from the MPCA. The guide, developed by the Terrene Institute, is a colorful, fact-filled, and easy-to-read booklet which provides many useful tips on how individuals can pre- vent contaminated runoff from being generated around their homes. Included in the booklet is information on how all of us can reduce runoff from our properties, how to keep any runoff clean, and where to get additional information and advice on preventing pollu- tion. The guide provides tips on lawn and garden care, septic tank maintenance, use and disposal of pesticides, contouring and infiltration devices and permeable pavements. For a free copy of this guide please fill out the coupon and send it to Theresa Kohn, MPCA-INS, 520 Lafayette Road, St. Paul, NEC55155. I would like a copy of Handle with Care. . . . Please send a copy to: Name Address City State Zip River Reach 5 On the technical side So you want to do water quality monitoring? Greg Johnson, MPCA-Nonpoint Source Water quality monitoring is difficult business. Although it is very important in the characterization and evaluation of our water resources, it also takes a lot of planning, work, and even luck to obtain and analyze water samples that are representative of the conditions being monitored. Even this may not ensure that the data will result in quality information that can be used in decisionmaling - - - the ultimate purpose for conducting water quality monitoring. What needs to be done or considered when your board/client/association begins requiring water • quality information? Should you just go ahead and purchase the equipment and begin monitoring? This may seem to be the thing to do given the apparent ease in which data can be collected, however, the most difficult challenge is to collect water quality data that is useful in making tough resource management decisions. Water quality monitoring, therefore, should not be an end in itself. The key to effective monitoring is to do you homework first and to follow an information protocol. Much has been written which explains the importance of designing a monitoring plan, yet many people disregard this component of a monitoring program and jump right into the collection of water samples. Using an information protocol involves a process of asking and answering specific questions that are necessary in determining your water quality information goals and objectives. We will begin presenting an explanation of information protocols in the next issue of River Reach. If you would like a summary of this information before the next issue, please request it by writing to Greg Johnson, MPCA-NSS, 520 Lafayette Road, St. Paul, MN 55155. ❑ Is there someone else who may enjoy receiving River Reach? Please complete this coupon and sendto: MPCA, 520 Lafayette Road, St. Paul, MN 55155, Attn: Lynne Kolze Name Address City State Zip River Reach 6 River Reach is published quarterly by the Minnesota The Minnesota River Improvement Project is Pollution Control Agency's a multi-year effort devoted to improving and ' Water Quality Division.' protecting water quality,biological diversity and recreation in the Minnesota River basin. Editor Lynne Koize MPGA 520 T,afayette Road $t.Paul,MN 55155 (612)297-3825 Moving? Send present mailing label and new address to: 4<:;);s1 Minnesota Pollution Control Agency • 520 Lafayette Road , %'00" St. Paul, Minnesota 55155 - • RECEIVED fEsi trauss ' 4Lrector of Ptannitv.: JUL 1 6 1992 (... . i. of ChanLassea ` . CCitltfr trine �� C' i' Lasse'r.r MIRI{Eseta .e;5317 CITY v� l.r[i11�r,. SEl�i Mile:ti:itt:llttt ilkitl}t1!I -