1983 11 30
PLANNING COMMISSION MINUTES
REGULAR MEETING
NOVEMBER 30, 1983
e
Chairman Conrad called the meeting to order at 7:37 p.m.
Members Present
Jim Thompson, Tom Merz, Susan Albee, Ladd Conrad, Bill Ryan and
Mike Thompson. (Howard Noziska arrived at 8:15 p.m.)
Members Absent
Nooe
Staff Present
Bob Waibel, City Planner and Vicki Churchill, Secretary.
Rep1at and Rezoning Request, Three Single Family Detached Lots,
1140 Pleasant View Road, Mrs. Arda Barnett, Public Hearing.
Public Present
Arda Barnett
Dan and Linda Johnson
1140 Pleasant View Road
1140 Pleasant View Road
e
Waibel stated that this request was for rezoning the property
from R-1A, Agricultural Residence District to R-1, Single Family
Residence District and to rep1at the area into three single
family lots. He stated that staff found the rep1at to be an
improvement to the existing arrangement of platted lots by con-
solidating many of the unbui1dab1e lots of record into the pro-
posed Lot 3 and Outlot A. He noted that the property was
assessed four sewer and water units, three of which were for new
possible building sites on the property and did advise the appli-
cant that this will need to be spread against the newly created
lots. He stated that he also advised the applicant that
appropriate access easement arrangements should be made.
B. Ryan moved, seconded by J. Thompson to close the public
hearing, all voted in favor and the motion carried.
M. Thompson moved, seconded by B. Ryan that the Planning
Commission recommends approval of rezoning from R-1A,
Agricultural Residence District to R-1, Single Family Residence
District and the preliminary plat for the property as shown on
the Preliminary Plat of Barnett's First Addition, marked Official
Copy Planning Case 83-14 Subdivision, dated received October 17,
1983 with the condition that the applicant enter into a platting
agreement acknowledging that the extra sewer and water unit
assessment will be spread against the property that has benefited
from the Carver Beach Public Improvement project.
4It All voted in favor and the motion carried.
Planning Commission Minutes
November 30, 1983
Page 2
e
Conditional Use Permit Request for Construction of a Car Wash,
7901 Great Plains Boulevard, Gary L. Brown, Public Hearing.
Public Present
Gary L. Brown
Al Klingelhutz
Franklin & Myrna Kurvers
7901 Great Plains Boulevard
8601 Great Plains Boulevard
7220 Chanhassen Road
e
Waibel stated that this proposal was to construct a three bay car
wash. He stated that the Chanhassen HRA presently owns this pro-
perty and consider the sale of property to the proprietor of the
adjacent Standard Oil Station, Gary Brown. He stated that access
to the car wash is designed via West 79th Street to the north and
the traffic will exit the site via an easement abutting the south
property line. He stated that the proposal includes a con-
solidation of the existing northerly access to the Standard
Service Station with the proposed egress for the car wash. This
access is aligned on the 15 foot permanent sanitary sewer ease-
ment. He recommended that an indemnity agreement be required
for the location of this access. The alignment regress/egress
alignment allows for potential future access to land lying east of
the service station. He also added that the site plan indicates
that the sale of the property will involve the dedication of an
additional 14 foot right-of-way along Highway 101 to allow for as
much flexibility as possible in the development of a downtown
entryway boulevard.
S. Albee: Do you (Gary Brown) have any problem with the 14 foot
dedication?
Gary Brown: No.
B. Ryan: You show an area, an existing drainage sewer, what does
that drain?
Gary Brown: A little bit of rain that would runoff the hill
behind us, the Kurver's property.
B. Ryan: Are you accounting for that in your blocked out
grading?
Gary Brown: I think it's going to improve it greatly. Now I
have a constant run of mud in front of my business, which of
course cars run through and track allover the place. When I get
through with this, I will have asphalt in there and we won't have
that any more.
e
B. Ryan: Is there a storm sewer on 101?
Bob Waibel: No, I think it's all pretty much open drainage. I
don't think there is any underground.
Planning Commission Minutes
November 30, 1983
Page 3
e
Gary Brown: If you are familiar at all with the Standard Station
now, where we back our parts up to, there is a swale made out of
gravel in there, it's kind of a natural deal. Then I filled that
with crushed rock last year hopefully so the water wouldn't stand
there anymore. I think it's drawn out of proportion, a swale you
think of something that's this wide and two feet deep which really
it's a foot wide and maybe 4 inches deep.
B. Ryan: I would just like to make sure that we have drainage
through there, if it's a serious swale then we should consider a
small culvert.
Gary Brown: As far as the access water running from the cars
being washed, that's going to be super minimal because of the
fact that in those type of car washes there is more air then
there is water and there would be very little dripping. The
water that is used inside the building will stay inside the
building. So as far as adding more water, it just won't happen.
T. Merz: What is the setback, do they have one in there?
B. Waibel: That area is all Central Business District and there
are no setbacks prescribed in that district.
e
J. Thompson: In talking in the past about Hanus and problems
associated with that, it seems to me I remember that there was a
parking problem on 79th Street associated with that building. Is
that still a problem?
B. Waibel: I understand that it has been resolved.
Gary Brown: There is no parking on 79th Street, there are signs
up all the way along there on both sides.
J. Thompson: Is that being obeyed?
Gary Brown: yes, outside of an occasional 18 wheeler sitting along
there.
J. Thompson: If there was an 18 wheeler there is that going to
affect the entrance?
Gary Brown: It isn't going to affect my portion of it.
-
Frank Kurvers: My name is Frank Kurvers and I happen to own the
property next to Mr. Brown and I guess you were talking about the
swale and it is kind of a problem because I paid $820 for a storm
sewer and the water out in my property goes through this swale
that he is talking about. But in the process throughout the years
he filled his property so that it pushed the water to mine. Now
he is talking about putting a swale in there so there is definitely
a problem within that swale area.
Planning Commission Minutes
November 30, 1983
Page 4
e
M. Thompson: Would you have Parcel B, is that it?
Frank Kurvers: Yes I own the parcel to the east of his property.
Gary Brown: So what you are saying Frank is, there is water that
sits between my existing place and your property?
Frank Kurvers: Right.
Gary Brown: How could that be?
Frank Kurvers: Because you filled it with crushed rock and you
pushed it over on my property.
Gary Brown: I know that but yours comes down from a hill, your
property is all on a side hill.
Frank Kurvers: That's right, my property eventually should be
filled in matching your heighth at that elevation of your pro-
~r~.
Gary Brown: So you would have to take out 25 feet of dirt.
e
Frank Kurvers: If you put in this swale, I don't know what your
elevations are I haven't looked at your print, but my property
someday will be built on and it will be lowered. You are using a
15 foot easement which, in the City, is there any building sites
that a house could be built on that size lot?
B. Waibel: We don't compare residential to commercial or
industrial construction. Commercial and industrial come in such
a variety of scales and sizes that we don't have any minimum lot
sizes.
Frank Kurvers: Well you look at that property throughout the
years since that station has been in existence and yes he has
plenty of room for all of his equipment because he has been using
my property and he has been using the City property for all his
storage of vehicles. Does that mean if he puts a car wash there
then he is going to use my property for the storage? There just
isn't enough land there for what he is trying to do. There is 14
feet that the City says and they originally bought that property
with the intention of widening 101. O.k. now the HRA is trying
to sell it to somebody and say 'well we don't need that any more'
and what part of that land are you going to build on, as far as
setbacks there is every piece of property that has been built on
has a setback, I don't care if your 0 lot lines or whatever your
talking about, every piece of land has setbacks and you set that
property back the way it should be, you'll need more parking. I
don't care what you talk about, that isn't enough land.
e
B. Waibel: The reason the property was probably purchased by the
Planning Commission Minutes
November 30, 1983
Page 5
e
HRA was the fact that there would only be a commercial entity
such as this that could be proposed for the property that would
reasonably fit on it. Any other commercial type of development
would probably not fit. This just happen to be a reasonable plan
and based upon that the HRA is considering the sale of the pro-
perty to Mr. Brown for the construction of the car wash.
Gary Brown: We spent alot of time putting this thing together,
measuring it and looking at it and working with other people who
own car washes and as far as parking goes there is not going to
be a problem with back up of cars or anything like that.
Absolutely none.
L. Conrad: Frank, I'm just trying to understand the parking
problem, tell me more about the parking in a car wash.
Frank Kurvers: Well have you ever been to a car wash that there
is a certain amount of stacking. If you're busy and that's what
you want to build is a business that's busy. O.k. where are you
going to stack those cars?
Gary Brown: Behind the bays Frank.
e
Frank Kurvers: There isn't enough land there, I have a plan here
that the City drew and everyone of them shows that there's
parking on my property.
Gary Brown: There is room for two cars behind each bay.
Frank Kurvers: I'm not arguing with you, I'm just explaining to
the Planning Commission, I am just feeding the facts of what has
been taking place.
L. Conrad: Bob, where will the stacking be, towards 79th?
B. Waibel: Yes, that's the stacking area waiting to go in
through the car wash.
L. Conrad: You can stack 2 cars each bay.
B. Waibel: 46 feet should be plenty of room to stack 2 cars for
each bay plus the car inside. That would be a total of 6 cars
waiting.
Gary Brown: If there is 6 cars waiting, that means there are
three inside being washed at an average of 41 minutes per car.
e
Frank Kurvers: If you view the property the way its been in the
past years, there is cars and trucks and everything parked on my
land and the City land. Now if you put another business in there,
that means more cars parked on my land because you don't have
Planning Commission Minutes
November 30, 1983
~ Page 6
enough room. You're trying to develop the City with some type of
setback, some type of green space and here you're stacking
another building right on top of the highway just to sell a piece
of land. It don't even sound reasonable, it doesn't sound like
good planning. All it does is push something in and get a buiding
on there.
B. Waibel: The Planning commission has been working on revising
its ordinances for every piece of property in the City including
this particular area called CBD. It's been quite disquieting to
staff to have to work with CBD ordinance all these years.
L. Conrad: I thought we had just approved a rough draft of cer-
tain setbacks in the CBD.
B. Waibel: Right. There will be some, but right now the ordi-
nance does not include any setback requirements for the CBD
District.
Frank Kurvers: As far you can look anyplace, there is more
stacking room then on this particular plan that is put before
you for any car wash that has been built in the last ten years.
~
Gary Brown: Frank, how many years have you been in the car wash
business? I don't mean to be rude about this, I just want to ask
because I have been washing cars for twelve years.
Frank Kurvers: I'm not going to argue with you, I'm talking and
explaining something to the Planning Commission. What I am
stating is facts.
Gary Brown: I have gone through this very thoroughly with Scott
Martin. We measured it, we surveyed it and we've gone according
to the CBD District. I worked very closely with him and the City
and we have done everything that has been asked of us and more, I
think. As far as stacking goes, there's virtually not going to
be a problem with it at all. You've got more than enough room
coming in and you've more than enough room coming out. As far as
that lot goes, I don't know what other kind of business you could
ever put on that lot outside of something like that.
Frank Kurvers: I thought that the HRA was going to build a road
right through it. Well we were figuring on buying that other
piece of land in front and then we would have enough land to
build on. Then they could have a parcel that would be reasonable
and look have way decent to the community. If you just stack in
something just because you got a lot and the City owns it. That
ain't the way to plan.
Ie
M. Thompson: How long has the HRA owned that property?
Planning Commission Minutes
November 30, 1983
~ Page 7
B. Waibel: About two years.
M. Thompson: Who did they buy it from?
B. Waibel: Michael Sorenson.
B. Waibel: There was at one time a transportation study done on
the concept of bringing West 79th Street to the south. That was
never officially acted upon.
M. Thompson: Well, I know from personal experience, recently
that a piece of property that one of my associates is associated
with in Savage and Burnsville where they tried to put in a similar
operation. What you're saying is correct, that the requirements
on stacking were much greater than this plan. Whether that is
necessary or not I don't know.
L. Conrad: Tell me what is going to happen in the future Bob,
let's say that we have got room for six cars.
T. Merz: If you are worried about stacking, you could slide the
building down another twenty feet. If you talk about cars coming
on your property, now he has got curbs and gutters so that he
can't encroach on your property.
~
Frank Kurvers: I have two main concerns. Number one is the
drainage. I disagree with what is there as far as drainage, I
paid $800-$900 for a storm sewer to block the drainage way. That
is the only way my property can be drained. There is no way to
go down 79th Street. The majority of it has to go through there.
T. Merz: Does our Engineer feel there is adeqate drainage?
B. Waibel: He has reviewed this plan and found no problems with
it.
B. Ryan: There are two things I am questioning. Are you
crossing the drainage ditch on 79th Street?
Gary Brown: No.
B. Ryan: You certainly have contours here that show us a poten-
tial for a pocket.
L. Conrad: Frank, this has nothing to do with the issue at hand
but just for our purposes. Do you have any idea how you are
going to develop your parcel? Any direction as to when and what?
e
Frank Kurvers: You never know. As far as the backup elevation,
well he is on the back, if he uses all his property at a certain
elevation that means that I can't fill my out to that elevation.
Planning Commission Minutes
November 30, 1983
~ Page 8
If you let him back up all the way to my property that means that
I'm going to have to stay back a certain amount of feet. Does
that mean if I develop mine, I can go right up next to this.
M. Thompson: What is the setback there?
Frank Kurvers: Well they are talking tonight that there are no
setbacks. I don't agree with that, in the CBD it's not true.
Where is the CBD plan, read it off and there is setbacks there.
In the overall zoning ordinance it says you have 150 feet for any
type of business that is off of a street. It says right here in
Section 10.04. Now what are we doing, throwing everything out?
All of sudden we abide by it one day the next day we throw them
all out.
Gary Brown: Excuse me gentlemen, I don't think this relevent to
this.
L. Conrad: Bob you are telling us that in past standards, CBD
does not have any setback requirements is that right?
B. Waibel: That is correct.
~ L. Conrad: What is Frank reading from?
Frank Kurvers: I am reading from the Official Zoning Ordinance
of the City of Chanhassen. That has setbacks and it says you
have to have 150 feet of land for a site such as a C-3 zoning,
which that is and you have to setback twenty-five feet on the
side and the parcel has to be 20,000 square feet of land. Now
we are talking about half that size and then some. So we are
throwing everything out as far as what is in the manual.
Myrna Kurvers: That isn't even 10,000 feet.
B. Waibel: This property is zoned CBD. It states that every use
within the CBD District shall be a conditional use i.e. we have a
public hearing on the issues. It is a site plan but on top of
that it is a conditional use and each proposal is looked upon its
individual performance or merits.
L. Conrad: The ratio of impervious surface to total area is what
Bob?
B. Waibel: I don't have one on this particular plan. It is in
the CBD, we can encourage the 30/70 but I have not bothered to
calculate it because it is in a CBD.
~
L. Conrad: In the future we are talking 70%.
B. Waibel: In the future, in the coming ordinance we are talking
about 70 to 30%.
Planning Commission Minutes
November 30, 1983
Page 9
e
M. Thompson: What is parcel B zoned?
B. Waibel: Parcel B is CBD also. Everything out to 101 and 5 is
zoned CBD, including Apple valley and the drive-in. It goes all
the way out to the other end of West 79th street beyond the
driving range.
Frank Kurvers: Just the building that you approved over there,
part of the restaurant, does that look like this plan? The
Planning Commission and City approved that one, does that look
anywhere like this plan? So I mean what are we doing. Everyone
of those has a setback, they have green space, they have all
kinds of green space.
Gary Brown: We've got setbacks and green space, Frank.
Frank Kurvers: On this plan there is not even a third as much.
Gary Brown: They have more property.
e
Frank Kurvers: That's true. That's what I am saying, the pro-
perty is not large enough for that type of business. You need
not only the coming out of the station, the people wiping the
cars off, they do all kinds of things. They need room to park
those cars.
L. Conrad: Any other points that you want to bring up?
Frank Kurvers: I just want to stress the zoning ordinance is in
effect and this is the City zoning ordinance and there are regu-
lations here and you look under the CBD there are regulations
there to. I would like the Planning Commission review the CBD
ordinance.
Myrna Kurvers: There is a, the Standard Station already has a
car wash too. It seems a little ridiculous to put two car washes
right next to each other.
B. Waibel: The Planning Commission does not get into regulating
the market placing.
Ted Coey: Just as an unbiased citizen, I can't see why we
wouldn't want to encourage business in Chanhassen. I can't
understand why the hell we are arguing about it.
S. Albee moved, seconded by M. Thompson to close the public
hearing. All voted in favor and the motion carried.
e
S. Albee moved, seconded by T. Merz that the Planning Commission
recommends approval of a conditional use permit for the construc-
tion of a car wash as proposed on the Conditional Use Permit Site
Planning Commission Minutes
November 30, 1983
~ Page 10
Plan for Planning Case 83-8 Conditional Use Permit dated received
November 9, 1983 with the condition that the applicant enter into
an indemnity agreement with the City holding the City harmless
for any costs in restoring the concrete curb or bituminous hard
surface roadways constructed over the sanitary sewer easements
should repair of said sewer line ever be necessary and with
the condition that the concern for drainage is looked at again
before going to the City Council.
Vote in favori J. Thompson, T. Merz, S. Albee, B. Ryan and H.
Noziska. Nayei L. Conrad and M. Thompson. Motion carried.
Conrad and M. Thompson felt that the drainage issue is not clear
nor is the side yard setback and would like to see something a
little more reflective of the neighboring properties.
Subdivision Variance Request, Three Single Family Detached
Parcels, 1381 Lake Lucy Road, Public Hearing.
Public Present
~
Ted Coey
Dick & Barbara Ortenblad
Al Klingelhutz
Jim Curry
Franklin Kurvers
Jim & Doris Mielke
Warren E. Phillips
Merrill R. Steller
1381 Lake Lucy Road
1351 Lake Lucy Road
8601 Great Plains Blvd.
4817 Upper Terrace, Edina, MN 55435
7220 Chanhassen Road
1645 Lake Lucy Road
1571 Lake Lucy Road
1931 Crestview Drive
Waibel stated that the applicant is requesting variances to sub-
divide the property into three single family detached unsewered
lots. He stated that staff finds that without the basic prelimi-
nary plat information and contour information no staff comments or
recommendations can be made on the proposal.
The general public comments were that they are in favor of this
proposal however, the neighbors noted that there is some question
on the property lines of all of their lots, i.e. each time a sur-
veyor comes out the boundary lines are different.
J. Thompson moved, seconded by Albee to close the public hearing.
All voted in favor and the motion carried.
~
J. Thompson moved, seconded by Noziska to recommend approval of
the variances subdividing the property into three single family
residential lots as shown on the Boundary Survey,
Sathre-Bergquist, Inc. Job #1650-1 marked Official Copy in
Planning Case 83-15 Subdivision. vote in favor: J. Thompson,
Merz, Conrad, Noziska, and M. Thompson. Nay: Albee and Ryan.
Motion carried.
e
Planning Commission Minutes
November 30, 1983
Page 11
Albee and Ryan stated that would like to see a topographical for
sanitary sewer.
The Planning Commission found no problem with individual
accesses. They commended the applicant for having 5 acre parcels
and did state that they would really like the applicant to have a
preliminary plat with contour elevations done for the City
Council.
Public Hearing Draft of the Wetland Overlay Ordinance.
Public Present
e
Joe and Eileen Boyer
Eleanor Kalkes
Al Klingelhutz
Ted Coey
Franklin and Myrna Kurvers
Merrill R. Steller
Jane Totino
Dena A. Wetzel
Niki Cunningham
Sandra Cunningham
Fred Oelschlager
John and Beverly Ryan
Mary Palmer
Candy Takkunen
Georgette Sosin
Mel Kurvers
John Danielson
Alex Hartmann
H. Ray and Maryane Brenden
3630 virginia Ave., Deephaven, MN
260 Westview Drive, st. Paul, MN
8601 Great Plains Blvd.
1381 Lake Lucy Road
7220 Chanhassen Road
1931 Crestview Drive
6631 Horseshoe Curve
6260 Ridge Road
6665 Horseshoe Curve
6665 Horseshoe Curve
7410 Chanhassen Road
6685 Horseshoe Curve
7337 Frontier Trail
1291 Bluff Creek Drive
7400 Chanhassen Road
7240 Chanhassen Road
6607 Horseshoe Curve
6687 Horseshoe Curve
6730 Galpin Blvd.
The Environmental Protection Committee was also present to help
answer any questions.
Court MacFarlane: I have written a letter basically addressing
the overview on this. I think I will simply read it so I don't
miss anything. The Environmental Protection Committee was in
charge of writing a comprehensive environmental ordinance. The
wetland protection ordinance is just one part of a whole zoning
ordinance. This ordinance can be summed up as community aware-
ness of the value of wetland and the environment as it was at
this time. As a brief outline, to help those of you who have not
had the opportunity as we on the Committee have had over the past
to learn about wetlands. The following is some of the guidelines
to wetlands.
-
1. Flood control
2. Wildlife habitat
3. Recreation and open space
Planning Commission Minutes
November 30, 1983
Page 12
-
4. Pollution control and particularly the nutrient stripping.
without such removal nutrients would accummulate
in lakes creating eutrophication.
5. Erosion and sentiment control
6. Water resources
I wrote this letter before I read today's paper. Today in the
Editorial Section of the Minneapolis paper, I don't know if they
planned this for our benefit, but there is an article on the bot-
tom liThe Nation's Wetlands are Disappearing and No One Seems to
Care. II Their timing was great. I picked out a couple of
paragraphs in there and I would just like to read them now. It
addresses nutrient stripping. The author of this was Robert
Eberhardt from Stockton, California. lilt's marsh, a few miles
from the airport, major pollutants and drog and Paddle Creek
transacts the marsh. Readings were taken before the creek
overflowed its banks into the marsh and 2 to 5 hours later when
the water returned to the creek, chemical and bacterialogical
samples indicated the marsh will significantly improve water
quality by increasing the oxygen content and reducing nutrient
loads. II There is a second one here.
-
IIA Ducks Unlimited funded project at the University of Saskatchewan
has shown that cattails, common marsh plants, have insatible
appetites for raw sewage. The roots produce an antibiotic
substance that would hack and kill people bacteria. The root
system also absorbs dangerous chemicals in domestic sewage.1I
What we have already done to our wetland resources can be summed
up in the following. liThe U.S. had at one time 127 million acres
of fresh water wetlands. More than one half of the wetlands in
the lower 48 states have been destroyed.1I This is a calculation
that I made. This is greater than the total acreage of the
entire state of Minnesota. Quality and acres of wetlands
represent 23% of land in Minnesota. Minnesota is second in the
loss of wetlands only to the state of Indiana. Again I would
like to quote from the article I read today. If you take into
account all the wetlands including salt marshes, the wetland
inventory started out at 215 million acres and we have 95 million
acres left. What has been destroyed and lost virtually forever,
is equal to greater than twice the size of the total acres in
Minnesota. These are staggering figures and I feel that all
remaining wetlands deserve protection. This is the basic
underline for writing this ordinance. Please keep in mind when
considering the impact of this ordinance, that we are not
restricting what is currently being done to the wetlands in our
community.
e
e
e
e
Planning Commission Minutes
November 30, 1983
Page 13
Jim Curry: I have owned land here in Chanhassen for 15 years. I
would like to say your raw motivation in this is very good and
commendable. I would just want to make some general comments. I
think the difficulty is in definition. Like everybody knows what
a lake is. A wetland, if you asked everyone in this room 'what's
a wetland?' you would probably have a different definition for
every person. The state experience of course is they tried to
manage all of it and they found it impossible so they went to 2!
acre sites and larger only. Another interesting thing and I can
guess why is that in the seven county metro area there are
125-150 cities and less than 5, according to the D.N.R., have
adopted separate wetland rulings and ordinances. For instance,
Minnetonka has none. That to me is kind of interesting because
Minnetonka has as much wetland as any city in the seven county
area I would guess. I would think that you would need a broad
variance program in this because the definition is going be dif-
ficult. When is a cattail a wetland? In having a lot of varian-
ces my thought, I realize you are much further down the road than
this and I don't mean to be just alot of trouble, but the
planning process to me would take this into account. Like Lake
Susan South, which we expect to be in here with some very exciting
plans after the first of the year, there is 196 acres there. In
the planning process you deal back and forth on where the park
should be and how much the setback. After all there is a 75 foot
setback and for me is about! mile. What is a ! mile times 75
feet. That's an awful lot of land to be paying taxes on over the
years. Yet like I say the motivations are very noble. A 50 foot
setback I think would be very adequate. The planning process
should with staff, Planning Commission and Council I would think
take care of this. I'm afraid you are asking for alot of bickering
in variances, because people's idea of what it is is going to
differ. You can ask a panel of seven people and you are going to
get seven ideas. The other thing that is tricky and I don't know
quite how to deal with this except that very few of the other areas
in the seven county metro area have tried it. That is that were
are getting an overlapping layer of governmental regulation and
permits. lIve been through this, I was up north and we have a lake
spot up above Brainerd and where the D.N.R. told me what I wanted
to do with a wetland is fine. The Corps of Engineers came in and
said you can't do that. So we went through the public hearing pro-
cess and I finally, I was very sure I was right and I was proven
right by public hearing. I asked one of the State of Minnesota
people who was on the inside how much it cost the federal govern-
ment to do this big study and hearing process and it was $200,000.
To me that is very irritating to the public to go through permit
processes and have one say yes and one say no. That is one of the
hazards I hope you think alot about. What happens to builders is
if they see to many road blocks they throw up their hands and they
go build somewhere else. I know right now the postion of Chan is
to get affordable housing and do it right, but sometimes in our
zeal we can make it very tricky. The real basic problem here
Planning Commission Minutes
November 30, 1983
Page 14
e
that is frustrating I suppose is back when I was a boy which is
now 55 years ago there were 135 million people in this country of
ours. Today there is 220 million. The problem is people. We
have to have what's feasible, economic, possible, the all ameri-
can dream like Al calls it and that is owning your own single
family home I guess. Yet somewhere in the middle there we have
to have common sense as well. Wetlands yes, protect them yes. I
don't shoot ducks, I like to eat them when somebody else shoots
them. If you make it too restrictive I think you are apt to drive
people away and that is not what your purpose is. Maybe I'm
sounding like Grandpa Curry but I just have these thoughts and
wanted to share them with you. I would hope the Planning process
could do this. I come in and deal with Bob and we go back and
forth and we figure up a plan. That's the way the average city in
the seven county metro area has done it. As soon as you get into a
too rigid definition system, I'm afraid there will be an awful lot
of bickering and public hearings and people saying that's what it
says and somebody else says no it doesn't because a wetland is a
vague thing. Thank you for the chance to speak to you.
e
Chairman Conrad: We appreciate your comments and I can only
react to one. We don't want to discourage development around
here, what we want to do is tell the developers we want to give
them a guideline. Developers get real nervous when they don't
know what the restrictions are and what they can and can't do.
The wetlands is one of the things we are working on. We are
looking at all of the ordinances right now because they are out-
dated and a lot of them just simply don't give guidelines, they
don't tell the developer anything. When you don't have your
guidelines, then you've got us here saying well we don't know.
Whoever got to us last with a proposal, that's the way we might
ply. So we are really trying, our attempt is to make it easier
for developers to work out here and not to penalize. In my pre-
ception back to this is to preserve some of the things that make
it a special community and really in the long run increase the
property values for the total community.
Al Klingelhutz: I guess if anyone would say that Al Klingelhutz
is not in favor of preserving the wetlands, if I was in the right
mood I would probably punch them in the nose. I guess what con-
cerns me about the ordinance is these wetlands are owned by
people in Chanhassen, in the State of Minnesota. Jim bought his
land 15 years ago, I bought mine 35 years ago, my dad bought his
50 years before that and my grandfather bought it from Abe
Lincoln by settling there for six years and homesteading and
living on it and he obtained 80 acres of land. I guess since the
day my grandfather owned that land, he paid taxes on 120 acres.
On that farm down there, there is possibly according to the ordi-
nance probably 15 acres of canary grass that has been filled.
According to that ordinance there is very little I can do with
e
Planning Commission Minutes
November 30, 1983
Page 15
e
that as far as converting it into a park, a baseball field or
anything like that because it's got canary grass growing on it.
The main thing I'm getting at is we land owners own this land.
We paid so much an acre for it and we've kept those wetlands
all these years. Today according to this ordinance, if we want
to develop that land, we have to give up something we own without
just compensation. To me that's taking property right away which
our constitution protects us 100%. Density transfer would be a
sort of compensation. Park and recreation fees on building per-
mits on the land would be another sort of compensation but if we
want to preserve these wetlands and want the land owner to carry
the total cost of it, there is going to be one big battle on your
hands. There is going to have to be some just compensation to
that land owner who has owned that land all these years. To give
it up to the public and say here it is we want our water resources
kept up, we want it as open space, we want it for our wildlife
and I agree with everyone of those things. I am an avid hunter,
I like the outdoors. I can go 0ut and sit in the woods without a
gun and listen to the birds, watch the deer, pheasants and
squirrels. I don't want to see them all gone. To take it
without just compensation to me is totally wrong.
e
Chairman Conrad: Court, can you respond.
Court MacFarlane: I don't think that the City is proposing on
taking these from the landowners. There is just compensation
from the density transfer and tax credits. There is also
available landowners that have wetlands, possible tax credits
both through the state and the county. There is a federal
program and a state program both that offer tax credits for pre-
serving wetlands.
Al Klingelhutz: The tax credit is a lessening of taxes on the
land but it doesn't pay you anything for the value of that land.
If I still want I can take a tax credit on it. Once I do not
own it, I don't get any more tax credit.
Court MacFarlane: No there is a program for that. I checked it
out. There is one through the federal and through the state.
It's a water bank program and it is available to landowners who
have wetlands.
Frank Kurvers: I would like to clarify that. Right here I have a
copy of a recent law. The law states that in 1983 the
Legislature amended the law to read "Wetlands shall not be
included woody swamps containing shrubs or trees, wet meadows,
meandered water, streams, rivers, and flood plains or river
bottoms." In addition to this change, the statute also implies
that any wetlands which fall within the following broad cate-
gories are no longer exempt and subject to the wetlands credit:
e
- land enrolled in state or federal water bank program
Planning Commission Minutes
November 30, 1983
Page 16
e
- land designated as protected water or protected wetlands by
the Department of Natural Resources
- wetlands to which the state or federal government holds
easements
Court MacFarlane: That is not what I heard. There recently is,
a week ago I talked to the state, people that regulate the
program and it is still in existence and which you go through to
receive tax credits.
Dick Vogel: I think the land that Court is talking about has to
be able to be drained. They are giving you a credit if you don't
drain it. The wetland can't be drained to receive a credit.
e
Court MacFarlane: I don't think there is any idea of taking it
by the wetlands by the public. They are still there to be
enjoyed by whoever owns them. We are only restricting what can and
can't be done on them. I don't think the restrictions are any
more restrictive than what is currently being done or practiced.
We are merely putting it into words. I would like to state one
other thing. In regard to the subtax, that came basically from
the Shoreland Management Ordinance which calls for 75 foot set-
backs from waters and as far as not knowing what wetlands are
there is a Comprehensive Wetlands Classification Map which is
being used and which classifies the wetlands in the City.
Frank Kurvers: If you take the half that I don't own any more
and I want to develop that property for lakeshore lots, I cannot
even put a dock out there for that individual that would own that
property. Now, he said you are not taking anything away from me.
I have to disagree, you are taking something away from me.
Chairman Conrad: Court, can you respond?
Court MacFarlane: Well, not knowing the property I don't know
how I can respond. If it's open water that he has that borders
his property, it would be a matter of Surface Water Usage
Ordinance.
Frank Kurvers ?: Why don't we go down this thing, we are just
shooting off the calk. Let's go through this thing so we
understand each phase of it and what it does for an individual.
There is permitted uses in this ordinance, it says you can't have
a dock.
e
Jim Thompson: I would like to say one thing concerning the com-
ment Al made on taxes. I've sat in on a number of City Council
meetings in which taxes or assessments against properties were
discussed. I remember very vividly some of the reduction in pro-
perty taxes because of the landowners concern for the property
being over valued. The properties were reduced in coordination
with the amount of wetlands on the property. So it is a give and
take process all the time.
e
e
e
Planning Commission Minutes
November 30, 1983
Page 17
Al Klingelhutz: I was surprised that the City lowered it that
much. Those same people had to go over to the County. They were
put right back up to exactly what they were. So there was no
lowering of the taxes on those properties. You can check with
the County on that.
Michael Thompson: That's a problem with the County not us.
Al Klingelhutz: That's a problem of the County but the indivi-
dual landowner is still paying those taxes.
Rick Murray: As a developer, I've been discussing these issues
for about a year and a half so some of them are pretty old to me.
I'll make a couple of comments on some of the comments that have
already been made but mostly I've gotten my lines down now to
about two or three that are still thorns in my side. Just com-
pensation I guess is always a problem. One of the reasons or one
of my attitudes approaching this committee was that in light of
what we were trying to preserve and I can see very good reasons
for trying to preserve wetlands, especially wetlands which have a
great impact on the flood plains and the watershed districts. I
also wanted to keep an eye on the landowners because all of these
wetlands. Well a good portion of these wetlands that we are
talking about, are not public waters they are individually owned.
I guess the way property values are going, they way property
values have gone in the last 50 years, what they paid originally
for them may very well be irrelevant. They are worth something.
That brings me to my first pet peeve. We, in this ordinance,
look at wetlands that are adjacent to open water. We say that if
those wetlands are a type 2 or above, which is more restrictive
than the state standards, that there are certain things that you
will not be able to do with those wetlands. One of which was
already mentioned, you can't put a dock across it. The state
would allow I think 50% reduction in what it was to provide what
they call reasonable riparian access to public waters. This
ordinance allows none. I don't care what you talk about, when
you start talking about a piece of property that is adjacent to
public water that everyone owns, I don't think you can give
enough density transfer or I don't think you can give enough tax
credit when you just took the gentlemen's lakeshore away from
him without any reasonable access. Now the conflict I have is
that if the public happened to own that, if the City of
Chanhassen happened to own that same parcel, and it might be a
type 2 or it might be meadow grass, there might not be any
visible water there, but if the City of Chanhassen had that they
would put a dock across that. But the guy that owns that can't
put a dock across that. I find that being a little bit, two sets
of standards and I don't like that.
Tom Merz: Yes there is two sets of standards. Yet what we
really are trying to do here, I'm sure we can find specific
items, but what we are really talking about, do we have to pre-
serve the wetlands? We can find specific items in here and spend
all night talking about them.
\
Planning Commission Minues
November 30, 1983
Page 18
e
Rick Murray: I still have a couple more comments, that was one
of them. There is alot of double standards in dealing with the
government, I deal with the government all the time. The second
is the problem we have about there is no variance at all in this
ordinance. There seems to be absolutely no flexibility in what
may be reasonable in the light of the Council members or in the
light of what a gentleman wants to do with his property. There
is absolutely no way a variance. I think that is a gap that
should be addressed and probably changed, so that there is some
method of somebody proving that something is reasonable to do to
his own property. The way it reads now, there is none. Density
transfer I guess has always been my peeve. I think that that is
a way of addressing just compensation. It has come a long ways
from where it started. From my point of view, I could see it
coming alot further.
e
Deanne Wetzel: My name is Deanne Wetzel and I live on Christmas
Lake and this is my friend Niki Cunningham, she lives on Lotus
Lake. We are here tonight in support of the wetlands ordinance.
Both Niki and I have been lucky enough to grow up on a lake and
spend our summers sailing, skiing, fishing and boating. I really
would like to be able to continue to enjoy this opportunity and I
would like to see future generations enjoying this too because I
think it is really special. Not only have we been able to enjoy
the lakes but we've had the chance to observe the wildlife and
its the wetlands that allows the presence of the ducks, geese,
deer and the other wildlife. We are concerned about our future
and we hope we will be able to preserve this special environment
which is so important to us.
Al Klingelhutz: I commend the girl for coming forward tonight.
I think that my daughters and sons would say the same thing. My
concern is, Frank pointed it out before. He has a considerable
amount of lakeshore on his property and according to the wetland
map, there is about 900 feet of that in grass. If we pass this
ordinance those people that live on those lots abutting that
wetland could not enjoy the lake like she does, because they
couldn't put a dock out there, they couldn't put a boat out
there, they couldn't use it. I think that is what we are saying
is unfair about this ordinance. She made a good point there and
I'm real happy that she has that privilege but I hate to take
that privilege away from other people that have an opportunity to
buy a lakeshore lot because there is a little strip of wetland
there that they can't cross that wetland and use a boat, go
swimming and things like that.
? I can say the first time Chanhassen took it
upon themselves to annex a great deal of land I don't know just
how much. When was that?
e
Bob Waibel: In 1967 the City converted to township.
Planning Commission Minutes
November 30, 1983
Page 19
e
? O.k., how much land did you actually take, how
many acres or how many miles?
Bob Waibel: Well, it came up with a total of 23t square miles.
O.k., I happen to be in one little forgotten
southwestern corner just a very few feet from Chaska. I think
when you people take land like that, 23 square miles, you have
an obligation to everyone in that area whether they live close to
the town or 5 miles away or what. Now I don't know, from looking
at that how much of that 23 square miles is actually wetland, how
many acres are you talking about in the whole city of Chanhassen?
Do you have any idea? Somebody said that we lost so much acreage
in Minnesota over the years. Do you have any idea how many acres
we are talking about?
Bob Waibel: There is no records that show what the wetlands were
years ago in Chanhassen, however, those on the map shown there I
think can be tallied up fairly close.
e
? I think what I am trying to say is that every
time you people make a move, I just feel a little more squeezed
in between two rocks. Between all kinds of new ordinances and
all kinds of new ideas which I probably do agree with, except
they step right on top of my toes. There is nothing we can do.
I'm afraid to live any longer for fear I won't be able to walk.
I'm serious. We can't develop the land. Just recently you
passed an ordinance for 2t acres from 5 acres, maybe we will be
lucky to do something with that. When you annex land, you have
an obligation to everybody that you took over and I want to be
considered as just as important as the people on this committee
who may not be near any wetlands at all. I think that some of my
property will be considered wetland, though I prefer to say low
land. Please consider all of us.
e
Frank Kurvers: I would like to make a point as far as recently,
in October of last year the City of Eden prairie went over all
their ordinances and they have a flood plain ordinance which they
had many things included in this. They adopted a shore land manage-
ment ordinance, like the City of Chanhassen did except they had
modifications on all the adoptions. In this particular ordinance
regularly 200 feet back of a wetland, now Eden prairie doesn't
regulate. When this lady mentioned how much land is involved on
our map, I'll tell you what Eden prairie would have been involved
in if they would have accepted the flood plain the federal govern-
ment passed. If they would have accepted that fully and if they
had accepted the Shoreland Management Ordinance fully, 40% of Eden
prairie would never have been developed. Now looking at the City
of Chanhassen which has much more lowland, down in the river bot-
tom, much more lakes, I would say we are at least 60% of that land
Planning Commission Minutes
November 30, 1983
Page 20
e
e
looking at that map that will never be developed if that map
is adopted. I would say that is conservative estimate if Eden
prairie said it was 40% because look at Eden prairie they have
maybe 4 or 5 lakes and look what we have with those river bottoms.
We've already given up so much acres to the wetlands and that's
good, there is nothing wrong with that but they adopted in their
flood plain along with some of the things that these people are
talking wetland, they are combining and they are reasonable.
This here is a cross section of Ordinance 47 which covers a
wetplain which should be broadened. There are many things that
should be out of there. This ordinance covers everything now.
As far as the wetland classifications they start off with the
D.N.R. covered 3, 4 and on up. This ordinance covers 2. Now
there is no definition and no explaining how this land is all
safe. The D.N.R. people say no it is not all safe. But in this
particular ordinance if covers all of it to save. Well it's not
to save, I agree should take land but you have to try to protect
them in the classification they are in. Not throw them in one
big basket and protect them all. That's what this ordinance is.
It covers everything and as far as variances which Rick men-
tioned, you have to have variances. You have to be able to work
within an ordinance. This doesn't have any varinances. If you
go to D.N.R. and you want a permit for wetland they don't review
that. In here you would never have that chance to go there.
That's not fair because if you improve a wetland and I think
we've grown in the years with the educational system that I'm
sure we can do things better now then we could 100 years ago.
But why in this ordinance we go back 100 years? I think all of
us know, we have all gained knowledge.
,e
Kathy Schwartz: Nobody is more for wetlands than I am because we
fought the Derrick project just across the street from me for two
years and our neighborhood spend $20,000 bringing out facts,
hiring experts, making reports, I have been in contact with every
agency there is that would involve wetlands. It seems to me that
tonight the issue is fairness. Everybody here loves what
wetlands bring and nobody wants to ruin the lakes, but I'm not for
being unfair to these property owners either as much as I want
the wetlands. I just would like somebody who has been working on
this to speak to the issue of fairness. I would not be favor in
taking away Kurvers investments for 100 years or whatever he's
had that in his family. If you just think yourself. I live on
lakeshore and if you told me tonight that I could no longer have
the value of my property I would flip out. But that doesn't mean
that Kurvers don't want wetlands either, I think it's just fair-
ness. That's what gets all of us so riled. Taxes. My taxes
went up 25% one year, 100% the next year and then I see other
people's go down that's what bothers me is the fairness. If we
could just have you address that I know you have had alot of
people on this committee. Could you talk about that and how you
are going to figure that in. I'm not going to be in favor of
wiping out some people just to save wetlands.
Planning Commission Minutes
November 30, 1983
Page 21
e
Court MacFarlane: We do have an area in here called Wetland
Credit. I will just read from this portion. I would like to say
one thing first in regard to the idea that there is no variance
portion in here, there is a Wetland Alteration Permit procedure
written into the ordinance that I would think would answer the
question regarding variances.
Bob Waibel: Since this is an overlay ordinance there is a sec-
tion of the Zoning Ordinance that deals with variances and also
non-conforming uses. This ordinance does not include non-
conforming uses because it is already in the Zoning Ordinance.
I would like to consult the City Attorney about that but I
believe the variance section from the Zoning Ordinance would
carryover to this as people have a problem with a permit, if it
was denied for some reason or another they could appeal it.
Rick Murray: If for some reason they didn't qualify to apply for
a permit they could apply for a variance.
Bob Waibel: If someone doesn't agree with the classification of
their type of wetland on the map, they always have the oppor-
tunity to do that.
e
Henry Sosin: The wetland permit is in a sense a variance, it's
not called a variance and it hasn't got the same chapter head.
But in essence that's what it is. The reason it was called
something different was that the people on the Committee thought
that it was important enough to point out the value of the
wetland by putting the term 'wetland' in the term you are
applying for. You are applying for a wetland alteration permit.
Rick Murray: There are some things that are specifically denied
you, your use of on your property, which I guess if there was a
substantial hardship you should be able to get a variance for it.
Henry Sosin: Rick, if I didn't know better, I would have thought
you weren't even on the Committee for the last year and a half.
Rick Murray: I'm just putting that into the record.
Mel Kurvers: My name is Mel Kurvers and what you are saying
there is there is a variance Frank had mentioned about this dock.
To put a dock on there, is that a variance.
Rick Murray: No that's prohibited.
Henry Sosin: You are talking about your specific piece of land
right now I presume, You've got a wetland behind a ton of land
which includes lakeshore and a beach.
e
Mel Kurvers: You still have to get to the lake.
Planning Commission Minutes
November 30, 1983
Page 22
e
Henry Sosin:
ground, sand
you can walk
property.
Mel Kurvers: But that could be over off onto the side. If I
would sell the property to someone directly, then I do not have
that part. Why couldn't I go across that, if it was, according
to this ordiance here, if it was public then that would be per-
fectly alright. Just like the young lady said she would like to
keep on using the lake and I think the private owner would like
to use the lake but public could and private couldn't. That
whole area you can walk on a certain part of it but that may not
always end up that way.
That lakeshore that you've got, that's got solid
beach is connected to your land by something that
right over. You pointed that out to me on your own
Henry Sosin:
What do you mean it may not end up that way?
Mel Kurvers: Well, if the lot is sold off and I bought that lot
and I wanted to get to that lake. Then I would have to go
through that area that you referred to. On the other side is the
wetland and I couldn't get to the lake.
e
Henry Sosin: There is nothing that prohibits you from walking on
your wetland from going in a wetland, for doing anything you want
in that wetland except this particular instance that you are
talking about would prevent you from building a dock from your
house of somewhere back on your property across the wetland to
the piece of ground you've got your life dock. In your par-
ticular instance you probably would not have difficulty putting a
dock into the lake.
Mel Kurvers: I guess the point is on this ordinance how would
you get to that. You say that you can walk.
Henry Sosin: Yes, you can crop in some wetlands.
e
Jim Thompson: In fact sometimes it is desirable that you do.
Henry Sosin: Let me answer a little bit more about the idea of
fairness. We've had a lot of comments about taking. No one is
taking the land. What we are attempting to do is to apply some
proper utilization of this kind of resource. First of all, no
one is taking the property. There are obvious land use restric-
tions that go with this kind of an ordinance. The same way there
are land use restrictions on lake lots, you can't build 75 feet
and some lakes you can't build, you have 150 foot setbacks, some
of them 50, but those are governmentally controlled rules which
apply for public good. This occurs in parks, in schools, it
occurs in every zoning area. We have a resource which is only
currently becoming known for its true values. Not just for
ducks, not just for flood control, not just for beauty. There
are alot of things that wetlands are good for. People talk about
Planning Commission Minutes
November 30, 1983
Page 23
e
e
taxation. The County Assessor, if he does his job correctly,
assesses this kind of land at about t of what prime agricultural
land is suppose to be assessed at or 20%. For people who
purchase land, especially someone who is going to crop it, or
especially someone who buys land with the idea of developing it,
if they've got a deep wetland or land samples which show you 20
feet of mud or whatever about that particular wetland makes it
undesirable to build or unpractical to build you are not going to
pay the landowner. The landowner himself does not have any
intrinsic value that the other prime agricultural or
buildable/developable land has. In addition to that in this
ordinance, in areas which are not sewered there is to be no spe-
cial assessments against that particular kind of land. Even
though we didn't talk about this in the ordinance, we were
told that it is not to be placed in a zoning ordinance. There
were specific recommendations about people who have already paid
assessments in sewered areas where there might be some compen-
sation for those people in the future because of the restrictive
use of their land. In terms of fairness, specifically about the
one issue that you brought up about the Kurvers land on the lake
shore. I would guess that must be 30 acres or so. Only a small
part of that lakeshore, actually very little of the shore itself,
but only a small part of that land is wetland. I would imagine
that if that's going to be developed, and I assume you are
talking about economic problems, if that's going to be developed
I would assume you are going to be there with P.U.D. or some such
thing. There is no reason to think that if two lots, if you are
making your lots the usually size along the lake, if two lots or
the ones that abut that wetland there is no reason to believe
that you couldn't put a dock away from the wetland, preserve the
wetland and have two families use it. There are many ways in
which riparian rights can be assured and still preserve the
wetland.
Mel Kurvers: That's probably true, but if two people buy pro-
perty they would like to have a dock of their own. They would
want it on their own property. They wouldn't want it on your
property.
Kathy Schwartz: Are you saying one whole piece of property is
all wetlands on the shoreland?
Mel Kurvers: No. The way I read in here, you could not do
anything to the wetland, you couldn't walk across it, you
couldn't cut it.
Henry Sosin: The restriction is that the ordinance wouldn't want
you to build a dock into that wetland to get to the lake. You
can walk across it.
e
e
e
Ie
Planning Commission Minutes
November 30, 1983
Page 24
Rick Murray: My real question was, is how much does it hurt to
have a pedestal down every 8 to 10 feet or whatever you do on a
seasonal dock. How much damage is that? How detrimental is that?
Henry Sosin: I don't think you are preserving the riparian right
by that.
Rick Murray: Let's say that the 30 acres didn't have any dry
land on it and he had a 15 foot stretch of wetlands, weeds between
the open water and dry shore. I can think of a lot of cases
like that around Chanhassen.
Merrill Steller: My name is Merrill Steller and we have some
property on the north shore of Lake Lucy. I just looked at that
and all of the property that we own on the lakeshore is class A.
I am completely cut off from the lake. Fair? I don't think so.
Jim Thompson: What do you mean by completely cut off?
Merrill Steller: All the property along the lake is class A.
We can't get to the lake.
?
Merrill, do you have a dock going through that
area?
Merrill Steller: No I don't. But I should have access to the
lake.
?
Can you walk through that area to get to the
lake?
Merrill Steller: I don't now, but if we develop the property I
would want that possibility.
Richard Vogel: There has been some talk of variances, now I
would just like to ask on page 5 "Prohibited Uses in Class A
Wetlands", number 7 is privately owned permanent or seasonal
docks. Now where does this variance come in that would apply to
this?
Bob Waibel: The variance would not apply to that. State law
does not allow variance for uses.
Richard Vogel: Then what it says here would be there would be
no privately owned permanent or seasonal docks.
Bob Waibel: First of all, the City Attorney would have to verify
that the variance provision would take over in this ordinance in
the case like we have a permit procedure, and whether a variance
procedure from the Zoning Ordinance would carryover to this
ordinance. That is not clarified at this point.
Planning Commission Minutes
November 30, 1983
Page 25
e
Richard Vogel: I think what people here are saying is once this
ordinance is passed and then there is no variance, that's it
you're done.
Bob Waibel: There is no use variance. Variances cannot be
applied to these items.
Richard Vogel: This is the concern of the people here.
Steller's case I would think that would mean he is done.
wrong?
In Mr.
Or am I
? Why must we be that much more restrictive, we
aren't destroying the wetlands by putting a dock over it. The
wetland is still there.
Court MacFarlane: I think the Surface Water Usage Ordinance even
restricts the lengths of docks in the City of Chanhassen.
Bob Waibel: A reach of four foot depth of water or 50 feet
whichever is greater, a 50 foot maximum length.
Kathy Schwartz: For this man, since his entire frontage is all
wetlands, couldn't we have someplace in there where we have
exceptions like some small percent of his wetlands can be
destroyed or have a floating dock over it? Do we have provisions
for bending in this?
e
Chairman Conrad: Did your committee consider that?
Court MacFarlane: We talked about it alot. I will say this
though, the ordinance in its final form did receive a unanimous
vote. There were various compromises that came out of our
meetings.
? When we come to the Council meeting, it would
be very important Bob Waibel, for you to find out if there is a
way or not for a variance. You can see what that means here.
Bob Waibel: I will have to ask the Attorney about the various
provisions of the ordinance. As far as the uses, there no
variance by state law. So whatever gets passed in this ordi-
nance, that's law.
Al Klingelhutz: Well that's what we were asking about before.
e
Bob Waibel: Actually I don't see any need for variances because
a variance first of all wouldn't apply to the uses. In the case
of the permit system there is language in here that says the
applicant has the ability to demonstrate to the City Council the
plans, data, the boundary of the wetland, and to the extent that
they plan to do the work and to the extent that they conform with
the standards in this ordinance for like filling, dredging, or
storm water discharge. There is some latitude there as far as
what the applicant can provide the City Council.
Planning Commission Minutes
November 30, 1983
~ Page 26
Rick Murray: I don't think anybody is arguing about that. What
we are arguing about is cases where it absolutely positively takes
away everyones, and in most cases I think, it is the lakeshore.
Richard Vogel: Where you've got a wetland that's in question,
what you are saying Bob might take effect but with Mr. Steller's
land where it is all red, I don't see in this ordinance how you
say he could go like with a building permit or whatever this
ordinance does allow.
Bob Waibel: It would be very restrictive if he is going to alter
the wetland. If he was going to put in a dock, as in the past as
it would today there would be no variance. The ordinance would
have to be amended to allow for that.
Al Klingelhutz: If you wanted to put in a dock there would be
absolutely no variance to get out to the lakeshore that he owns.
Jim Thompson: How many feet would you have to go out across to
get to open water?
Merrill Steller: I'm not real sure about that. There is one part
where, maybe 20 feet, the rest of it would be substantially more
than that.
~
Jim Thompson: 50 or 100, 200?
Merrill Steller: I would say 50 feet or less.
Jim Curry: This is the core of the crown, is the difficulty in
definition. In everybody's eyes it's a little different. I know
the problem, we want to do something good. After it's done I
don't know what it will be for sure. I guess that's my fear.
Richard Vogel: I would just like to add one comment to that
about taxes. When it was said that our problem was with the County
and not with the City. The City can lower all your taxes or take
them away when they know the County is going to come right back
and raise them to where they were. I guess the City can take
all your taxes away and Carver County is going to come right back
and put them there. So it isn't just a County problem it's a City
problem too.
Myrna Kurvers: I would just like to concur with Mr. Curry and
Mr. Murray. This is a booklet called "Common Legal Questions
Pertaining to the Use of Flood Plains and Wetlands". The
question is what is non-constitutional taking? The fifth amend-
ment of the Constitution of the United States declares "nor shall
~
e
e
e
Planning Commission Minutes
November 30, 1983
Page 27
private property be taken for public use without just
compensation." Then it goes on to state if the land was taken
for a park or road you would definitely be justly paid for it.
But it goes on "A harder question arises where the public does
not seek to use private land but imposes regulations which effec-
tively curtail owners uses". Has the public taken the value of
this land? This is the taking question. I am a heavy tax payer
in Chanhassen and am willing to pay taxes for all these people's
wetlands or whatever you have taken away from them because you
have to give them just compensation. One other quick comment. I
noticed a whole lot of faces up there when my husband said 200
feet back and he said which is like 60%. Well if you can't do
anything for 200 feet back from the wetlands you're talking about
60 %.
Bob Waibel: The 200 feet sets up an area where there would be
different lot sizes.
Myrna Kurvers: But it is still curtail.
Frank Kurvers: This was written by William Hart, who is our
Secretary of Interior and he was a Supreme Court Judge, and he
wrote "Descendants, Descendants", saying there was no right to
pass a zoning initiative to restrict rights. The state has no
ownership rights for privately held lake and rivershore shore-
land. The government must pay landowners when zoning changes
permit use of land. These are legal questions and the Interior
Secretary before he became secretary he spoke his legal opinions
among all the other justices and it was a 4 to 3 vote that you
can't do that. Our land has been assessed ever since the taxes
were assessed against it at 100% on all of our land. There is no
tax credit for wetlands, it's been assessed at 100%. On the
lakeshore it's been assessed at between $600 and $800 per foot.
This takes at least 900 of our shoreline that we don't have the
same use as the rest of it. In dollars that's $600,000 to
$800,000. That's just our problem. Look at the economic value
of the City and what that takes away in the future, this land
let's protect it but let's give them compensation for it. We've
got to give them compensation for it. Take the P.U.D. which is,
the D.N.R. has a definition of a P.U.D. We restrict in our sur-
face ordinance that 100 foot lots can have a dock. In the D.N.R.
for P.U.D. you can put in a dock with 75 feet. The transfer is
25%, total 25%. In this there is no 25%, there is not a clause
in there which catch's that so you don't have the full benefit
which the D.N.R. has in their regulations. They are always one
beyond what every other agency, the state, the federal govern-
ment, the Corps of Engineers, the watershed people and what you
are doing is really saying is 'hey, people living in Chanhassen,
open up your billfolds you're going to have to pay'. If you
don't make some modifications within this ordinance and a good
place to start would be to review Eden prairie's. Eden prairie
Planning Commission Minutes
November 30, 1983
Page 28
-
has it all combined and Eden prairie is a tri-league city and
it's growing and why is it growing, because they are doing things
right. We could go on forever and restrict and restrict and you
can't do this, you can't do that, and we are going to sit here
and our taxes are going to do nothing but go up and up and up
because you've got to pay for the municipal services.
Tom Merz: I hate to think that my time is donated up here and
like these people who have worked the last two years in coming up
with something that we are trying to improve. We all moved out
here for a specific reason. We are trying to maintain our
environment. In the last 20 years I've been out here we've seen
our lakes deteriorate 20-40% and our wildlife and it's continuing
to deteriorate. I guess I resent that we are taking away from
that. We are all involved in this thing and we're providing for
the City. To me if you don't make provisions like this, we will
have a Lake Calhoun here. We will see something that is not
swimmable, we'll see habitat that's completely gone. I think we
are all in this thing together and I'm not here to take away
something. It is important to do some planning for the future,
that's why we are here. If you don't take some of this stuff
into consideration, in the future we will all be sitting here
saying 'my god we let it go'. We are involved.
e
Jim Thompson: I would like to point out something too. In the
last three years I've been doing a lake study of the clarity of
Lake Minnewashta for the Environmental Protection Committee. The
lake has decreased from 13 feet down to 7 feet in the last 3
years in clarity of the water. I think it's in the value to keep
that lake at 13 feet is much greater to the homeowner at 13 feet
rather than 3 feet or less like Lake Lucy and some of the other
lakes are. Lake Riley has the clarity of less than one foot
during the summer time.
Rick Murray: What does that on Lake Minnewashta? Certainly no
wetlands have been filled around Lake Minnewashta in the last
three years.
Jim Thompson: A lot of phosphate fertilizers have been put
into the lake.
Court MacFarlane: Wetlands filter out the nutrients.
Frank Kurvers: The people that are there are still putting
their fertilizer and everything else in there, what has the
wetlands got to do with this?
-
Court MacFarlane: That's one of the reasons for this ordinance
is to try and educate people as to what uses can and should not
be done.
Planning Commission Minutes
November 30, 1983
e Page 29
Jim Thompson: How important is it to you to have a lake that's
clear?
Jim Curry: It's very important. Up at the lake up north you can
drop a dime in 13 feet of water and see the bottom. I agree with
everything you say. It's just that I don't know if stopping him
from having a dock is the way to go.
Jim Thompson: The main thing I am hearing is what is just
compensation? That is something that when the property owner
comes in for a variance, you present your facts to the Planning
Commission they make a recommendation on those facts to the City
Council, you come to the City Council you present your facts
again. They take our recommendation and what they hear and then
they make a decision. If you don't like the the decision, you go
back to the City Council and say' I don't agree with what you
say', or you go to court.
Al Klingelhutz: I don't think we should prepare ordinances that
the City can't defend.
Jim Curry: It's really getting to be a first cousin to a park,
but we don't treat it like a park.
e
Susan Albee: Back to your opening comment this evening, with the
basic problem does come down to the fact that we have more people
than we used to and you were referring to a situation if I recall
in Rogers. There will come a point in time with the population
growth as its going that Rogers will be faced with the very same
problem. When you get more people you get more restrictions.
Hopefully what you are trying to do is to preserve and at the
same time respect. At best I would find it very difficult to sit
down and write an ordinance that would please everyone. It would
be impossible. There are probably going to be amendments to this
ordinance as well as changes. You have to walk before you learn
how to run. We have to start somewhere. Basically that's what
we're all trying to do and have been trying to do to the best of
our ability. Hopefully something very good will come out of this
for all of us.
Al Klingelhutz: That's what public hearings are for. You want
to get the input from all of the people of Chanhassen and not
from a small minority.
e
Fred Oelschlager: I don't want to get punched in the nose by AI.
I am in favor of preserving wetlands. I am paying the same
amount of taxes as Mr. Kurver I'm sure. I scares me a little bit
in what he is saying. We have been fighting lake usage and boats
and docks on Lotus Lake for 15 to 20 years. I've lived on the
lake 9 years now. When we have been fighting these docks about
putting them on the lake, now Frank is saying he wants to put
docks out on your property. Now I know you want to sell that
Planning Commission Minutes
November 30, 1983
_ Page 30
-
-
property, I understand that. I am sure later on, maybe not now,
but I agree with you, I would feel the same way. I think there
is a way we can get around this by some type of compensation.
Maybe I shouldn't ask this personal question. This is just for
general information. Is that property bought out as lots
already?
Frank Kurvers: That shouldn't have any difference on what we are
talking about.
Fred Oselschlager: But I'm just saying why not back off the
front part of the property and keep your, you've always said you
didn't want the docks or the beach. And as being a concerned
neighbor, you have been fighting docks and boats for so many
years and now we're kind of flipping the coin on the other side.
Frank Kurvers: Well I own the property. I may agree with all
your principals but you are still taking the basic right from me.
Al Klingelhutz: When I read the 5% density transfer for pre-
serving a wetland, it struck me as not very just. When those
lands or acres that you are going to keep open and you only want
to transfer 5% of the density and someone has 100 acres of good
land and you look at 2! or 3 units per acres, you could put 3000
units on it. If somebody has 100 acres of land that is 50%
wetland and you get a 5% density transfer, you give an additional
25 units on that. You get 150 units out of the good 50 acres,
you end up with 175 units. But you've got just as much open
space as that guy that has 100 acres of good land. That's why it
seems to me that even 25% density transfer is not enough. If we
want to find a place where our children will live, I think a
planned unit development leaving that much land open should
warrant anywhere from 75-100% density credit. That would be an
area where our children could afford to live. One of the reasons
for it is that you're concentrating all your city services, all
your utilities, all your roads, all your development in a much
smaller area and those lots could be sold for $5000-$7500 .
cheaper. When you look at it from that perspective the overall
density would not be any greater than 100 acres of good land.
Yet you could be benefiting people. With high interest rates
today and the costs of housing to help more industrial, to help
our downtown develop. We could have some affordable housing
that people could qualify for mortgages. Today for an
$85,000-$90,000 home the couple has to have a $40,000 combined
income. Those people working in those factories haven't got
that. Our moto in Chanhassen is we want a good community, where
people can live, they can work and they can play and enjoy the
outdoors. I think this is one way we could do it.
Frank Kurvers: I've got a comment on the drainage. I disagree
with that phase. You're taking good land and building another
pond on the good land and you let that run through the wetland
Planning Commission Minutes
November 30, 1983
~ Page 31
into a lake. I disagree with that. That takes away land.
Anytime you take good land and build another pond to control it
and alot of times you are controlling neighbors water. What you
are saying in that ordinance is that certain landowners should
bear that responsibility to take care of all the neighbors water.
that area should be looked at.
Court MacFarlane: I don't know if you have seen the addendum
sheet here but there is a 100% density credit allowed for any
water storage.
Frank Kurvers: The D.N.R. think that is where the water should
go through is the wetland not build another pond to take care of
it and then filter that, then run it in a wetland, then run it
into the lake.
Henry Sosin: the water should run through wetland, Frank. You
should not muck our wetland to make it a retention basin.
Frank Kurvers: I'm not talking about mucking out a wetland, I'm
talking about building another reservior that runs into, if you
want to muck out, then runs into the lake.
~
Henry Sosin: This ordinance says that you shouldn't use a
wetland for a retention or sedimentation basin. You should use
the wetland wisely by putting your sedimentation trap, your basin
upland to that and then let the water perculate through the
wetland.
Frank Kurvers: And everybody else that owns a piece of property
at the present time can run directly in the lake. We as other
owners that want to develop property should protect all the water
and everything that drains in. That applies to people that are
on the lakes at the present time too.
e
? Just two comments that I would like to make. I
think we are all pretty familiar with the Derrick problem. In
fact that's where we discussed wetlands and started to learn what
wetlands were and I think Frank, you were very much in on this.
When we started to learn about wetlands. You wanted to talk
about the sedimentation problem, that is the perfect example of
what it is Hank, we are trying to explain. When the construction
site takes place, when all the earth is being moved, rather than
having it leaking down into a wetland and filling it up with dirt
that there has to have some presettling time before. The big
public hearing, which many of you were present, was a discussion
just about that. About having that retention pond upland outside
of the wetland so that it isn't destroyed. That is what they are
talking about in the ordinance. I remember about seven phone
calls from you personally, worrying about the new wetland that is
less than two acres, maybe even an acre. A very important little
Planning Commission Minutes
November 30, 1983
Page 32
e
wetland, if you remember in Bloomberg's Addition and how con-
cerned both of you were about the fact that it might be filled in
and that the water coming across from Eden prairie and from your
property to ours would go directly into Lotus Lake. This was
something of great concern to you only about a year and a half
ago. Am I correct?
Frank Kurvers: I still am. But that is a different type of
wetland.
? It is true that it is a different type of wetland
but its function is exactly the same as many of the other
wetlands that are in this ordinance. Nothing has changed except
that now you are the owner of a property and your concern, and
justifiably concerned, but keep in mind that we are talking about
a huge area of Chanhassen. Much of it is farm land. Much of it
has absolutely no wetlands in it where development can take place
very peaceably, there is no problem. We are talking about the
fragile sensitive areas that are left. Even though I have spoken
out and you know I am in favor of this protection, I have to
reiterate it again because we have to look at the greater picture
and not only the small pieces.
e
Frank Kurvers: As far as the setback of your house on Lotus Lake
is probably closer than any other house that has been built in
the last ten years. People that have been here three years are
now telling us how we've done everything wrong in the City for
hundreds of years. Now they want to move houses back further as
long as they have their little chalet then everybody else should
move those back further.
Kathy Schwartz: Would it be a real problem to the wetland if we
allowed an extra dock on the property to the lake?
Court MacFarlane: I think it would be determined by the type of
wetland over which you are crossing. The more activity in the
wetland the less likely you can maintain the aquatic vegetation.
J. Thompson moved, seconded by M. Thompson to close the public
hearing. All voted in favor and the motion carried.
The general issue/argument with this ordinance was "fair
compensation" for people with wetlands. People want them pro-
tected but still feel the compensation would be unfair.
The Planning Commission noted that the two major points were:
e
1. Fair compensation
2. Variances and exceptions
They felt that wetlands need to be protected and this ordinance
was a good start to the issue.
Planning commission Minutes
November 30, 1983
~ Page 33
Tom Merz moved, seconded by M. Thompson to recommend the City
Council adopt the Wetland Overlay Ordinance as proposed with the
addendum, recommendations and comments incorporated into it as
noted in the Memorandum from Bob Waibel dated November 30, 1983
and that the City Council address if compensation is fair or not
and what to do about the dock situation. All voted in favor and
the motion carried.
Approval of Minutes
J. Thompson moved, seconded by L. Conrad to approve the November
9, 1983 minutes as written. All voted in favor and the motion
carried.
Adjournment
J. Thompson moved, seconded by Merz to adjourn the meeting. All
voted in favor and the motion carried.
Meeting adjourned at 11:32 p.m.
e
e