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PC Minutes 6-20-06 Planning Commission Meeting - June 20, 2006 1. The development shall comply with the site plan requirements approved as part of Planning Case #06-24. 2. No unlicensed or inoperable vehicles shall be stored on premises except in appropriately designed and screened storage areas. 3. The drop-off location for damaged vehicles will be limited to the parking stalls in the southwest corner of the lot behind the evergreens. 4. All repair, assembly, disassembly and maintenance of vehicles shall occur within closed building except minor maintenance including, but not limited to, tire inflation, adding oil and wiper replacement. 5. No exterior public address system is permitted. 6. No sales, storage or display of used automobiles or other vehicles such as motorcycles, snowmobiles, or all-terrain vehicles. 7. Disposal of vehicle fluids shall comply with Minnesota Pollution Control Agency regulations. 8. Facilities for the collection of waste oil must be provided." All voted in favor and the motion carried unanimously with a vote of 6 to o. PUBLIC HEARING: THOMAS SCHWARTZ: REQUEST FOR VARIANCE TO ALLOW STRUCTURES WITHIN 40 FOOT WETLAND BUFFER SETBACK ON PROPERTY LOCATED AT 7376 BENT BOW TRAIL. PLANNING CASE 06-22. Don Asleson presented the staff report on this item. Papke: What's the material of the decking around the fire pit area there? Is that gravel? Pavers? Asleson: This right here is actually, I believe it's a paver. The applicant could correct me ifI'm wrong. Papke: Okay, so it's impervious. Okay. Asleson: They are under their impervious coverage. Papke: Right, but the actual incursion into the wetland setback is impervious. Asleson: Right. McDonald: Debbie. Kevin. 42 Planning Commission Meeting - June 20, 2006 Dillon: I don't have any questions. McDonald: Mark? Dan? Keefe: Can you give us your view of how this condition created itself? I read something I think in the letters maybe attached that they talked about they weren't aware from the developer or what's your understanding of that? Asleson: From what I understand the applicant has said that he spoke with somebody at the City, however we weren't able to verify any sort of documentation that the conversation existed. Obviously if we would have had the zoning permit, I think the issue would have been avoided. So I guess a brief conversation with the building department, however we weren't able to verify any sort of conversation or documentation. McDonald: Is this something that would now have been caught by our zoning compliance? Asleson: Yes. The zoning compliance. McDonald: How entrenched is this into the property? I mean are we talking about footings being sunk for the gazebo or is this something that floats on a base? Asleson: That would be a question probably better answered by the applicant. The construction of the actual gazebo and structure, the patio and fire structure were never in our discussion so I guess I would forward that to the applicant. McDonald: Okay, and then when you had talked about the 2000 I guess survey. Is it the yellow area that all of this could be moved to, which would be more or less directed behind the house instead of off to the side? Asleson: That's correct. That would be an acceptable area for the structures on that particular property. McDonald: Okay. Thank you. I have no further questions. If the applicant is here, if you would come forward. Thomas Schwartz: Good evening Chair McDonald, commissioners. My name is Thomas Schwartz. I live at 7376 Bent Bow Trail. To answer that one question, the gazebo itself is on standard footings. The fire pit is free standing. It stands at maximum height 18 inches off ground on one level. Ground level at the intersection... The intersection of the base of the gazebo and here so basically ground level here. What isn't shown as part of when we did this comprehensive landscaping plan, what isn't shown here is just to the east of the gazebo are additional landscaping and trees that currently stand about 10 to 12 feet in height. They're filling in very naturally creating a natural buffer from Bent Bow as far as the views to the gazebo. As far as that side of the property, we also have pine trees that are now growing and filling in that should create an additional buffer, visible buffer I should say for anything that we do as far as 43 Planning Commission Meeting - June 20, 2006 landscaping. Originally when the gazebo was built and when I went to the property association initially with my request and received approval from them at that time the gazebo was built, it was under the understanding that there weren't any restrictions. The only thing that I was aware of at the time that the gazebo was built is a 10 foot buffer to the actual, or to the, or for the wetlands. Nothing else. Unfortunately in my investigation at the time was disclosed as far as any restrictions or any barriers, I went through all of our documentation that was given to us at the time of purchase of the property and in there nothing is disclosed relative to barriers that would prohibit me from placing the gardens where they've been placed, or the gazebo, etc. So we became aware of the fact that this was encroaching a wetland buffer setback when Mr. Asleson contacted me in November oflast year after those rains. So we're asking for is in fact an after the fact, not knowing that I put them in a place they shouldn't be. I hope you can appreciate and seeing the picture, that these are natural set, within a relatively distance to the pond because that would be the best place. I mean if you're going to put something, you know on this property, you'd want it aesthetically pleasing and visible and it lends itself off of my deck directly to the gazebo, within in the landscaping plan that was created. McDonald: Okay, any questions of the applicant? Papke: Ah yes sir. At the time you constructed it, did you have a copy of this plat drawing? Thomas Schwartz: I did not. Papke: Okay. And you didn't attempt to get a plat of your lot? Thomas Schwartz: I used what I received from, at the time it was Lundgren development. What they gave me within the packet. That also disclosed all of the restrictions if you will within the development. What you could or couldn't do. Where you could or couldn't do them. They list specifically by lot, by block what is allowable. My property isn't mentioned within those documentation. With that, and with the understanding or when I bought the property that there was that 10 foot, no touch, no fuss, no muss. Don't go near the 10 foot and I got that real loud and clear. I stayed away from it. Everything else was developed, I mean the landscaping, the gardens, you know all of it was with the aid of local landscapers. Local contractors who I entrusted would follow up anything that I found out. I personally made a call after going through the building process for the deck, I called the same individual that I had on my list of approving the deck stages. Told him I was buying a gazebo kit. Putting it in a comprehensive landscaping plan. Were there any issues and unfortunately undocumented the answer was no. Larson: Did, when you closed on this property, did you get title insurance or title packet? What do you call those? Thomas Schwartz: Yes. Larson: Typically in one of those they will have a surveyor a plat drawing within that. But I guess maybe upon looking you know at the plat drawing that would be in there, what I don't know is, I'm assuming that the, on the plat drawing you're going to show all easements that 44 Planning Commission Meeting - June 20, 2006 happen to be on the property. Including the conservation easement but I don't know if that is shown or not so therefore. Thomas Schwartz: Unfortunately it is not, and what I can tell you is that I used, I used what I submitted to the development and then consequently used as kind of, when I went to the landscapers and went to the contractors they, you know this is what I want to do. You know it just didn't appear on anything I received unfortunately so I went, at this time finding out blindly along thinking that I was okay putting it where it was. It's been a heck of an education. Larson: Why don't we put conservation easements on plat drawings? I mean truly, I mean because this could have been completely avoided if something like that had been put on there... Thomas Schwartz: And truthfully, and you know Don is probably, I hope he can support me on this. The comment, and as well as going back now to the folks who bought Lundgren Development, two things would have been obvious in my opinion at this point. One is I would have never put it where it is. It would have made no sense. With or without a permit, irregardless of how that answer came about, it would have never made sense to put where it is had anybody stood up and said can't put it there. Okay. Secondly, and kind of off the beaten path here, I've actually. . . property with as many restrictions as that are on this piece of property, I don't think anybody in their right mind would have ever put a house on that property. And let alone put any time or money or effort into putting in a garden. I hate to mention the dollars I have involved in putting in that garden that's got to come out. I mean that, this thing has been a disaster, is the only way I can state it. It's been a disaster. Larson: Yeah, well is there any consideration, I don't know Bob if this is for you but, if he were to, if it was the pavers, would you guys consider allowing just that little piece of the gazebo? I mean it's really, it's not the whole gazebo. It's like one-third of it, you know. Generous: That's up to you. Larson: Okay. I mean truly it's absolutely gorgeous and I just, you know when I read this my heart went out to you because I thought you know, what a bummer. Thomas Schwartz: I appreciate that. Larson: But okay, I guess that's all I have at this point. Thomas Schwartz: And I think partly, if! can try and defend, if! can a little bit of where I believe maybe Lundgren and their sales staff came from. At the time that I bought this property, and true I believe if I understood it correctly, May of 200 1 the restriction stated that it was primary resident only, and it was only after May that there was a new change to that to include all, I mean you call it impervious surfaces. And if! understand that correctly, and again I'm unable to verify it on the web site. I was unable to get anybody within city staff to say you know what, yeah you're right. But I have a gentleman who has offered some advice and his comment was, that that's in fact the case. Is that was only adopted after unfortunately the gazebo was actually put in place. So that may be why Lundgren never mentioned it. I can only assume that. 45 Planning Commission Meeting - June 20, 2006 McDonald: Kevin. Dillon: And I don't know if this question is for you for the staff but if the structures were to remain, what, is there harm to the wetland that they're there? I mean is the construction damage like already been done or I mean what's the down side to leaving them there? Besides the legalities and not getting the variance... Asleson: You know as far as increase impervious surface was, which I think would be, has been covered, it doesn't appear that the wetland vegetation has been cleared around the wetland like the applicant has stated. It appears that he has stayed back about 10 feet from what would be the wetland edge. Unfortunately you know I don't know. I can't really answer that with any certainty that anything has changed within the wetland because I haven't seen it before the structures were there. McDonald: Okay. Undestad: It just looks like you had contacted the city but it was back in the building department issue again? Thomas Schwartz: Unfortunately, and unfortunately it's not in writing. McDonald: No questions? Keefe: No questions. McDonald: I guess at this point I'll probably hold all of my questions and comments too until the very end. Thank you for coming up. This is a public meeting so at this point I'll open up the floor to anyone wishing to make comment or ask questions to come forward to the podium. Seeing no one come forward, we'll close the public meeting and I'll bring it back to the commissioners for discussion. Start with Dan. Keefe: Yeah. I empathize with the applicant. Unfortunately I think. . . pretty clear in this matter and I'm not, you know I think we'd end up getting into trouble if we end up giving variances, especially when it comes to wetlands. That's all. Undestad: You know, we've been through these before and unfortunately the applicant went through the building department process and again, trying to find out what's required and what's needed and I think we've changed that problem by putting our zoning reviews into place at this point. It looks like he's done a great job with landscaping back there. Preserving the wetland areas back there and the hard surface coverage, he's not expanding that at all. He's well within that. It looks very nice back there. The issue still remains is us as a commission, you know looking for hardships in these types of things and again, coming into these, I always get kind of torn up because I think the hardship, it looks beautiful back there. To try and tear this up, move it and it would be difficult. I'm still kind of in the middle here but again, I mean he's done a fantastic job landscaping back there. It looks very nice. 46 Planning Commission Meeting - June 20, 2006 McDonald: Thank you. Kevin. Dillon: You know it's... and we shouldn't be out... but by the same token if someone can... tell me what the real negative impact is to the wetland, or the down side, I don't, I mean you know, if there's sludge bubbling up from underneath the gazebo or it's causing a problem, that's a different story but no one can tell me that that's the case. So there's no clearly identified negative impact. Asleson: Can I say something? McDonald: Yes. Asleson: Okay. The only down side I would see is that you lose a net buffer area around the wetland. You know maintaining a 20 foot average buffer around the area as part of the PUD was part of that PUD's requirement. Certain lots received smaller buffer areas. Certain lots received larger buffer areas, so as far as impacting the wetland through decreased buffer area, that would be maybe a potential impact for that. I just wanted to throw that out there because there is the buffer area and 20 foot average that would be decreased. McDonald: Okay, thank you. Larson: My take on it is, I guess maybe the only part would be the decking, if that could be moved, I would be all in favor of leaving the gazebo, just because it's not that much. And if the deck could maybe be pushed around to one side, out of the conservation easement then I'd be more than... McDonald: Okay. Kurt. Papke: This one's a prime example of why we put the zoning compliance into the city code. I mean it's just, it's classic. Every time we get one of these, it's just classic. In terms of the impact if this was just incurring a couple of feet into the setback, you know I'd be inclined to give a little bit here but the fact that it goes all the way into the conservation easement I think it just way too egregious of a variance here. And the fact that you have impervious pavers as well, and there's, in cases we've had a couple cases, I remember one distinctly we had a couple years ago where we had an accessory structure near Lotus Lake and there was almost no place to move the shed, okay. We get these from time to time where there's no recourse. Where in this particular case there's a big back yard and it's a gazebo kit. It's a bunch of paver blocks. You get out the wheelbarrow and you move so you know it's regrettable but I think in this particular case it's, there are viable alternatives at play here so I would recommend that we uphold the code. McDonald: Okay, thank you. I do have one question of staff. I guess I forgot to ask you as you were going through this. You said the reason that we found this was because of a water event that came through. What happened exactly? What was the nature of that? 47 Planning Commission Meeting - June 20, 2006 Asleson: Well if you can recall the storm events we received in late September and October there, we had some pretty significant rainfall and there was some drainage issues in the Longacres development. And inspecting for those they took a look at some of the other storm water ponds in the Longacres development and wetlands. This one particularly. They did know that there was the emergency overflow, and they, that's how they came across it. They were more looking to make sure the storm water system was functioning and that people weren't threatened with wet basements. McDonald: Oh okay. Yeah, I'm always torn when these come up here. We've had a lot of them. You know it isn't always a gazebo. Sometimes it was Sport Courts. There was another applicant that came before us that fixed up their back yard but unfortunately in the process of doing that they exceed the impervious surface requirement. The harm done is that again we set these buffers up and since you start to encroach into them, that's the harm in and of itself. Is that we set a limit and we've gone through this a number of times as to how much that should be and we've kind of reached the conclusion as to how much of a setback is required for the buffers for wetlands. I always hate to sit here and try to tell you that well, you've just got to take it apart and move it but, you're in a little bit better position than some people who come in here and we make them tear up a slab of concrete or you know a very permanent structure that's encroaching into an area where it shouldn't be, but again the only way that according to the zoning that we could grant anything is to showing of a hardship and I just don't see it here so I guess, I also would have to very reluctantly vote against the variance. Undestad: One quick question. On the gazebo, like the wetland setback area, you had shown on the other drawing what moving this stuff up on this side of the house. If it just comes inside of that wetland setback? Asleson: Yeah. Undestad: So you were showing it as an alternate to keep it up in the yellow. Asleson: The wetland buffer setback line actually runs like this, and so the blue area is the 40 feet from the wetland buffer line. The wetland buffer has iron monuments in the ground to delineate where that's. Undestad: So it's got to get all the way out of that blue area. Larson: Oh... McDonald: Did you have anything else you wanted to say? Thomas Schwartz: I guess just in kind of respect to a comment that was made, it's just a gazebo. It's easy to tear it down and move it and you know it's not a big deal. It is a big deal. If! were to tear it down, I already have $5,000 into this thing. I've got another $3,500 in having this property surveyed, just to stand before you today. Okay. If! were to move it, tearing it down is simple. Pulling out the qualified pilings, disrupting the landscaping, rebuilding the landscaping and rebuilding the gazebo, minimum is $21,000. Irregardless of my ability to pay that or not, 48 Planning Commission Meeting - June 20, 2006 that's a hardship on anybody. I mean we're talking potentially $40,000 to $50,000 of cash just to move it. By the time I'm all said and done, including permits. Now I'm willing, and I've already disrupted a garden that was associated to this, okay to put in a better overland, overflow swale because we were told that those raised beds that were in that garden jeopardized that. With the engineers that came out and did the survey, they've confirmed that swale works. Without disrupting the garden. But we're willing to do what we have to as a compromise in hopes that with the significant costs that I may have to incur, with the fact that it is part of a very extensive landscaping project, and the fact that we're willing to do what we have to on that overland, overflow swale to make it, I mean we want to cooperate. But we're hoping that you know there's somewhere in the middle here that we can be met. One of the comments that does it create a hardship on the wetlands? Has it or will it in the future? Mr. Asleson has even stated so directly to me that if it had caused any damage, that damage would have been caused already. There will be no future ill effect by leaving the gazebo where it is. So I'm hoping with. . . truly a financial hardship here, and in addition to that if in fact the city code had been changed interim to this being built, I would not have been aware that that code existed as it is relative to the gazebo. So I ask that to be considered as part of your decision. McDonald: Well first of all I'd like to address your comment about it's only a gazebo. None of us up here think it's only a gazebo. We may have said that as an illustration, and again what we're trying to get across is you're not the only resident of this city that has come before us and has suffered a financial hardship. I feel for you and I understand that and the finances are a hardship. Unfortunately the way the code is written, and we have to look for a hardship, financial hardship is not one of the criteria that we're allowed to judge by. My suggestion to you is that once we have taken our vote, if this does go before the city commission, and between now and then you have an opportunity to talk with staff and if you can convince them as far as a compromise, things could change once you get up to the commission meeting. You still have an opportunity to try to reach an agreement, but again that's why our only role is to look at what the ordinances and the subdivision rules allow us to look at. Weare not allowed to change them and the problem is is that with these setbacks, you are so deep into them, we just can't grant that type of a variance because of the impact it has on the rest of the city. It's not just you. It's the rest of the city, and that's why the ordinances were put together the way they were and we have to judge everything based upon that. So I do feel your pain and everything and I do understand that it is a financial hardship, but again we can't use that criteria as part of our evaluation up here. And I do apologize for that. We as a commission did recognize this as being a problem and did ask city staff to do something so that homeowners have some way of knowing beforehand that they're encroaching upon something. And I'm just hoping that in the future we can save someone else from going through all this misery but again, I'm afraid that the way the ordinances are written, our only role is to judge things based upon that. With that, I'd like to get a motion. Actually did we discuss this yet? Yes we did. Papke: Yeah, we all had comments. Mr. Chair, I make a motion that the Planning Commission denies the 52 foot variance for the 175 square foot gazebo and the 45 foot variance from the 230 square foot patio/fire ring structures based on the findings of fact in the staff report, and conditions 1 through 3. In addition I make a motion that we order the applicant to remove the structures from within the wetland buffer setback and restore native vegetation to disturbed areas as required by city code. If the structures are to remain on the property with conforming 49 Planning Commission Meeting - June 20, 2006 setbacks, building permits and zoning permits must be obtained. The applicant shall also install wetland buffer signs provided by the City at the monument locations. McDonald: Can I have a second? Undestad: Second. Papke moved, U ndestad seconded that the Planning Commission denies the 52 foot variance for the 175 square foot gazebo and the 45 foot variance from the 230 square foot patio/fire ring structures based on the findings of fact in the staff report and the following: 1. The applicant's hardship is self created in nature. 2. The applicant has reasonable use of the property. 3. The conditions upon which a petition for a variance is based are applicable, generally to other property within the same zoning classification. In addition, the Planning Commission orders the applicant to remove the structures from within the wetland buffer setback and restore native vegetation to disturbed areas as required by city code. If the structures are to remain on the property with conforming setbacks, building permits and zoning permits must be obtained. The applicant shall also install wetland buffer signs provided by the City at the monument locations. All voted in favor, except Larson and Dillon who opposed, and the motion carried with a vote of 4 to 2. McDonald: And again, what I would encourage the applicant to do is that between now and the City Council meeting, offer city staff some of the plans that you brought up. If those would be acceptable, I'm sure that they will propose that to City Council when you plead your case before them. They have the power to actually make adjustments to the city code. Thank you. Thomas Schwartz: Thank you for your time. PUBLIC HEARING: GARY CARLSON: VARIANCE REQUEST FOR RELIEF FROM 30 FOOT FRONT YARD SETBACK REQUIREMENTS FOR THE CONSTRUCTION OF AN EXISTING FOUR STALL GARAGE AND RELIEF FROM THE 1.000 SQUARE FOOT DETACHED ACCESSORY STRUCTURE RESTRICTION FOR THE RSF DISTRICT. THE SITE IS LOCATED IN THE SINGLE FAMILY RESIDENTIAL (RSF) DISTRICT AT 3891 WEST 62ND STREET. PLANNING CASE 06-23. Josh Metzer presented the staff report on this item. 50