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.
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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
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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
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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.
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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.
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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?
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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,
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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
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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.
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