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CC Minutes 7-12-21City Council Minutes – July 12, 2021 7 NEW BUSINESS. APPROVE A REQUEST FOR AN AMENDMENT TO THE INTERIM USE PERMIT (IUP) TO REMOVE THE CONDITION REQUIRING THE INSTALLATION OF DRIVING RANGE NETS Ms. Aanenson said this item is an appeal of a condition for an IUP. This required a public hearing at the Planning Commission and the City Council must weigh in. Brian and Keri Colvin, Applicants, are requesting that condition 8, requiring the installation of driving range nets be removed from IUP 2021-02. The property is located on Flying Cloud Drive and is zoned Agricultural Estate and is guided for 2040 Land Use as office, and is 97 acres. In July 1998 the City approved a site plan, IUP, with wetland alteration permit to allow the driving range. In September 1999 the City amended the site plan to allow a second story over the driving dens and amended the City Code to allow 3.2% liquor. In October 2006 the City amended the site plan and granted variances for an 11,000 square-foot addition. In 2018 the driving range was closed. Per City Code, after six months of inactivity the IUP expired. In January 2021 the City Council approved resumption of the driving range under the IUP with the condition that the nets be installed by June 2021. In May, the Applicant requested that the condition of the nets be lifted, stating that wetlands are 400 yards away and golfers cannot hit balls that far, they machine and hand pick balls daily, and the driving range had not utilized nets for 10 years previous. At the 2020 site visit stray balls were not seen, and Ms. Aanenson noted the river rose quite a bit before that, so if there were balls there, they may or may not have drifted off. The Applicant stated if the balls were driven into the wetlands, they would voluntarily install the nets. Staff’s position was that wetland boundaries are not always obvious; the most recent delineation (1998, expired) showed the boundary 275 yards away. From the Applicant’s statements, balls can travel 275+ yards. Even if balls land short of that they could land within the wetland buffer area. As stated by water resources, significant concern is equipment being operated in and out of the wetland buffer, so Staff did not require a new delineation to reissue the IUP because the Applicant had agreed to put the nets up. Now that they want to take the nets down, Staff would want that as a consideration to where that wetland delineation is. The condition is designed to provide maximum protection to the City’s environmental sensitivity, recognizing it is a financial burden to put nets up. Driving ranges typically feature nets. The Planning Commission held a public hearing on the topic and voted 4-2 to recommend denial of the request to remove the condition. Commissioners recommended denial because they were aware of the condition regarding the wetlands and maximum protection and expressed the concern that the Department of Natural Resources (DNR) had not weighed in, and still have not. No members of the public commented on this request. Ms. Aanenson noted some Councilmember questions, including whether vegetation could be put towards the back, but there are wetlands there so putting pine trees or other types of trees probably would not do very well and die; she confirmed this with the City Forester. Some inspections were deferred while in the process of resolving this issue. Lower Minnesota River Watershed District has jurisdiction and Ms. Aanenson noted their rules are perhaps not as strident as the Riley Purgatory Bluff Creek Watershed District would be, although they have not weighed in on the issue. City Council Minutes – July 12, 2021 8 Councilman Campion asked who weighed in with concerns over the wetland. Ms. Aanenson replied those were the original conditions of approval granted with the first permit. Staff recommended sticking with those original conditions. Councilman Campion clarified the original conditions were set by the watershed. Ms. Aanenson replied the U.S. Department of Interior and DNR put those conditions of approval on, and she noted it is a fly zone for birds and wildlife movement. Councilwoman Schubert noted she is struggling with having a net that is 4.5 feet off the ground, and asked how is that stopping balls from rolling. Ms. Aanenson’s understanding is that the balls would hit the net and then drop down. Councilman McDonald asked what they are trying to protect here? If one hits a ball out 300 yards during the season, can they take a ball retrieving machine out there to pick up balls or is the ground too wet. Ms. Aanenson replied they are trying to protect the existing wetland boundary as it was designated in 1998, and the most impacted would be to the east and to the south. Councilman McDonald asked what damage a golf ball does to the environment. Ms. Aanenson replied if there were a lot of them out there it would impact. Councilman McDonald noted if there were a lot out there, he could retrieve them as he would be able to see them. He said if he hits a golf ball close to 300 yards, does that mean it is gone and no one can retrieve it or can they go out and pick it up? Ms. Aanenson noted either side is environmental with Raguet Wildlife Management Area and National Wildlife Area, and this is part of a natural, environmental area. Those were the standards that were put in place. Councilwoman Rehm said upon reading the notes, it said that the net will not necessarily keep the balls from going into that buffer zone beyond, but it would keep the machinery and the staff from going beyond that area so it is a nice marker. She also had the question regarding a net 4.5 feet above the ground. She noted it does make sense to have something there as it is a very environmentally sensitive area. Ms. Aanenson noted the Water Resources Coordinator’s main concern was keeping equipment out of the wetland buffer area. The other alternative was to put a fence in the southern portion. City Council Minutes – July 12, 2021 9 Mayor Ryan asked if there is a recommendation on the type of fence. Ms. Aanenson replied no, it would be standard, not a net but a fence and she thinks it is something they could get some input on to transition between the nets and a fence that would identify that as a wetland. Councilwoman Rehm thought in the 1998 document there was something specifically mentioned about the type of net. Ms. Aanenson replied yes, the net was the type that birds would not get hung up in but would be repelled. However, that is different than the fence question. Councilman McDonald noted that answered part of his question, what they are trying to protect is to keep the equipment out of the wetlands. They could do that and mark the limits – they don’t need a net or a fence – as it would be very easy to mark on the ground where ball retrieval equipment can go and where it cannot. He is not sure a net accomplishes all of this and is still at a loss as to why they need a net. He now understands what they are trying to protect and there are other ways to protect that besides having to go to the expense of putting up a net. He stated it seems like overkill. Mayor Ryan’s thoughts are along the same lines as Councilwoman Schubert and Councilman McDonald, she does not see the need for a net. She is curious more about the need for a fence or how they could clearly mark the wetland and keep people and equipment off as she thinks that is very important. She does not know what that looks like or where they would get recommendations but she would be interested in having staff pursue this further. In reading through things, it really is more about keeping people and equipment off the wetland than it is anything else. She knows the DNR is concerned about wildlife migration and wildlife impact and that is why the nets are 4.5 feet off the ground, but balls can still roll underneath that if one has that sweet of a drive. She would like some investigation about the type of markings or fencing to keep people and equipment out of the wetland versus an actual net. Mayor Ryan asked Ms. Aanenson as part of the motion has to do with a wetland delineation, what is involved with that. Ms. Aanenson replied because the delineation goes back to 1998, if the recommendation was to put some kind of fencing, they would want to be sure the fencing is on the right side of the wetland rather than in the wetland. Mayor Ryan asked if there was not going to be fencing but markers, would that still be part of it. Mr. Howley replied a wetland delineation is done by someone who is certified by the State and has the skills and training to identify what a wetland is. They go out to the site, spend a day and mark where the wetland is by visual observation based on vegetation, take soil samples, and decide where they as a professional feel that the wetland is. The report is then reviewed by a City Council Minutes – July 12, 2021 10 panel which would be the City, Bureau of Water and Soil Resources (BWSR), and various organizations. A delineation is typically good between two to five years before it is old and needs to be redone. Where the wetland was in 1998 versus where it is today could be materially different. Mayor Ryan noted once that is produced, they could make a determination on whether they need netting, fencing, or markers based on whether the wetland has moved in or out. Robert Fashingbauer, the area Wildlife Supervisor for the Minnesota DNR Fish and Wildlife division is in charge of all wildlife management areas, public hunting, and fishing for Dakota, Scott, Carver, and Hennepin County. He apologized on behalf of the DNR because had they answered the request from the City Council or the Planning Commission earlier, they wouldn’t even be here today. At the DNR, the last thing they want to see is any kind of netting, fencing, or anything that will inhibit free passage of wildlife. Part of the reason they were not able to be contacted is because they just closed their Shakopee office and the transition happened in February/March which is why they did not get back to the City. Mr. Fashingbauer stated he was contacted by the owners, he went out to the property the previous Friday, and noted the area is a very important waterfowl and crane migration route, and especially for raptors, hawks, owls, and eagles, they like to perch on netting and their claws are so sharp they get between the interwoven fibers of the netting. He has had many calls to go and pick out a dead eagle or hawk. The last thing he wants to see, especially in that area, is netting. Fencing is even worse when it comes to free passage of reptiles and amphibians as there are a lot of frogs and turtles in that area. Turtles come upland to lay eggs, and frogs come very far from the wetland area in the grass to feed on insects. Most importantly, Mr. Fashingbauer has been in contact with BWSR and the Soil and Water Conservation District (SWCD); those two entities and he himself would be in charge of verifying the wetlands and would be the Technical Evaluation Panel. They are all in agreement that it does not matter where the wetland edge is, it makes no difference because there is nothing in any state of law that says one cannot drive a golf cart and a ball picker through a wetland. Mr. Fashingbauer stated the owners right now, today, could go out there with a tractor and a plow, and plow it up and plant corn right through the wetland area. The only thing one cannot do in a wetland is fill or drain. There is nothing in the Wetland Conservation Act that would prevent these owners to go out with a golf cart and a ball picker; he said “if you’re going to do that then you better shut down every golf course in the State.” He noted people would walk out there on site and ask where the wetland is, he noted it is obviously a dry year. Mr. Fashingbauer stated he was a wetland delineator for 15 years before he came to work for the State. Looking at soil, plants, hydrology, it is all moot and it does not matter where the wetland edge is because they have every right – there is no State law that says one cannot drive – they can drive a pick-up through or anything they want as long as it does not alter that hydrology. He would rather have some golf balls in his wildlife management area than getting a call that something is stuck in the fence or the netting. City Council Minutes – July 12, 2021 11 Mr. Fashingbauer stated when he was out on Friday, he walked around and there were a pair of cranes with a young crane, wild turkeys, many waterfowl flying back and forth. He said in the mowed area, the last 40 yards being mowed is wetland area to catch the handful of balls that can go beyond 300 yards, and that is a very important place for the cranes and critters to come out and pick at the frogs and insects. He would even go so far (although it is not his business) to say that the Applicant remove the existing cables and pulleys that are haphazardly hanging from the poles as that is also an obstruction to the wildlife. He is steadfastly against any netting or fencing. Mr. Fashingbauer stated he has been listening and it is all good conversation, but setting a precedent that one cannot drive a golf cart/ball picker in a wetland, they will have trouble with every golf course in the State of Minnesota. He clarified there is a 400-foot de minimus so with all the building projects coming in, they can fill 400 square feet of a wetland in a project without any project from BWSR, SWCD, or the DNR. He said it would take golf balls a foot thick covering 400 square feet and if that were to happen, they would have six months to remove. As an adjacent landowner for the State, they are not concerned about golf balls and there is nothing that says they are an environmental hazard. In reading past minutes, as far as golf balls migrating during a flood stage into the Minnesota River, he would really be surprised and it is really not that big of a concern if they did. He noted the current owners, as with the previous owners, have the DNR’s permission to go out and pick up their golf balls. Councilwoman Rehm asked if a City law is usually more strict than the DNR, because even with the Avienda project they had to move the wetland. Mr. Howley said the Avienda projects, like many projects, are filling wetlands and then there is a permitting situation. Mayor Ryan said there is a City process in talking about draining or filling wetlands and multiple jurisdictions that have to approve it in order for any type of impeding on wetlands. Councilman Campion moved, Councilman McDonald seconded, that the Chanhassen City Council recommends relief of Condition 9 of the Interim Use Permit #2021-02. All voted in favor and the motion carried unanimously with a vote of 5 to 0. COUNCIL PRESENTATIONS. Councilwoman Rehm stated on Thursday, July 29, 2021 from 6:00 p.m. – 7:30 p.m., there will be a Town Hall for All presented by the Crucial Conversations Group and Carver County Sherriff Jason Kamerud. This group has been meeting with the Sherriff regarding various policing issues and he will be answering a list of questions that have been submitted. People need to register for the virtual Town Hall in advance and is for all of Carver County. Councilman McDonald attended all three days of the 4th of July Celebration and he thinks they pulled off a really great celebration. The weather also cooperated, and he was surprised at the