Loading...
07-19-2022CHANHASSEN PLANNING COMMISSION REGULAR MEETING MINUTES JULY 19, 2022 CALL TO ORDER: Chairman von Oven called the meeting to order at 7:00 p.m. MEMBERS PRESENT: Mark von Oven, Erik Johnson, Perry Schwartz, Ryan Soller, Kelsey Alto. MEMBERS ABSENT: Edward Goff, Eric Noyes STAFF PRESENT: Kate Aanenson, Community Development Director; Erik Henricksen, Project Engineer; Sharmeen Al-Jaff, Senior Planner; Joe Seidl, Water Resources Engineer. PUBLIC PRESENT: Matt Pavek, Kevin Teppen, Matt Sheehan Civil Site Group David Bieker Denali Custom Homes Seth Loken Alliant Engineering Jim Morin Nancy and Don Giacchetti 6679 Lakeway Drive Chris Mozina 6670 Point Lake Lucy Bruce Miller 6667 Point Lake Lucy Heida Onan 6700 Pointe Lake Lucy Thomas Hoghaug 6713 Lakeway Drive Patty Chapman 6675 Lakeway Drive Jim Wildermuth 6672 Lakeway Drive Blake Tornga 6686 Pointe Lake Lucy Ella Hale 600 Fox Hill Drive Francesca Landon 620 Fox Hill Drive John Stutzman 6901 Yuma Drive Deeann Hale 600 Fox Hill Drive PUBLIC HEARING: 1441 LAKE LUCY ROAD (GAYLE MORIN ADDITION): CONSIDER A REQUEST FOR REZONING PROPERTY FROM RURAL RESIDENTIAL DISTRICT TO SINGLE- FAMILY RESIDENTIAL DISTRICT AND SUBDIVISION OF 4.84 ACRES INTO TWO LOTS Senior Planner Al-Jaff gave a presentation on the item, noting the site is guided residential low- density and the application is consistent with the land use plan. There is currently a single-family home on the site served by a driveway off Lake Lucy Road with two wetlands and abutting Lake Lucy which makes it a riparian parcel and must meet requirements of the Shoreland Overlay District. An existing turnaround is part of the private street and is intended to serve the new parcel after the site is subdivided. She gave history on the site noting City Council directed staff Planning Commission Minutes – July 19, 2022 2 to look at how this area will develop and how they will serve the Morin property. She shared history of the site including two additional parcels, the possibility of adding a public street, and eventually went forward with a private street with a variance to serve up to five homes off the private street. The Morins worked with the developer and agreed to put the turnaround on their property to maximize the number of units the developer could put on the adjacent property. A cross-access agreement was granted at that time to the Morins. Water Resources Engineer Seidl gave history of the site from a three lot split to a two lot split. He noted with a previous application process the City received a number of comments from concerned residents in the area. He noted they used WSB Consulting to help with the review of the stormwater and passed those concerns on. Mr. Seidl shared about drainage patterns noting a north to south downhill slope with stormwater runoff going to Wetland A primarily from sheet flow and is conveyed to Wetland B via a small conveyance channel which then goes to Lake Lucy. The proposed project largely maintains the drainage patterns with the exception of increased impervious area provided by the home and the driveway connection. It includes a small stormwater Best Management Practice (BMP) which treats stormwater before it enters Wetland A. The project appears to meet both Watershed and City rules and regulations and the buffer area would be memorialized through a maintenance declaration with the Riley Purgatory Watershed District. The project received conditional approval from the Watershed District on June 1, 2022 and slightly reduces the high water level of Wetland A which should be a benefit to adjacent properties by reducing the flood risk. He spoke about concerns from the Lake Lucy taskforce including the geotechnical report, groundwater, wetland protection, heavy equipment, grading, and a freeboard requirement. Ms. Al-Jaff continued the presentation noting City requirements for park distances, tree loss/addition, and landscaping. Staff recommends approval of the development with conditions listed in the report and adoption of the Findings of Fact and Recommendation, as well as rezoning the property from Rural Residential to Single Family. Commissioner Schwartz asked about the conveyance channel between the two wetlands and noted Mr. Giacchetti refers to it as a creek. He asked if this is a semantic difference or if staff views the waterway as something other than a creek. Mr. Seidl would say it is more of a semantic difference. The channel/creek conveys the water from A to B, it is a natural channel and is not man-made and does not appear to convey water all the time. When it is dry (he would be surprised if it was not still dry) and during wet conditions, there is a natural overflow and the channel conveys the water between wetlands. Commissioner Schwartz asked about the discrepancy between staff’s assessment of drainage, stormwater management, erosion prevention, and sediment control, and those of the experts that Mr. Giacchetti’s group engaged. Mr. Seidl asked if Mr. Schwartz can be more specific. Commissioner Schwartz cannot because he is not an expert and read both reports and noted there seems to be a discrepancy. Planning Commission Minutes – July 19, 2022 3 Mr. Seidl can only answer from the perspective of staff review. They look at City ordinance, rules, and regulations and apply those. If it meets the rules and regulations that is the basis of staff’s finding of fact. Commissioner Schwartz asked for a comment on the validity of the location discrepancy regarding the soil borings and the work performed by the geotechnical company on February 15, 2022. Mr. Seidl did not do the technical analysis but what he can offer is what the City is typically looking at for stormwater reporting including the soils (sandy clay which is typical of Chanhassen), and the depth which may be associated with the ground water in that area. Mr. Seidl noted the analysis was done by a professional geotechnical engineer who signed off on it and he would have to go with their recommendation with the caveat that there are conditions from the Watershed District and the City that they will receive additional information showing infiltration rates and the separation of ground water. The geotechnical analysis was done in the winter months which are not ideal for measuring infiltration and it is typical to get this information during spring, summer, and fall months. He stated the designer would use that data for their resubmittal. Commissioner Schwartz asked what is meant by “freeboard” requirement. Mr. Seidl replied freeboard is measured between the high water level of a pond or area collecting storm water and the low floor elevation of a property. A certain level of freeboard is wanted as a safety element to decrease risk of nuisance water and flooding. Commissioner Alto asked if a geotechnical analysis done with the City has ever been incorrect. Mr. Seidl replied not that he is aware of. He noted he has only been with the City for six months so it is difficult to answer. Commissioner Alto gathered one of the main concerns of residents is flooding and disturbance to the wetlands and who would be liable if the geotechnical analysis is incorrect and there is flooding to residents’ property: the geotechnical company, the Watershed, or the City. Mr. Seidl noted they are receiving additional information which would essentially trump what was collected in the geotechnical report and would mitigate that concern. He would consult with the legal team and get back to the Commissioners with an answer. Commissioner Alto clarified if approved they would do the initial grading and then look at the level. Mr. Seidl replied in the negative noting they would come back with an updated design after getting that additional information and then they would come back with a final design using that information. The mass grading and custom grading come after the plans are approved. Commissioner Alto noted there is additional due diligence to go through. Planning Commission Minutes – July 19, 2022 4 Mr. Seidl replied in the affirmative. Chair von Oven noted spoke about the property that the majority of Wetland A overflows into and asked if that homeowner would expect the wetland to slightly reduce with the proposed BMP? Mr. Seidl noted the modeling submitted as part of the design shows that the high water level of the wetland would be slightly reduced. Chair von Oven asked what it means for a buffer to be memorialized. Mr. Seidl stated there is a maintenance declaration with staked-in markers so it is clear to the homeowner and future homeowners that it is a wetland buffer so it is easier to maintain. Chair von Oven asked about how Lot 2 would access Lake Lucy. Mr. Seidl thinks the current design has a conservation easement over the area between Wetland B and Lake Lucy. Ms. Al-Jaff clarified with conservation easements the City typically puts limitations as to what can and cannot be done within that area. The City could add language stating “no structures”. Commissioner Alto asked about bald eagles nesting on the site. Ms. Al-Jaff stated with any development the developer and city staff deal with the situation if they encounter any form of wildlife. Commissioner Soller asked if it had always been the plan since the road was put in that another house could be there. Ms. Al-Jaff replied in the affirmative and said when the property to the west came in, the City asked the Morins to show a “napkin sketch” about how they would develop their property. The Morins envisioned two additional lots which is when the City Council gave the variance to allow five homes off the private street. They also made sure sewer and water is stubbed to the property. Mr. Seidl noted since that time of original approval stormwater and wetland regulations have changed significantly with a dramatic increase in protecting wetlands. He noted the development would appear to meet all City rules and regulations, the intent of which is to protect wetlands and the environment. Jim Morin, brother of Joe Morin, gave some background noting Joe and Gayle bought the property and developed their dream home in April 1989 and was a remote, quite, beautiful property. It was a wonderful environment to raise their adopted children from India and Korea. They have seen many changes around the property over 33 years and he is glad they are airing concerns today and noted many concerns were shared by the Morins as the other homes were developed around the property. Unfortunately, Joe passed away from cancer in 2018 and Gayle Planning Commission Minutes – July 19, 2022 5 was diagnosed 6 months later with Stage 4 lung cancer and passed away in March 2022. As a result, the home and property have become a key asset for their children who have special needs and will depend heavily on this investment for their living going forward. As neither child is likely to have children, any remaining money will go to a local charity when they pass which is set up with the trust. Mr. Morin noted they welcome concerns because Joe and Gayle would want to do things the right way and worked with neighbors, the City, and community. He also hopes the public shares the goal in a development that is done the right way and perhaps they will see this as a potential investment opportunity, or at least a way to make room for one more neighbor in the same spirit as the other developments in the area were done. Engineer Matt Pavek, Civil Site Group, was present along with landscape architect Kevin Teppen and engineer Matt Sheehan to answer any technical questions on the design. He stated they have worked for many months on versions of the plans and have worked closely with city staff. He feels they have the puzzle of drainage solved and going into final plans they will be able to refine those to meet all requirements. Chair von Oven noted another round of measurement coming and asked Mr. Pavek which he is most nervous about. Mr. Pavek stated the original geotechnical report with soil borings is preliminary and the next round will be test pits in which they will actually dig with a backhoe to look for corroboration of soil boring findings. Those will be done in a more precise location to make sure the soil is what they were expecting, and deeper to be sure no ground water within three feet of the bottom of the system. He noted they do their best to base the design on preliminary testing and then confirm it with further testing. If a redesign or shifting is necessary that is not uncommon and they can make those adjustments as they are conditions of approval. Chairman von Oven opened the public hearing. Nancy Giacchetti, along with her husband Don, have lived at 6679 Lakeway Drive for 21 years. She expressed condolences to Mr. Morin and noted they knew Joe and Gayle who were extremely nice people. She noted when they moved in 2001 and watched the other homes being put in, Dick told the Giacchettis and Jeff Dahl about the difficulty he had building on his property because it was not passing the tests regarding borings. He was very disappointed as the whole issue of building the turnaround and the arrangement with the Morins was due to that. She spoke about the low floor elevation chart and noted one reason she is concerned is that her home is in the -4.4 freeboard in the 100-year event. To her knowledge it was 2013 which was not that long ago. She stated the taskforce is comprised of people from both Point Lake Lucy and Whitetail Cove; they have learned a lot and hundreds of hours have gone into research. The taskforce believes the entire proposal is wrought with high risks and red flags. One thing they are concerned about is if mass grading and removal of trees occurs before these issues are known they will have a big “gravesite” that could exist forever. If new trees were planted to get it back to what it was, she would not be alive anymore. Ms. Giacchetti said even the best engineers can make mistakes and she spoke about the lack of notification and due process from the Watershed as they were not given notice of the June 1, 2022 meeting. Second, she spoke about inaccurate and incomplete geotechnical engineering data and analytics, noting the report states the GPS was Planning Commission Minutes – July 19, 2022 6 not working and the soil sample depth was listed two different ways. She stated building a proposed plan on incorrect data is wrought with issues and showed a photo of drone shots taken in May and noted Wetland A is a lot bigger than shown and has changed significantly than when she first moved in 21 years ago. The creek created itself out of need. Ms. Giacchetti noted if one goes out to her property they can see the lay of the land which is not like looking at a piece of paper with elevations on it. She said anyone who has walked in there has asked how can a home be built there. She feels the 400-page stormwater management report will devastate the ecosystem and the report says in many areas that “problems will be fixed” and to do that the report may swell to 1,000 pages and still may not address the major issues identified. Ms. Giacchetti is concerned that the authors of the report feel they can solve potential water problems and given bad data one cannot assure that. The engineers are developing plans for the artificial bio-filtration basin to be placed next to Wetland A and her property is located about 60 feet down from that area. Water flows downhill and they are -4.4 feet below the freeboard elevation. She noted they are also concerned about potential damage to the private road noting it is not as wide as a city road and was built in a good way but with the amount and size of the equipment that will traverse it and there is nothing in the plan to account for road repair if there are issues with that road. Ms. Giacchetti said the turnaround has been sinking and has led her to believe there is muck under there and although this is a small area it is massive work. They also wonder whether the turnaround will change the nature of water flow. She stated they are asking that they stop the insanity surrounding water management on this property all for just one home. A number of people live there and honestly, she and Don will not tolerate the jeopardy in which their home could be placed. Chris Mozina, 6670 Point Lake Lucy, shared about the smart, dedicated, ethical people that are on the taskforce who have put in hundreds of hours trying to get at the truth. He spoke about choosing the harder right instead of the easier wrong and noted it is time to stop. He said Commissioner Schwartz’s question about analysis and why it matters now is because the preliminary plat ordinance from 1840 requires an accurate soil sample. Mr. Mozina is not aware of any site grading plan that involves the Dahl’s property and noted they are creating a funnel here. He has not seen elevations on impervious surface or retaining wall nor has he seen pictures of the house which are also 1840 requirements. Mr. Mozina is inspired by Jocelyn (Jen’s 12 year old daughter) who did a science experiment in June which reminded him about the scientific method and relies on observations of data, hypothesis, and controlled experiment. The purpose is to verify the hypothesis that one could build on this property and during the observation they simply walked away, therefore the observation four months later is irrelevant that there is water in the hole because the controlled experiment was over. Mr. Mozina shared his grading of what has gone on so far and spoke about sandwiching, surprises, supervision, “seen it before” history, societal benefit, and science. He noted a lot of great work has been done, the Watershed did a ton of work and he thinks they incorporated some of the taskforce’s letters and addendums into their work. He stated the City is beginning with inaccurate data full stop, and preliminary plan requires that they have it today. Once they cross to “conditional” and “variance” there is substantial detrimental harm based on Section 18-22 in the Code. Mr. Mozina spoke about standards that have not been met and he is concerned about whether there will be environmental damage because in the report the City says no, but in the questioning clearly there is. He showed a photo of the area and said it is an integrated ecosystem right now and picturing the equipment, impervious surface, torn down trees, how can they think there will not be damage to that Planning Commission Minutes – July 19, 2022 7 ecosystem? He thinks an education guide in the future would be helpful so people can understand how the City and Watershed work together. Terry Jeffery at the Watershed stated the soil tells the truth about the wetland, it is bigger than people think, and the soil will show that. Regarding transparency and governance Mr. Mozina would like the website to say public service not just private citizens with a development hypothesis. He noted the Watershed website speaks about data collection and analysis to ensure decisions are based on sound science. The Planning Commission’s decision to recommend to the City Council is saying they believe good science was involved here and it simply was not. He asked them to reject the proposal which is substantially detrimental to the public welfare. Bruce Miller, 6667 Point Lake Lucy, built in 2000 and shared some concerns. When he saw the proposed development sign go up and having personal knowledge and experience of that area, he thought it is a high-risk. He is not an engineer but is speaking as a concerned citizen and taxpayer. When his home was built three houses were impacted by a City error; it was found that his house encroached on a wetland setback because the wetland was not shown on a City land survey so the permit was approved in error. He noted it was Case #008-VAR and staff stated if the City denied the recommendation the builder would be requested to demolish the part of the home that encroached on the 60 foot setback. As a future homeowner, one can imagine hearing that information. The bottom line is that the variance was accepted but he had to make adjustments because of that error. Twenty two years later they are here with another area that could create problems because it is high-risk. Mr. Miller hopes the Planning Commission recognizes the substantial attempts the taskforce has done to inform the District of their concerns. They made a video of a stream running between Wetlands A and B. The taskforce created a letter on April 4 to the Chanhassen Planning Department listing 72 questions generated from information on the proposal. To date, they have not had any questions answered, he noted tonight they heard information for the first time on some of the work the City has done. He spoke about the geotechnical report GPS system not working, boring holes not done to the right depth, moisture content in the soil, and he is happy to hear the City will revisit this and get the correct samples. It is too difficult to go forward without the right data. He thinks it would be prudent for the City to request a better study of the area and find out exactly what can and cannot be done on this piece of land. Mr. Miller stated the City took a strong position with his property in 2000, this area has a tremendous opportunity for error, and it is a high-risk area that could be permanently damaged if not backed up by the right data. He said City Ordinance states variances should only be approved if they avoid substantial detrimental harm to the public welfare. The taskforce believes that is the case here and they will continue to work hard to preserve this area. They strongly recommend the City listen to their concerns, protect the environment, and deny this proposal. Heida Onan, 6700 Pointe Lucy, noted this has been a long night and it is not personal for the Planning Commission because they will go home tonight and not be impacted. There are many concerns and a lot of passion that the taskforce and community have expressed, and she appreciates the reading of all the addendums and questions they have submitted. She noted a lot of insufficient, inaccurate, and incomplete data from the false water levels to the size of wetland are being under proposed, the bore holes filling with water, and the significant water level increase over 20 years shown by satellite imagery. She said this is a ravine and the wetlands will continue to grow. The faulty GPS is inexcusable and she cannot believe it was allowed to be Planning Commission Minutes – July 19, 2022 8 submitted and allowed to go forward without question. Ms. Onan said the “said bore holes” were 20 feet deep but it was only reported at 14 feet and she asked why that was incomplete and who would be accountable. She asked who will pay for damage to the road and what it will look like during and after? She asked who will be held accountable for all the conditions and how will the City be held accountable? Ms. Onan noted they understand private landowners can do anything they want but when there is an impact to neighborhoods, wetlands, and wildlife that is a whole different situation. Building on Lot 2 will have an incredible water impact on existing homeowners and there was no consideration shown for the water flow on the west side of the house and asked about proper drainage easement. Ms. Onan stated there has been a bald eagle nest on that lot and there is a lot of community concern for that. Tonight’s real concern is that this will be devastating for the neighborhood, there are a lot of questions, and she appreciates that the Commissioners read them and stated they have not received any responses. She encourages more thorough and accurate information to be utilized as what they have seen during this process does not seem to conform to the City’s rules, regulations, and process. How can the City put one taxpayer over the City’s existing surrounding taxpayers? The taskforce urges the Planning Commission to reject this development as proposed and urge the City to request updated, thorough, and accurate information before making any decision. Thomas Hoghaug, 6713 Lakeway Drive, fell in love with his lot and has a Bachelor of Science in Geology as well as an MBA and when he heard about freeboard level he noted he is the absolute lowest home in the development and is downhill straight from the Morin property. He stated even at the height of the drought last year his sump pump ran all day and he is on his fifth sump pump in 20 years. He is curious if anyone in the Watershed has looked at the impact of downstream as it is all clay, water goes through it, and ends up in his yard. In wet years, the yard squishes all the time. He spoke about trying to put a pool in his yard, a discrepancy in the pool fence setback, having to change his deck, noting mistakes happen, the water is up, and he loses a little bit every year as the cattails get bigger. He asked if anyone ever asked about other impacts besides the adjacent homes because they will all be connected. Any water diverted from Lots 1 and 2 will eventually wind up heading his direction and that is a concern. He is also concerned about the wildlife and noted he loves his lot. He sees many young and mature bald eagles, loons, wood ducks, mallards, Canada geese, great blue heron, snow geese, white tail deer, turkeys, coyotes, red fox, muskrat, beavers, screech owls, and a great horned owl. It is obvious there is a lot of activity there and development is very disturbing to the environment. He stated the pond is substantially bigger over the 20 years he has lived there and he has never seen the creek not draining. He asked if the Planning Commission needs to tentatively approve it right now or do they actually spend the time to find out if it is an active bald eagle’s nest, where the water will go, how it will impact the neighbors, traffic, and the environment. It seems like they are rushing it through. He thanked them for their time. Patty Chapman, 6675 Lakeway Drive, shared her condolences to Mr. Morin. She explained her experience in living there for 18 years and noted the proposal does not take all the water issues into consideration. The natural drainage route that leads to Wetlands A and B begins on the north edge of the Morin property, surface water drains from the north, east, and west. She invited the Commissioners to come to the property when it is raining and said if they stood where the building site is proposed and walked north they would realize a natural drain exists there. During spring when snow melts it is common to see a constant stream all the way down from the road. Planning Commission Minutes – July 19, 2022 9 Ms. Chapman is here asking them to please not disregard or ignore what she is saying or underestimate the water’s natural flow. She stated all of the plans deal with water at the home pad and south; she has not heard what they will do with the water that comes east, west, and north past her lot and where that water will go. Ms. Chapman noted they want to put the house where the water disburses and moves across and she asked where that water will go? She spoke about water volume and velocity and talked about being at the pinch point. The current proposal addressing only the downgrading elements would be insufficient and she believes it would be deliberate disregard not to take that into account and there would be sufficient potential for harm to the properties to the west of the Morin property. Ms. Chapman spoke about Minnesota case law modified the Common Enemy rule regarding surface water to require landowners diverting surface water must exercise reasonable care to avoid unnecessary injury to their neighbors. She spoke about another case from 1894 regarding natural drain accessibility. Ms. Chapman thanked the Planning Commissioners for the opportunity to speak and expects the City to address the citizens the same as the landowner or developer. Jim Wildermuth, 6672 Lakeway Drive, stated at this point there doesn’t appear to be any consideration about where workmen will park and the use of heavy equipment on the private road. He spoke about the attitude of the developer and builder and thinks the Planning Commission should reject this proposal and send it back to the City for further consideration and study. Blake Tornga, 6686 Pointe Lake Lucy, thanked the Planning Commissioners for their patience and for all of the community requests for information, the proposals, and thorough engineering work. He has not been in their shoes with residential zoning but he has been a commanding officer of a naval base and was responsible for approving very large construction projects. Based on the information tonight and with his past experience, he would have difficulty requesting or approving a policy change based on plans from flawed or even questionable data from the geotechnical report, from an environmental report, and from the residents. He noted it is probably premature given the questionable data to make a recommendation for approval. Chairman von Oven closed the public hearing. He thanked everyone for their concern noting the Commissioners are neighbors, volunteer citizens; they are in the people’s shoes and they will go home tonight and think about this. Depending on the decision tonight they will think about it for a very long time. He invited the Commissioners to ask questions and make comments. Commissioner Soller noted one thing that needs to be clarified regarding the Watershed District, it is a separate district, a separate entity, and is not governed by the City. Chair von Oven said regarding a comment on education, the Commissioners are not experts, and there is only one water expert in the room tonight. He asked staff to clarify the process from the moment a landowner makes a decision and wants to do something like this to approaching the City and asking for the specifics in the report. Then if it was to go before City Council and gets the green light, what happens after that. He wants people to understand the checks and balances that he believes to be in place. Planning Commission Minutes – July 19, 2022 10 Engineer Seidl replied Chair von Oven is correct, the Watershed District is a separate entity and State Statute gives them the right to exist, have rules and regulations, and issue permits. Part of the City of Chanhassen resides within the Riley Purgatory Watershed District, as does this project. When a project comes in, staff looks at it and sees if it triggers any Watershed rules and regulations, as many of the City’s rules regarding water overlap and then the City would notice the Watershed and have a pre-application meeting with the applicant and the Watershed. Somewhere in the design for the project there will be a condition noting that before the applicant can move forward they need approval from the other agency (Watershed) whose rules are stricter than the City. Mr. Seidl wrote in the report that before they move forward with a final plat the City would want to see approval from the Watershed District. He clarified that is typically how these projects work. Commissioner Alto said in working with the Watershed, the City is looking at the citizens’ concerns with runoff in spring, the different directions water will go when a house is placed, and those are the checks and balances to ensure that water is not diverted into the neighbors’ yards. She lived in the Lotus Lake neighborhood and lived on a road so steep they parked at the top of it in the winter due to ice. She asked regarding the geotechnical report in saying they are not finding any groundwater, are all of the decisions being based on the assumption that there would never be groundwater? Mr. Seidl replied the Watershed and the City have rules and regulations meant to protect residents from adverse effects which is an analysis of existing conditions versus proposed conditions and trying to mimic what is happening in the existing condition and mimic how drainage flows off a property. They look at rates, volumes, treatment, wetlands, buffers, setbacks, etcetera. If a design meets those rules and regulations the City approves the project because it meets the intent. Commissioner Schwartz asked given the nature of the property and the neighborhood concerns expressed, what assurances can staff and the developer provide to assuage these concerns going forward assuming the project is approved by the Planning Commission and the City Council. Mr. Seidl noted one step in between the project being constructed and where they are currently, is the final plat submittal where they are requesting additional information. There is no immediate plan to do any mass grading as that all must happen with approved plans. That is the natural checks and balances happening here. Commissioner Schwartz asked if those checks and balances would include some responsibility on the part of the City to address the existence of the eagles’ nest. Ms. Al-Jaff replied if a situation was encountered while a developer was on site, they will address it. This is something that has happened in the past and the builder, developer, and the City come together to address it and ensure that wildlife is protected. She stated there will be a large conservation easement on the site and while there is an area that will be graded to accommodate the future home, the southern half of the development will be preserved in its natural state. Planning Commission Minutes – July 19, 2022 11 Commissioner Schwartz asked what happens if the eagles nest is on a tree smack dab in the middle of where they want to put the house. Community Development Director Aanenson has been with the City for thirty years and has seen this incident before. Sometimes one can restrict the time that construction can take place and recently they were able to rescue some owls to be relocated. First they must identify where the wildlife is or if it affects construction timing. Regarding the eagles nest they would work with the appropriate agency to try to relocate the nest within the area. Commissioner Schwartz asked what happens if they are digging and find insufficient appropriate soil to build the house. Mr. Pavek, Civil Site Group, noted he is not a developer but is a civil engineer. He clarified if soil is not structurally sound they can build with pilings, geo-piers, soil can be removed and structural soil brought in, there are many options and construction techniques. Sometimes it becomes an economic decision on whether it is worth it at that point. He asked to address some of the public comments to bring clarity. As a civil engineer, his number one job is drainage and when they design they are cognizant and thinking about flood risk, ground water, etcetera, and right now this is a preliminary design. He is happy to meet with any neighbors to talk about how it sets up, freeboard, and drainage patterns. Regarding mass grading, the next step would be to do a test pit for further borings which would not be a big, disturbing event with a bunch of trees taken out. He noted they would not want to clear the site just to find out it does not work. Mass grading would happen after final plans are approved. He noted regarding the drainage coming off the site, the current plan shows water going around the house with contours and they would not design it that way. They would design it with appropriate swales to convey the water so it would not damage properties next door or increase any flood risks. The plans get checked by multiple other entities, as well and he hopes that brings people some comfort. Mr. Pavek said it is important to them as designers for the drainage to be designed in the best possible way to neighbors because the last thing they want is to cause a problem. He spoke about freeboard giving an example of a house with a basement next to a pond. The basement is supposed to be three feet above the 100-year high water level. With a large storm the pond would have to bounce up three feet higher than the 100-year level to touch that basement. That is what the freeboard is for and it is super conservative. With the little pond on this site it would be physically impossible for it to have three feet of standing water higher than its banks, noting the most it could bounce over its banks is just a couple of inches and then it flows downhill to other water bodies. The house with the -4.4 freeboard is below the pond and is not affected by that pond’s freeboard but is affected by the next downstream pond’s freeboard because it is going around. He would be happy to help clarify that with the homeowner. Commissioner Schwartz asked in the future whether they can have communication with homeowners before the Planning Commission meeting to explain the process. Commissioner Soller thinks it would be terrible to do a bunch of destruction of the natural environment only to end up with an outcome where no development is done. He asked for clarification on the process noting it sounds like more non-invasive work is done first. Planning Commission Minutes – July 19, 2022 12 Mr. Seidl clarified in order to do any significant work out there the builder or developer will need approved construction plans and permits from the City and Watershed District and must meet all conditions of approval. There will be a final plat with other hurdles required to actually secure the permits, pre-construction meetings, and he clarified they are still preliminary in the process. Chair von Oven noted some concern of preliminary numbers gathered and asked if a number of trees and a backhoe needs to be brought in to get those updated numbers. Mr. Seidl replied in the negative. Commissioner Alto stated this is always a hard conversation involving development and change is hard, especially with such wildlife. She might assume the same feelings could be had for the houses that many of the neighbors currently own backing up to wetlands which used to be habitat that was previously like the habitat they are discussing tonight. She noted it is well within the right of an owner of a property, within the guidelines of the bodies they must report to, to make these decisions and the applicants are making efforts to make these decisions based on everything that is required of them. Commissioner Alto noted they already removed the second house knowing it was not feasible and she cannot in good faith say no to this based off of the emotion of it all. Commissioner Schwartz agrees and wants to be respectful of the homeowners’ rights but also feels compelled to make sure neighbors have been listened to and can be assured that some of the concerns will be addressed. Commissioner Soller noted Mr. Morin pointed out when the neighbors moved in, it had been a paradise with no houses. He looked at an aerial map from 1957 and there was nothing there where now there are 20, 30, 40 houses there. Now things have grown up around the houses and it looks very nice with tree cover and improvements near the development because of the conservation-minded policies the City has had. He asked why everything was rezoned residential low-density but this strip of land (the Morin property) stayed rural. Commissioner Alto noted the Morins already owned it and it cannot be rezoned unless the property owner wants it rezoned. In the 2040 Comprehensive Plan that is why the City intended this would be rezoned once it came up for sale for single family low-density. Community Development Director Aanenson noted this is a large lot and typically a rural lot would be 2.5 acres. When a property owner wants to subdivide the City makes it consistent with the Comprehensive Plan. Many people keep their property in larger lots for tax purposes, and she stated this guiding is consistent with the Comprehensive Plan. Commissioner Soller asked why more work was not done to answer more of the public’s questions that were submitted. Commissioner Schwartz lives on a private street and sees the damage snowplows and garbage trucks do to the private street. These people have a very serious concern about the damage that Planning Commission Minutes – July 19, 2022 13 will be done by the construction equipment and he thinks it is a reasonable question in asking who will be responsible for maintain and repairing the damage that will be done. Chair von Oven noted there is a reason they are called private streets, everyone knows who is responsible for it: the people who live on it. He noted this is a tough answer to give but when one buys property on a golf course, golf balls will come at your house; when you buy property on a private street, you know what you are getting into. For Chair von Oven, the private street comes up at the Planning Commission every single time but he holds the same position on the private street every time. Will there be extra traffic on that street? Possibly. For a homeowner who has a right to do what he or she wants to do with their property, the concern of the private street which everyone knew was their responsibility, it is a concern for him because it is the public’s concern. However, it is not on his list of concerns because people know what they are getting into with a private street. He noted this is the single most comprehensive, well though-out, strategic presentation he has ever seen from the public and he is in each one of their shoes on the topics brought forward. In some of their 72 questions, it comes down to education and part of the process is that there are not final numbers right now. Chair von Oven see two things that need to be decided which are whether the property can be rezoned and subdivided into two lots. There is a final Watershed check that will get the real numbers and then this project will or will not go forward. He spoke about drainage, the reducing of Wetland A, and noted the landowner had two developments grow up around him is now asking for one house, not even a development. Commissioner Alto moved, Commissioner Schwartz seconded that the Chanhassen Planning Commission recommends approval of rezoning of property from Rural Residential District (RR) to Single Family Residential District (RSF), preliminary plat to subdivide 4.75 acres into two lots as shown in plans received June 16, 2022, subject to the conditions of approval, and adopts the attached Findings of Fact and Recommendation. All voted in favor and the motion carried unanimously with a vote of 5 to 0. PUBLIC HEARING: 581 FOX HILL DRIVE: CONSIDER A REQUEST FOR APPROVAL FOR SUBDIVISION OF 2.47 ACRES INTO FOUR LOTS AND ONE OUTLOT WITH VARIANCES Senior Planner Al-Jaff gave a presentation on the item stating it is a riparian lot with a single family home on the parcel with a subdivision all parcels will meet the required lot area, width, depth, and access to each parcel is from Fox Hill Drive. Project Engineer Henricksen spoke about access and right-of-way, noting the applicant is proposing to dedicate some additional right-of-way to meet the 50 feet typical to the neighborhood. It is substandard to current standards of 60 feet but matches the neighborhood and would be consistent with the needs for the road network. He spoke about the Lotus Woods subdivision from 2020 and a connection to Fox Hill Drive which he showed on screen. Sanitary sewer and water is adequate to meet the needs and there is a need for an additional fire hydrant to be installed to meet fire code. Water Resources Engineer Seidl spoke about drainage and grading noting a high point at the center of the property with storm water flowing to Lotus Lake, the wetland, or stormwater infrastructure along Carver Beach Road. Mass grading is proposed to prepare the site for home Planning Commission Minutes – July 19, 2022 14 construction, install storm water BMPs, and infrastructure before discharging water offsite. The proposed position conveys the water to four individual storm water BMPs which increases the wetland stormwater volumes and increases the 100-year high water level which is seen as an adverse impact and is something that will need to be addressed during final design submittal. He noted the project is within the Riley Purgatory Watershed District and is subject to the City and Watershed’s rules and regulations. A geotechnical analysis and related infiltration testing will be needed so the BMPs can be property designed. Ms. Al-Jaff spoke about parks and trails, trees on the site, and a conservation easement. Staff recommends approval of the preliminary plat to subdivide and a variance for the 50-foot right-of- way. Commissioner Schwartz asked staff to comment on Mr. Johanson’s email about concerns with tree removal, animal displacement, stormwater runoff, and pesticide contamination. Ms. Al-Jaff replied that Mr. Johanson is not opposed to development but noted his concern was the size of the potential homes in the future. If these parcels meet ordinance requirements and guidelines for subdivision, staff will typically recommend approval. This development has met all of those requirements and Mr. Johansen requested the size and height of the homes be limited; the City must abide by the single-family residential district and as long as they meet setbacks, hard surface coverage, and height limitations, they are permitted to build homes that would be in compliance with the ordinance. Commissioner Schwartz asked if Jill Sinclair has weighed in on any environmental issues. Ms. Al-Jaff had conversations with Ms. Sinclair about the woods. As has been done with Big Wood Boulevard, the City exercised similar practices by reducing the right-of-way and required the applicant to push the homes closer to the right-of-way with a preservation easement at the rear of the property. She noted the applicant will be 22 trees short of the maximum removal and will be replacing those trees on site. She believes as they finalize and define the location of the storm pond they can save additional trees. Commissioner Johnson noted with infiltration basins it raises a flag and asked if there are options to change those. Mr. Seidl replied the Watershed does not waive their abstraction volume requirement which is why they will need a test to prove those rates. There is a workaround which is a void space created from a rock layer under the infiltration practice to capture that volume which allows a longer time for the water to infiltrate the soil. Underground infiltration BMPs are typically a more cost-effective option. David Bieker, Denali Custom Homes, said the owner of the property will be constructing a new home on the lake side of the property. The applicants are lovely people who have lived in Chanhassen for years and are looking forward to living in the home; they are very into the environment and the outdoors. Their full intention is to plant many trees in strategic spots. He spoke about the potential road extension as well as the stormwater drainage system. Planning Commission Minutes – July 19, 2022 15 Chairman von Oven opened the public hearing. Ella Hale, 600 Fox Hill Drive, thanked the Commissioners and noted she has lived in her house for almost 30 years and she loves the neighborhood. Everyone calls the area a hidden gem; they love the woods, wildlife, and if this were to change that wildlife would have nowhere to go. This area is the last big plot of woods and is very special. She cannot imagine it not being there anymore, it affects her everyday life and she would be lying if she said she has not cried every single day since this property was sold last summer because she did not have a million dollars to buy it and she has never been more mad at herself. She wants to keep it the way it is and this is such a thin stretch of land and noted no one wants the road. It is such a quiet area, and in putting four homes there it would double the entire neighborhood. In taking most of the trees… how can someone say they love nature if they are only going to leave 35%, that is ridiculous to her, so many trees will be gone that she has watched grow since she was a kid and she played in those woods. The previous owner left it the way it was because they loved it that way. Ms. Hale understands that people want to build a home and spoke about the cottage that is currently there. It is crazy for someone to see this and want to build as many homes as possible. She asked the Commissioners to please come out to the neighborhood if they haven’t already to look at how special it is. She wishes the project could be scaled back as it will change everyday life and it will lose the magic. She spoke about growing up and the big woods seemed to go on forever and she does not believe that the trees would be replanted. She stated nobody in the neighborhood wants this and it will affect everyone else, animals, water, and so many things. She asked the Commissioners to scale it back to two homes or three but not to devastate the entire forest for one person to have all their friends live in the same strip. Francesca Landon, 620 Fox Hill Drive, noted her house looks directly into the current wetland area and years ago during the Lotus Woods development she had concerns that all the trees would be gone. She spoke about deer and fawns, barn owls, red-tail hawks, and noted she is having a difficult time visualizing the four houses as the three acres does not seem like it will fit the houses. She is not opposed to change but her concern is taking 65% of the trees down and she does not think that qualifies as loving nature. Ms. Landon noted that 65% proposed does not include what was taken down at the lakefront last summer and she does not think it includes the trees taken down by the road the last couple of weeks. She noted this is truly a gem and it is not so much about their view as it is about drainage. She spoke about Page 4 of the staff report where the developer proposes to mass grade a majority of the site and asked how that will be done without removal of trees. Right now water goes to the corner of Outlot A and pools/overflows the corner and goes into the street; there is a neighbor down there who has lost some of his lot to the wetland due to the amount of drainage that goes there. She noted the road is very small and she does not know how construction trucks will go on the road and thinks the road will be demolished. There are a lot of issues, she thinks it is an excessive building plan and it would be better if it were two or three houses total. Chairman von Oven noted the City Code of Chanhassen requires that Planning meetings end at 10:30pm by law. He is not allowed to continue and noted this is the first time he has had to do this. Planning Commission Minutes – July 19, 2022 16 Ms. Aanenson noted they can continue this item but cannot start another item. John Stutzman, 6901 Yuma Drive, is on the other side of the pond from Big Woods and has lived in the City for 14 years. He has utmost respect for staff and elected officials and said the common theme from neighbors tonight is to scale the project back. They understand development and it is an owner’s right to develop land within City Code and other governing bodies. As Ms. Landon said, the excessive nature of this seems to be a common theme and a tough area to develop. It is a very passionate issue for the neighborhood and he requested if there are ways to increase the conservation easement to save more trees and reduce the lot numbers, and he noted the bottom lot will be interesting to develop. He said if there is a way to avoid the road he would also propose that. He encouraged the Planning Commission, staff, and the developer to think about scaling this project back and be respectful of what the neighbors are asking. Deeann Hale, 600 Fox Hill Drive, grew up in Chanhassen and she has seen a lot of growth, some good change and some bad change. She was very happy many years ago when Mayor Mancito believed in conserving more trees. Ms. Hale was home one day when surveying and tree tagging was happening and one of the young men she was talking to noted there were a lot of old trees there and some were very rare and are not seen anymore. Ms. Hale said it is sad because someone will move in and not appreciate it but knock it down. Ms. Hale kept her fingers crossed that the property would stay as much the same as possible and said building four houses with the rare trees and wildlife that depend upon them is a shame. She is beginning to wonder if they appreciate what they have. As someone said “they paved paradise and put up a parking lot.” She asked if that is what is going to happen. If they remove two-thirds of the trees, where will the deer and wildlife go. Ms. Hale noted they cannot save this for the deer but they were there first, and said let’s not destroy what they enjoy and what the neighborhood enjoys. She asked the Commissioners to consider it and questioned why people buy lots only to knock it all down, she does not understand it. The way it will be developed she will have two driveways across from her driveway and will be interesting to get out at the same time. She does not know if the Commissioners have been out to see it but invited them to take a look. She spoke about Big Woods and all the trees taken out there noting it is a funny name as there are no woods. Mr. Bieker noted people keep mentioning they should scale it back and noted there are eight houses between the street and the lake at Big Woods and the applicant is only proposing four in the same amount of distance. He thinks that is a lot more reasonable than what has been done in the past; there will be a lot more greenspace, there is hardly any greenspace in Big Woods, and it will not be like that. He thinks they are being mindful on the number of houses and he thinks it might be possible to do more but that is not what is happening. In another area of Chanhassen, he built 12 homes and now there are more trees that tower above the houses. He noted the trees will be replenished and the character of the neighborhood will come back. Mr. Bieker stated they will work with the City to save every tree that they can and he appreciates what the neighbors are saying. Chairman von Oven closed the public hearing. Commissioner Schwartz wonders if the current owner would consider selling the property to the City, County, or a preservation organization such as a Sierra Club or Nature Conservancy, Planning Commission Minutes – July 19, 2022 17 assuming they would get fair-market value of the land. He would ask that of the owner before proceeding. As proposed, he thinks this project is a travesty which is his personal opinion. When he drove into that neighborhood he was blown away and had no idea there was that degree of huge trees on the property and once it is gone it will never come back. He thinks it needs to be rethought. Commissioner Also stated given that her current house and childhood home are within .5 miles of this lot she will be recusing herself from the vote and that they would still have a quorum. Chairman von Oven lives across the lake on Lotus. He has driven through the neighborhood, and Commissioner Schwartz is right, these trees are different. He admitted he struggles a bit and as stated earlier he believes in the rights of a land owner to do what they want with their property within the boundaries of the law. The Lotus Woods subdivision in 2020 had a tree preservation of 29% and in looking at the google map now he thinks it does not look so bad, although they are not the same trees but were placed as a penalty for removing trees. He noted they are big, beautiful trees on Big Woods Boulevard and he does not know where he stands but would like to discuss if there is a right number. He is hopeful that there are ways of moving around of the puzzle pieces such as the infiltration system and downstream effects, which might affect the proposed tree preservation. He spoke about the number from the City plan that says it must be 55% or higher and then paying a tree penalty if it is below that has always been a thorn in a Commission predecessor’s side and has become a thorn in this case and in this neighborhood. Commissioner Johnson agrees, he has walked the street a number of times and noted the area is pretty special. He understands the tree debate but also understands an owner’s right to do what they want with their property. He hopes they can come up with a solution or compromise, whether reducing the lots, changing stormwater, or whatever they can do to save trees. Commissioner Soller feels the same and almost bought a house in the neighborhood; he has been through the area and likes it a lot. This is a tough one and he noted it may be in the purview of the City Council and City regarding conservation but perhaps it needs to be looked at such as increasing the penalty for taking out so many trees. He thinks the City has some leverage but finds it difficult to tell a property owner that they cannot work on this. Commissioner Soller likes the idea of compromise. It does not feel right to Chair von Oven to restrict the number of lots. He believes the number the Planning Commission can affect that does not put him at odds with his beliefs about landowner rights is the tree preservation number. The 2040 Comprehensive Plan requires 55% but has an out clause for certain situations and the proposal right now is 35%. He does not know what it would do to the project for that minimum canopy coverage to remain at 55% and be completely in compliance with the Code. Seth Loken, Alliant Engineering, said the Watershed has stormwater rules and in order to meet those they must treat discharge to the wetland prior to it getting to the wetland and to do that they must clear trees for that infrastructure. Planning Commission Minutes – July 19, 2022 18 Ms. Al-Jaff clarified staff noticed this application with variances. One thing they did with Big Woods and why many cannot tell which trees they saved, the homes were pushed 10 feet closer to the right-of-way to save the trees behind, and they increased the rear yard to 40 feet for the conservation easement. If that is something the Commissioners wish to consider, staff will look at it. Commissioner Schwartz wants to make it clear that he also respects property rights of homeowners and property owners. He asked if it is possible at this stage to think out of the box and asked Ms. Aanenson whether the City could consider purchasing the property and keeping it the way it is. Ms. Aanenson replied at this stage she is not sure it would be appropriate to try although it is something that could have been considered. She clarified the tree preservation ordinance, noting the City has a very rigid tree preservation easement and it is not a one-size-fits-all. She noted they have a lot of deer in town travelling through the whole community and that is something the City wants to keep. Ms. Aanenson said the applicant has indicated if the City wants additional right-of-way, which is taking away some of the trees, the applicant is getting penalized for that. She thinks the best way is to Ms. Al-Jaff’s point and to look at ways to cluster the houses, shift them, figure out those significant trees and try to work around those. She is not sure they would have a willing seller but the City could offer that up although she is not sure the City has those funds right now. She noted it is a bit harder on a smaller scale but there are different zoning techniques that have been employed such as RLM or PUD to save a natural resource. Chair von Oven is not in a position to reject or approve the proposal and asked Ms. Aanenson about the best course of action to send it back. Ms. Aanenson replied they can ask for additional time and make a recommendation to table. Staff could then go back and revisit some issues to see what they can do (i.e.variances, what they can save, etc.) They have 120-days to review and would take the extra 60 days. Chairman von Oven moved, Commissioner Johnson seconded to table this item and allow staff and the developer to work towards achieving a greater percentage of tree canopy preservation. All voted in favor and the motion carried unanimously with a vote of 4 to 0 (Commissioner Alto recused herself from the vote). PUBLIC HEARING ORDINANCE AMENDMENT CONCERNING IMPROVEMENTS AND ENCROACHMENTS IN PUBLIC EASEMENTS Ms. Aanenson noted this is a Code Amendment recommendation. Currently, staff must make everyone that wants to put a fence in an easement area must apply for an encroachment agreement which is a legal document constructed by the attorney. The city attorney is saying these need to go to the City Council for their approval and signature. Staff is creating a website with all easement agreements and development contracts. The purpose of this would be to amend the City Code to say if there is not an active easement, one can put up a fence and sign a document saying if the City would have to activate that easement, the fence owner could take care of that. This would affect 90% of people who must wait 3-4 weeks to get a fence permit. Planning Commission Minutes – July 19, 2022 19 Chair von Oven opened the public hearing. Chair von Oven closed the public hearing. Commissioner Alto moved, Commissioner Johnson seconded to approve code amendment. All voted in favor and the motion carried unanimously with a vote of 5 to 0. APPROVAL OF MINUTES: Chair von Oven noted the summary minutes of the Planning Commission meeting dated June 21, 2022 as presented. CITY COUNCIL ACTION UPDATE: Ms. Aanenson spoke about Night to Unite and said in the future they will see the Avienda plat. ADJOURNMENT: Commissioner Alto moved to adjourn the meeting. The Planning Commission meeting was adjourned at 11:11 p.m. Submitted by Kate Aanenson Community Development Director Prepared by Jenny Potter Senior Admin. Support Specialist