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PC Minutes AppealPlanning Commission Minutes – September 6, 2022 9 Commissioner Noyes noted the emails the City received show two very different extremes with a large property, very well managed, and zero issues. Then they have another one that is a complete crap show with owners there to make a profit, who are not managing it, and there are problems. Commissioner Noyes thinks today the Commissioners are trying to address that side of it and he does not want to address the situation and cause problems on the good side of it which is what they need to think through. Commissioner Schwartz agrees they need to find a way to make exceptions while providing relief for properties like the Bliss family. He thinks they need to focus on how to solve the problem while still making it possible for Mr. Bloomquist to run his business in the manner he would like to given he is such a good property owner. Mr. Young-Walters reiterated his earlier suggestion to put in standards that based on unique characteristics of the property staff can approve a higher overnight occupancy and parking limit. If an individual was not happy with what staff settled on, it would be appealable to the City Council who could look at it and overrule. Commissioner Noyes asked if Mr. Young-Walters is putting himself in a difficult position by granting variances for one property over another. Mr. Young-Walters would likely draft some more concrete standards as guidelines for staff. However, because the owner can appeal to the City Council he is confident in staff’s ability to provide a written reply as to why they were or were not granted an exception. Ultimately if staff is wrong, the City Council will tell them. Chair von Oven stated if the Commission decides to table this, then Mark Bliss will still be waiting. If they table, Chair von Oven would like to find a way to get this back by the next meeting. Commissioner Alto noted nothing would change until January so they would still have time. Commissioner Johnson suggested tabling and getting it back in front of the Commission as soon as possible while giving Mr. Young-Walters time to work on some of the items. Commissioner Alto moved, Commissioner Noyes seconded to table until the next Planning Commission in two weeks. All voted in favor and the motion carried unanimously with a vote of 5 to 0. 2. APPEAL REGARDING ALLEGED ERROR IN AN: ORDER, REQUIREMENT, DECISION, OR DETERMINATION, MADE BY A CITY ADMINISTRATIVE OFFICER ON THE GAYLE MORIN ADDITION - 1441 LAKE LUCY ROAD Ms. Aanenson noted she received an email from the party requesting the appeal which she has not had a chance to look at. The City Attorney has advised regarding the new information that it arrived too late to be addressed. Before the Commissioners tonight are the allegations that were made which is what staff presented their findings on. She wants to be clear on the record that if Planning Commission Minutes – September 6, 2022 10 there are new allegations staff would need to know and would not be able to make a recommendation tonight due to those new allegations. If there is new information this Planning Commission will not be able to make a recommendation as staff would need to go back and address those concerns. The appealing party, Chris Mozina, stated there is plenty of new information in there. Ms. Aanenson clarified to Mr. Mozina that staff can only address the allegations presented as part of his application which is what is being presented tonight and said it will not reflect what came in his email at 6:38 p.m. this evening. Chris Mozina, 6670 Point Lake Lucy Road, said it is interesting what happened in the session before. He stated this is the first time in 30 years that there has been any appeal brought before this committee. There is absolutely no Ordinance specifying the protocols, rules, procedures, forms, which is part of the reason why he as the Appellant (he wants to distinguish that they are not an “Applicant” as they are not applying for anything) and the current process of the Planning Commission as the Board of Appeals is a separate body. This is not a Planning Commission meeting so they must take their Planning Commission hat off and put the Board of Appeals hat on. If they want to hear the whole truth and the entire appeal, he asked them to table, set up the rules just like they did for the Ordinance and shared that he has an appeal and is happy to present it. His opening statement was going to be this. Chair von Oven said if they are going to step by the rules, let’s step by the rules. When it’s time for Mr. Mozina’s opening statement Chair von Oven will invite Mr. Mozina to the microphone. There is an order in which they conduct these meetings whether they are the Planning Commission or the Board of Appeals. Mr. Mozina stated that is incorrect, sir. This is a Board of Appeals meeting and there are no rules specified for such meetings. Chair von Oven said to hear and decide appeals where it is alleged that there is an error in any order, requirement, or determination made by a City Administrative officer in the enforcement of this Chapter. Chair von Oven stated he will follow Robert’s Rules of Order in this setting as he always has and will invite Mr. Mozina to the microphone when it is time, sir. Mr. Mozina replied that is fair enough and thanked Chair von Oven. Ms. Aanenson continued noting the Planning Commission is acting as the Board of Adjustment and Appeals. These appeals are under the Administrative Officer under Chapter 20. Anything to do with a subdivision, as she stated at the last meeting, those appeals would go to the State Court if they have not been exhausted by the City Council. Any alleged error has not been weighed-on yet by the City Council; this subdivision has not been before the City Council and is in holding. The City Attorney reviewed the recommendations in the packet and if they are going to add additional information not in the application they would review that before making findings. Ms. Aanenson clarified the findings are based on the allegations that were made. She read the allegations: Planning Commission Minutes – September 6, 2022 11 1. City presented a unified indivisible proposal that included both a Zoning approval and a Preliminary Platt approval. By virtue of the unified proposal, any defects/allegations exposed in the Zoning proposal by definition pollutes the Preliminary Platt proposal and any defects/allegations exposed in the Preliminary Platt by definition pollute the Zoning proposal. Ms. Aanenson noted staff’s finding is that there are no Ordinance restrictions prohibiting rezoning in subdivisions from being processed concurrently. Cities are required to process and decide such applications in the time provided by State law from the date the applications are received, and processing concurrently is generally necessary to meet the required deadlines. It is routinely done by the City. b. City Staff by not addressing the numerous, specific and legitimate questions raised in a Letter and 3 Addendums from the "Task Force"(all represented in the list of Interested Parties)"(Letter and 3 Addendums) Ms. Aanenson stated for the record in the attachments on the agenda with this application the following items were attached including the staff report, Findings of Fact, application, application narrative, the property tax information for 1441 Lake Lucy Road, the property tax of all interested parties, the affidavit of mailing, and the staff response to the task force questions. Ms. Aanenson stated again the allegation was a failure to “secure equity among individuals in the use of their property.” The staff report addressed pertinent questions relating to the subdivision, there were numerous questions going back and forth over a series of weeks, the questions were answered, and are included a part of the record. c. Will not cause depreciation - The interest parties allege that this finding of fact is in fact not a fact and has no expert factual basis to support it such as a Comparative Market Analysis of adjacent properties. Ms. Aanenson stated the finding is irrelevant to this application which is Chapter 18 not Chapter 20 zoning and is not a required finding for approval of the zoning or subdivision application for the Property under the City Code. d) Allegations from Preliminary Plat Requirements not met and not formally waived by the City Planners Ms. Aanenson shared the findings that the Preliminary Plat Requirements are stipulated by Chapter 18 and are not subject to appeal under 20-28, which applies only to appeals of orders, requirements and decisions made by a city administrative officer under Chapter 20. In any event, the language “officially waived” does not appear in the City Code. Section 18-40 reads “Unless waived by city…” the Code does not state a mechanism for waiving the requirements and staff’s decision to accept an application as complete without a given item, is understood to constitute waiving the requirement. Ms. Aanenson noted staff typically walks through with someone and ticks the boxes they think are necessary for the application. Planning Commission Minutes – September 6, 2022 12 e) Pre-emptive allegation of intended granting of variances without due process to assess the buildability of the property - perching water, soil samples inaccurate: Civil Site essentially described how it is possible to overcome any building obstacle, i.e. through variances Ms. Aanenson stated no variances were requested in the applications related to the property, therefore it is not applicable. f) Zoning Erroneous Findings of Fact, The proposed zoning will not tend to or actually depreciate the area in which it is proposed." Ms. Aanenson noted the finding is irrelevant to this application. It is not a required finding for approval of the zoning or subdivision application for the Property under the City Code. g) Traffic generation by the proposed use within the zoning district is within capabilities of streets serving the property." Ms. Aanenson stated the private street serving the proposed single-family home on the property was previously approved in 1993 to provide access to 5 homes. That street was previously planned and approved to point access to that property. h) According to Sec 20-43 Public Hearing should have occurred prior to the July 19th Planning Commission Meeting Ms. Aanenson shared the finding that Public Hearings for zoning amendments are held at the Planning Commission. No public hearing is required prior to the public hearing scheduled with the Planning Commission on the July 29, 2022. i) "(b) If a development is proposed adjacent to a lake or will affect the usage of the lake, the community development director may require an expanded mailing list for sites fronting on lakeshore where the development would be visible over a large area. The Applicant is responsible for meeting with affected homeowners." Ms. Aanenson noted the findings are Section 20-43(b) states “If a development is proposed adjacent to a lake or will affect the usage of the lake, the Community Development Director may require an expanded mailing list for sites fronting on lakeshore where the development would be visible over a larger area. The Applicant is responsible for meeting with affected homeowners.” The use of the word “may” establishes that this is a discretionary requirement, and the subsequent language provides guidance on when the expanded mailing can be required. The existing lot (Morin property) could have had a dock or water oriented accessory structure, put fence on the property, or the like. Adding the additional lot extinguishes any lakeshore rights of the existing home, so the new home would not increase any lake usage. The proposed subdivision would sever lakeshore rights of the existing home. The proposed subdivision lot would be permitted lake shore rights, thus not changing the intensity of the lakeshore use. The City mailed notification to properties within 500 feet of the subject site which exceeds the 350- foot notification standard required by the State of Minnesota. A Proposed Development notification sign has been placed on Lake Lucy Road for those that lived beyond the 500 feet. Planning Commission Minutes – September 6, 2022 13 j) Preliminary Plat Failed Requirements from Section 18-40: Section 18-40 Preface: "Unless waived by the city because of the limited size and nature of the proposal, the following shall be furnished with a preliminary plat:" Further the City in the proposal to the Planning Commission on page 6 of 16 made the following determination: "The existing conditions survey now appears to meet all applicable requirements from Section 18-40 of Ordinance." However, that is not the case, and the City did not demonstrate a waiver of any of the following requirements which were not met: "An accurate soil report indicating soil conditions, permeability and slope" - The Watershed concluded that this requirement was not met, and substantial evidence was provided at the public hearing on July 19th to support that conclusion. Ms. Aanenson stated they are talking about allegations made under the Subdivision regulations and allegations can only be made under Chapter 20. k) "All proposed retaining walls must be shown on the plan. The top and bottom elevations of the wall must be noted." Ms. Aanenson noted the findings that in Chapter 18, Subdivision Regulations are not appealable. It is noted that City staff responded to this question that the retaining wall elevation was shown on page C3. l) "The style of home (e.g. slab on grade, split entry, lookout, walkout, full basement) must be noted on the plan." Ms. Aanenson spoke about Chapter 18, Subdivision Regulations, which are not applicable under this appeal and said again this has not gone before the City Council for final preliminary or final plat. At preliminary plat the lowest floor and garage elevation were shown. m) "Proposals for street lighting, curb and gutters, sidewalks and boulevard improvements." Ms. Aanenson said Chapter 18, Subdivision Regulations, are not appealable. Access to the property was previously approved by the City Council as a private street. n) "Photocomposite images, artistic renderings, or site elevations which depict the visual impact of the proposed development's design, landscaping, street layout, signage, pedestrian ways, lighting, buildings, or other details that affect land use within the city shall be submitted. Such images and renderings shall be from key vantage points and provide an undistorted perspective of the proposed development from abutting properties, less intensive land uses, and/or from entryway locations. Appropriate levels of resolution for the visualization shall be used from flat shading for massing studies and preliminary design to photorealistic imaging for final design." Ms. Aanenson noted Chapter 18, Subdivision Regulations, are not appealable. o) Remedies Requested Prior to the hearing of the Appeal: (These requests were articulated at a meeting held on August 17, 2022 with City Staff and the City Attorney. It is requested that they again be reviewed and addressed).Immediately halt any further proceedings concerning this development City Staff to answer all Task Force Questions in writing as per the commitment Planning Commission Minutes – September 6, 2022 14 from Kate Aanenson in a 22-minute conversation with Christopher Mozina on July 25, 2022 at 12:14 pm. The City Staff at a meeting on 8.17.22 indicated refusal to answer any previously presented questions or any further questions from the Interested Parties thus again reinforcing the failure to meet the very purpose of Section 20 '"'(g) Secure equity among individuals in the use of their property." Ms. Aanenson noted staff has answered numerous pertinent questions including engineering and planning. She believes staff has answered all pertinent questions received. Pursuant to state law and city Code, the City cannot halt proceedings on a zoning or subdivision application which must be processed and decided within the required timelines. p) Allow sufficient time for the interested parties to evaluate the answers provided by the City, and present additional evidence to support the appeal Ms. Aanenson shared this is not a requirement of the City Code. The City is under specific timelines required by state law and city Code to process and decide zoning applications from the date of the application. The required public hearing was provided allowing Applicants to raise concerns regarding the proposed rezoning. The City Council has not yet weighted in on the preliminary plat, nor the final plat. q) City Planning assistance to ensure all required forms and protocols are understood by Interested Parties so that Appeal is not disqualified on procedural grounds. - At the meeting with City Staff and the City Attorney it was articulated numerous times by the City Staff that the City Staff was unclear how such an appeal should be addressed and what procedures to follow in doing so. Ms. Aanenson clarified this is the first administrative appeal that the City has received in many years. The appeal process is established in the City Code and was provided to the Applicant and only covers items within the zoning ordinance. r) No guidance was received from the City Attorney other than pointing to the limited requirements in Section 20-29. Ms. Aanenson stated the City Attorney represents the City, not the Applicant, and provided the information concerning the appeal process as identified in the City Code. s) City Planning assistance in describing how the appeal will be administratively heard (verbally or in writing, with what submission deadlines). - Per the meeting with the City Attorney and City Staff on 8.17.22, Other than administrative scheduling elements with Section 20-29, there are no documented rules or standards of how an appeal will be heard and dispositioned. Ms. Aanenson said staff provided the relevant provisions in the Code for appeals. The method of disposition is provided in the Ordinance, which provides that the Planning Commission will hold a public hearing on the appeal and decide the appeal. t) Conference to be scheduled with City Staff as per the Zoning Application Checklist. Planning Commission Minutes – September 6, 2022 15 Ms. Aanenson sated this is a statement and no appeal is identified. u) City to provide, as soon as possible, Zoning Appeal Application Form. - Per the meeting with the City Attorney and City Staff on 8.17,22, there is no specific "Zoning Appeal Application Form", but instead, interested parties were asked to use the "Application for Development Review Form". The meeting clearly evidenced that this form did not seem to lend itself to the purpose of an Appeal, and indeed the City staff indicated that in 30 years the form was never used for an Appeal. Thus indicating there really isn't a well-defined Appeal process although this is indeed stipulated as a requirement of Minnesota Statutes.” Ms. Aanenson stated she has been here for 30 years and this is the first appeal she has had. She reiterated one can only appeal from the Zoning Ordinance, the form was never used for an appeal and the allegation indicating that there is not a well-defined appeal process although it is stipulated as a requirement of Minnesota Statutes. While the City did not have a specific Zoning Appeal Form, in the interest of time and urgency as expressed by the Applicant, City Staff recommended using the Application for Development Review Form and indicated it would be acceptable to City staff and Applicant’s use of the form was accepted by City Staff. Ms. Aanenson stated there are many allegations and the City Council has not weighed in on it. Staff recommends the Planning Commission, acting as the Board of Appeals and Adjustments deny the appeal, and adopts the Findings of Fact and decision in the staff report. Commissioner Schwartz read a brief email he sent to staff earlier in the day regarding a question and he is looking for clarification as to why this item is on tonight’s agenda. At the last meeting the Commission recommended only that a single lot at 1441 Lake Lucy Road be rezoned from rural residential district to single-family residential district and subdivision of 4.84 acres into two lots. He stated that is all they did and the recommendation comes before the City Council on September 12 and he does not understand why they are subjecting themselves to a litany of issues that the Council has not weighed in on yet. Commissioner Alto agreed they have already made the recommendation. Chair von Oven asked staff if there is a reason this is on the agenda tonight versus after the City Council meeting. Ms. Aanenson asked that the Commissioners ask the Appellant that question. Commissioner Alto stated there is no historical precedence for appealing a recommendation to City Council. Ms. Aanenson stated that was her comment when the question came up as she has never in 30 years had someone before it was weighed in on. She stated at the Planning Commission public hearing, one must exhaust administrative remedies and the City Council can change the Findings of Fact, add for additional information; however, the Planning Commission made a Planning Commission Minutes – September 6, 2022 16 recommendation which is where they now sit. Within that there are allegations that staff erred in the administration of something, and she stated they believe they have followed their practices. Chair von Oven asked if there is a clear definition of City Administrative Officer. Ms. Aanenson replied engineering and planning staff. Chair von Oven asked if Commissioner Alto is a City Administrative Officer. Ms. Aanenson replied in the negative. Chair von Oven asked if anyone “up here” is a City Administrative Officer. Ms. Aanenson replied in the negative. Chair von Oven turned over the floor to Mr. Mozina. Mr. Mozina apologized for his ongoing passion. He stated it was an amazing weekend, an amazing day today, and they live in an awesome country. He noted they have poured a huge amount of time since March and over the weekend into this appeal and it was a joy for him to study the history related to the Statutes, rule of law, the Constitution, the Ordinances, checks and balances, and it is a privilege to stand here in relative peace under the rule of law to argue the appeal. He asked how many souls chose the harder right than the easier wrong to make our country the rule of law and this appeal possible. He said it is amazing and they are truly blessed. He stated everything presented they have evidence to support and presented a narrative of the appeal as requested by the City Attorney and they are on the docket tonight because the City Attorney gave the City Planners the go-ahead to put it on the docket and to appeal at this point in time which is the least expensive path to choose. He turned the floor over to Don Giacchetti and clarified they will call themselves the Appellant. Don Giacchetti, 6679 Lakeway Drive, noted he and his wife Nancy have lived there for almost 21 years and gave a presentation showing some charts. He thanked the Planning Commissioners for the job they do and noted he will focus on location, location, and freeboard. He stated the information he provides tonight is both true and accurate to the best of his knowledge and ability and without any doublespeak. He asked the Commissioners not to make any decision tonight but to take several days to absorb it because this is a serious matter. He spoke about the video on the City website where Planning Commission meetings are listed along with agenda packets and videos. Mr. Giacchetti noted there were major errors and omissions in the information presented to the Planning Commission at the July 19, 2022 public hearing. The 6679 Lakeway Drive home where he and his wife Nancy live must be considered as an adjacent building which requires at least 3 feet of freeboard elevation from the bio filtration basin (BMP) with a high-water level (HWL) or 100-year event of 974.83 feet per City Policy 1.12 on page 343 of the City of Chanhassen 2040 Comprehensive (Comp) Plan. Mr. Giacchetti took the Minutes, videos, Findings of Facts, staff report, and read it all multiple times. He gave examples noting page 3 of the Minutes from July 19, 2022 noting 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 Findings of Fact. He Planning Commission Minutes – September 6, 2022 17 gives this a thumbs-up as it makes sense to him. He clarified the clippings he is showing on screen are exact screenshots. On page 5 of the City Staff report it says staff notes that the proposal is consistent with the Comprehensive Plan which Mr. Giacchetti is not familiar with as a normal citizen. On page 2 Findings of Fact and Recommendation he noted it says the proposed subdivision is consistent with all applicable City, County, and regional plans including but not limited to the City’s Comprehensive Plan. He shared page 3 of the Minutes where engineer Matt Sheehan spoke and he noted he could not find a Matt Sheehan but eventually found out his name was Mike Sheehan who is a certified and licensed professional engineer who joined Civil Site Group 6 months ago and is a very qualified individual. He noted Matt Pavek stated he feels they have the puzzle of drainage solved and going into final plans they will be able to refine all those requirements. Mr. Giacchetti has questions about this. In the staff report it talks about the City’s Surface Water Management Plan which says the City requires 3 feet of freeboard between a building elevation and adjacent ponding features. He noted the design only provides 2.31 feet of freeboard to the existing home on adjacent property 6675 Lakeway Drive. Mr. Giacchetti shared from the Minutes that Mr. Seidl noted the development appears to meet all the City rules and asked why he does not make it definitive. It was also mentioned the Commissioners are not experts and he tries to do a fact check on what he agrees to be true and accurate. After the aforementioned comment, another comment was made in the Minutes that said there is only one water expert in the room tonight. Mr. Giacchetti understands that if one is not aware of who else is in the room but after reviewing he noted there are at least four other experts and feels the record ought to be corrected for that. The experts include Matt Pavek (Civil Site Group), Kevin Teppen (Senior Project Manger and certified/licensed Landscape Architect), Mike Sheehan, and Commissioner Erik Johnson who is a professional engineer who works for EVS as a Senior Geotechnical Engineer according to his LinkedIn page. Mr. Giacchetti shared that Mr. Commissioner Johnson had some employment with Haugo Geotechnical Services. He reiterated there are at least four other experts and noted comments were made that the engineering design is trying to mimic the natural design, mimic Mother Nature, and he always has questions about mimicking something. Is it a knock-off? Is it real? Did they get it as good as the original? Mr. Giacchetti noted when making a decision the things to focus on need to be both true and accurate. However, it is also critical to be aware of what is absent and what is not stated. He showed a page on screen showing all the things he did in the Minutes relating to water and freeboard issues. Mr. Giacchetti searched for a URL that brought him into the Comp Plan noting the large amount of pages the Commissioners must get their arms around and he compliments them. On page 2 he found Mayor Elise Ryan, Dan Campion, and Jerry McDonald who are three of the five members on the City Council who approved/adopted the Comp Plan in 2020. In Chapter 9 it speaks about the local surface water management and found Elise Ryan, Dan Campion, and Jerry McDonald were all Councilmembers in 2018 on the report. He noted Policy 1.12 says require building elevations to provide at least 3 feet of freeboard adjacent to ponding areas and floodplains for all development and redevelopment or when drainage facilities are constructed for an area. He showed the Staff Report from July 19 on screen which spoke about 6679 Lakeway Drive and stops at ponding features which is a major omission, and the Planning Commissioners were not give the benefit of what the policy states. They were given an outlined, truncated version that said not to worry about the property. Mr. Giacchetti showed an elevation infographic chart on screen and spoke about freeboard calculations, BMP, anchors, and how it ties into Policy 1.12 and the proposed house. He noted they are now introducing an artificial bio drain because they want to build a home which has some impervious surfaces introduced into the Planning Commission Minutes – September 6, 2022 18 natural bio system. This means they must calculate through water CAD software how big it has to be. All of the natural filtration that used to flow down the hill is now being concentrated in the artificial bio drain and is supposed to seep down into the ground. By Mr. Giacchetti’s rough calculation, he comes up with 29,922.22 gallons of water. Commissioner Noyes asked about the 60x60 foot pad shown on screen, and what is the water capacity of that area. Mr. Giacchetti does not know but is sure the water CAD model would calculate that and the water coming off impervious surface from the driveway. Commissioner Noyes noted when Mr. Giacchetti is doing those, he is comparing an unknown to his estimated capacity of the BMP. Mr. Giacchetti estimated by dimensions as it is 80 feet long, 20-30 feet wide, and 2-3 feet deep. Commissioner Noyes said that is right but it takes a professional engineer to do that where the 60x60 foot pad is just a piece of land at this point in time. He noted Mr. Giacchetti is focusing on the BMP and they are not focusing on what is there now and the carry and capacity absorption of that which is a little misleading Mr. Giacchetti replied it was stated that they were trying to mimic what is there now and the existing condition which is what they analyzed. He spoke about the existing Morin home, the amount of gallons of water, the freeboard infographic chart, and stated they are not safer, he has a big bathtub in front of his home, and they are 50-60 feet away. Mr. Giacchetti does not think they calculated for all the water coming outside the western portion of the map on screen and noted their water CAD models do not do that. He noted water is coming down from Lake Lucy Road, down Lakeway Drive, gets to his private drive, and comes down. He heard that it is physically impossible to have 3 feet of standing water coming off that little pond and said they are building an artificial bio drain that has 30,000 gallons which is more than 3 feet of standing water right over the banks of wetland A. He showed photos on screen of cars underwater on 494 noting he lived through the 1986 super storm and his business had water up to the first level of the racking system. He is sure the engineers and designers did the best they could but did not anticipate the worst case. Mr. Giacchetti has two water experts that will comment on this. Commissioner Schwartz appreciates the effort of Mr. Giacchetti’s presentation and asked if any part of the presentation addresses the recommendation that the Planning Commission made to the City Council. Mr. Giacchetti replied yes it does. Commissioner Schwartz asked if Mr. Giacchetti can jump ahead to that. Mr. Giacchetti stated the Planning Commission recommended to adopt all of the City’s findings that everything is according to the rules and consistent and we’re moving forward. Planning Commission Minutes – September 6, 2022 19 Commissioner Schwartz replied no, sir, that is not true. What the Planning Commission recommended to the City Council was that one lot be subdivided into two lots, period. That recommendation is coming before the City Council at its next meeting. Until the City Council approves, modifies, or denies the Planning Commission’s recommendation, all of this information is just information. There is nothing that the Planning Commission can do tonight to deal with this because the administrative process as not followed through to its logical conclusion. Chair von Oven recognizes getting all this information on the record which he is all for. He agreed there is a certain limit to what the Planning Commissioners are allowed to decide on tonight. At the beginning of Mr. Giacchetti’s presentation, he asked them not to make a decision tonight, except an appeal is before the Commissioners and stated he has yet to hear anything that would make him not decide to deny the appeal. He fully admits what Mr. Giacchetti is speaking about has merit. On tonight’s agenda, and the powers this committee holds in this particular session, he would appreciate if they can focus on any of the things they have been asked to come together on tonight. Mr. Giacchetti is sympathetic to what Chair von Oven is saying and noted this is what he read and asked them to tell him if he is wrong, the City Planning Commission at the July 19 meeting voted 5-0 to adopt as a recommendation to go on to the City Council, all of the Findings of Fact, all of the City Report, and everything else. In there, Mr. Giacchetti showed the red X’s which are major error and omission and thinks this body would have the ability to rescind because if they are not presented with all facts and true and accurate statements, the Commission did not have the benefit of making an informed decision. He thinks 6679 Lakeway Drive being excluded as “not an adjacent home” (and he has two experts that will attest) is major and does not comply with what the Commission approved as the Findings of Fact. Commissioner Noyes clarified the Commission did not approve Findings of Fact. They approved a subdivision based on facts and that they spent a lot of time reading, listening, and they did not vote on Findings of Fact. They voted on one thing: should the subdivision happen or not and it has not gone any further than that. Mr. Giacchetti keeps going back and saying the Commission got the wrong facts or omissions and that is Mr. Giacchetti’s opinion. Commissioner Noyes stated they are in the first inning of this whole process and have not even gotten the subdivision fully approved. Beyond that, every aspect of that project will go through the City, City Engineers, any variances will come to the Planning Commission, then it will go to the City Council. Commissioner Noyes said Mr. Giacchetti is kind of giving them a business pitch and noted Mr. Giacchetti does not like the project and Commissioner Noyes gets that. Mr. Giacchetti disagrees, it is not that he does not like the project. The issue is very simple: the Commission based their decision to move it forward on a subdivision based upon the City’s Findings of Facts, and the recommendation in the City Staff Report. That is what the Minutes reflect. Commissioner Schwartz thinks Mr. Giacchetti is incorrect. There was a significant amount of discussion and the meeting lasted until 11:30 p.m. where there was conflicting information between what City Staff and engineering experts were saying and what the task forces experts Planning Commission Minutes – September 6, 2022 20 were saying. Because of those conflicts the Planning Commission is not in a position to make a decision on that, so they limited what they recommended to the City Council to only recommend subdividing the single lot that currently exists into two lots, that’s it. Mr. Giacchetti stated it was to recommend the subdivision according to the plans that were specified. Chair von Oven stated one of the constant battles for everyone in the City is educating on how things work. He has learned that there is a beautiful system of checks and balances. He is not a water expert, he is a computer engineer, so when the City tells him they think they have this puzzle figured out, the reason this body is enabled to move forward with a recommendation is because they can recommend to divide into the sub lots but at the end of the day a building permit or some engineer will have to sign off on a plan that meets fully the City’s plan. If the puzzle is not fully solved today and this body had to wait until every puzzle was fully solved, nothing would ever get done in the City. Chair von Oven clarified this body recommends to the City Council what they believe should happen to this property but it cannot happen unless every rule is met. Therefore, if what Mr. Giacchetti is sharing tonight is true, there will be a barrier at which this project will stop. He noted under his Robert’s Rules of Order hat, the Commission is being presented with an appeal with an alphabet of allegations. If any of those allegations tonight are what Mr. Giacchetti is speaking to, Chair von Oven asked him to please point it out to the Commissioners so they can make a decision on what is before them tonight. Chair von Oven thinks all of this information is very pertinent for City Council in making their decision going forward and he will tell Mr. Giacchetti the City Council also holds the City to the same standards. These things will still have to fall in order against the regulations. The Planning Commission’s recommendation is that if all these boxes check when the time comes, they are in favor of subdividing this lot. He stated that is the difference between what is being litigated tonight by the Appellants. Chair von Oven asked to focus the rest of the presentation on those items. Mr. Giacchetti thinks what was concluded right before the 5-0 vote, the Commission heard from a water expert who said that it meets everything which was not true and accurate, we will get there, and we have solved the puzzle. What was not introduced and was absent was that Mr. Pavek pointed to the chart and said the -4.4is not adjacent, does not really matter, and Commissioner Schwartz asked if that is a non-issue. Mr. Pavek responded that is a non-issue. Mr. Giacchetti noted it is a big issue and he is trying to help the Commissioners out tonight, there is a fly in the ointment called Policy 1.12 which was alluded to and was then ignored. On page 7 of the Riley Purgatory Watershed there is a chart that defines what an adjacent facility is, talks about the bio drain, and noted it is common sense. It says “to achieve low floor elevation for the adjacent structure at 6679 Lakeway Drive” so it is being called an adjacent structure. However, the Commission was not given that information and were told it is not adjacent, there will be water flowing around it, and he said that is a major elephant in the room. He noted it is an arbitrary and capricious kind of decision at 5-0 to forward this on to the City Council. He could not find this document on any City websites, Minutes, referenced in the video, it was an outline that stopped at 3 feet above ponding levels and did not mention this adjacent facility. They have a qualified, acknowledged expert and that was shielded from the Commissioners. The whole point is that if the Watershed defined 6679 Lakeway Drive as an adjacent property and the City Planning Commission Minutes – September 6, 2022 21 says everything is hunky-dory because we are ignoring that adjacent property, but it is in violation of Policy 1.12. Full stop. Go get it right, go redesign it, go do something else because the plans do not comport to that. That is not what Mr. Pavek said, he said it was not an issue and it is right there on video. He makes the allegation that the City has to have page 7 and 8 from the Watershed. He asked why does the City Staff not tell the Planning Commission about the elephant in the room and ignore Policy 1.12. Mr. Giacchetti is here to tell the Commission this is a major issue and he is trying to spare them some embarrassment. He thinks they have an opportunity to study what he is saying because this is a major, major issue. He will send the Commissioners his complete “deck of cards” and they will see. Chair von Oven asked if 6679 Lakeway Drive is adjacent to this stormwater facility and does not conform to Policy 1.12 of the stormwater management guide. Mr. Giacchetti replied yes, that is his allegation. Chair von Oven asked if that is on the docket tonight and asked which letter of the allegations it falls under. Mr. Mozina replied they will see it as a combination of allegation f and c. He approached the podium and stated he thinks the Commission saw from Ms. Aanenson that in the narrative describing the appeal, Mr. Mozina asked for clarifications. The City provided none and the City Attorney provided none other than to point to 20-29 which has no specification for how this proceeding would be carried out. Mr. Mozina in what he thought was good conscience working all weekend and up to 5:00 p.m. providing the evidence that supports the appeal. Once the Commissioners hear that evidence along with Mr. Giacchetti’s evidence, they will be compelled to reverse their adoption of the Findings of Fact provided by the City Administrators. He clarified the City Administrators birth the Findings of Fact, the Planning Commission adopts them, and the City Council approves them. There is more to what they approve than just a zoning feature because they approved a preliminary plat. Chair von Oven noted the Planning Commission is the recommending body and do not adopt it. Ms. Aanenson clarified Chapter 18, the subdivision regulation cannot be appealed because it has not gone through the process. All the Planning Commission has done is give recommendation. Mr. Mozina stated that is Ms. Aanenson’s opinion. Ms. Aanenson replied that is the City Attorney’s opinion and Mr. Mozina will not listen when the City has talked to him about this. He can only appeal the zoning administration which is Chapter 20 and that is why they are here. Mr. Mozina stated they will hear more about that and within the Ordinance itself it talks about the risk when an Applicant tries to file a preliminary plat and a final plat at the same time because if one fails the other fails. That is a precedent-setting section within the Ordinance which says “at your own risk.” If one does a zoning application and a preliminary plat application in the same unified application, one pollutes the other. He held up a packet and stated “here is what you Planning Commission Minutes – September 6, 2022 22 approved,” and said there was a lot of discussion during the Planning Commission meeting and they were all looking at each other “what are we approving tonight?” Mr. Mozina stated they did not approve accepting the deeding of the right-of-way on Lake Lucy Road. He wants to point out in the appeal process they are here to hear and decide appeals where it is alleged that there is an error in any order, requirement, and it was read earlier in the meeting. Mr. Mozina asked if there is any time specified in there and does it limit when he can allege that an error has been made? Chair von Oven replied not that he knows of. Mr. Mozina stated then they are okay being here then. Chair von Oven noted Mr. Mozina is absolutely okay being here. He wants to be clear why he even asked the question. He asked to say for a moment that his eyes have been opened and the light has shined upon him, he still cannot do anything about what Mr. Mozina’s appeal is tonight. This is why they don’t want the Commission to decide tonight, however he must look at what has been appealed and decide whether or not to make a decision. If Chair von Oven looks at what Mr. Mozina has appealed at this moment, to this body, on this project, it does not include what is shown on screen. Mr. Mozina stated they are talking about accurate soil samples, as well. Chair von Oven asked Mr. Mozina to please give him the letter that this points to and he will work to support Mr. Mozina. He asked to point to the allegation before this body tonight that specifically says this and he can look at it with different eyes. However, until Chair von Oven sees that he cannot. Mr. Mozina said now they are back to the beginning. He asked (and Ms. Aanenson showed it on screen) for clarity as to what he should bring to this appeal. He noted that is in the allegation. Commissioner Alto asked if Mr. Mozina is talking about the allegation that the City Attorney not providing more information. Ms. Aanenson stated, as she understands it, most allegations fall under the zoning and that is not what they can do. Mr. Mozina thinks it is allegation labeled “u.” Ms. Aanenson stated the reason the City disagrees with the Appellant is because the subdivision has not been exhausted yet. Mr. Mozina stated allegations labeled “u”(City provide zoning appeal form), “s” (City erred in not providing assistance with appeal or pre-meeting to address the format). Mr. Mozina clarified it is alliteration “s”, “u”, and “v” (the accurate soil samples). He noted allegation “v” was not in the narrative, but that this does not mean it is not valid. Ms. Aanenson pointed out that is a subdivision requirement, as well. Planning Commission Minutes – September 6, 2022 23 Chairman Chair von Oven opened the public hearing. Mr. Mozina tried to stick to the narrative describing the appeal and listing the items in order, but then he added additional allegations. Again, there was no restriction on him adding additional allegations, evidence, and documentation to support the appeal. Commissioner Noyes noted Mr. Mozina did it at 6:38 p.m. today. Mr. Mozina stated he worked 20 hours this weekend. Commissioner Noyes understands but Mr. Mozina needs to understand what the Commissioners are up against and 22 minutes is not enough for them to review it. He noted everyone on this Commission has read all of the documents, whether it is the 2040 Comprehensive Plan, they have spent countless hours just like Mr. Mozina has. The expectation to put something forth 22 minutes beforehand and for the Commissioners to digest it and assume it is all accurate and truthful is not a fair assumption. Mr. Mozina went back to Commissioner Alto’s comments that they need to take the emotion out of it. Commissioner Noyes replied they need to focus on procedure. Chair von Oven stated there is a procedure, they will follow it, and that is his job. Mr. Mozina is speaking for the public comment portion and asked him to please bring his comments forward in a timely fashion. Mr. Mozina stated the Board of Appeals summary choosing the harder right than the easier wrong. When looking at the packet he sent today, he put a table of allegations, some of which are specifically designated to zoning. He expects the Commissioners to be shocked by his first example because it is directly related to the zoning Ordinance and there is a direct Finding of Fact provided by City Staff that is actually impossible to state. As discussed, checks and balances are crucial at each stage of the process and stakeholders are the checkers and the Commission talked pretty extensively about the check and balance to look for. The answer was the next step in the process and Mr. Mozina thinks that is the wrong answer and will show the reason in the presentation. There is a lack of protocol, rules, procedures, and Ordinance clarity in the Board of Appeal process. He said the Board must consider what is true and accurate, what is absent or not stated, the whole truth. The appeal finds its justification and direction from several north stars, chief among them is Section 20-2 “secure equity among individuals in the use of their property.” Mr. Mozina said Section 20-2 is the section in the zoning Ordinance. When Mr. Giacchetti talks, he is talking about his equity interest among individuals in the use of their property and that evidence applies here. The Board of Appeals has obligations as an independent trier of fact. City Staff gives birth to facts, just like a police officer with laws to enforce they arrest someone with a set of facts, it goes up to the district attorney who either creates a grand jury or decides to prosecute. There is a finder of facts, someone that adopts the fact, and then it goes to the City Council for approval. Within the birthing of facts that is where they have a Planning Commission Minutes – September 6, 2022 24 problem, to Mr. Giacchetti’s point, the Commission did not see all the facts, and nobody pointed out specific Statutes and sections of the Ordinance that were missed. He is going to point those out tonight. Mr. Mozina said the Board must not vote on the recommendation provided by City Staff as it is inappropriate, incomplete, and premature. Based on the fact that there are no rules describing when documentation is required or what type of documentation is required. Allegations are serious and compelling and deal with issues of public safety like Mr. Giacchetti was going to get to. If that bio filtration basin collapses as showed in the pictures that will all go into Mr. Giacchetti’s house. It also deals with questions of ethics. The allegations will require serious, dedicated time to investigate, likewise as a trier of fact the Board’s written responses to each allegation should be thoughtfully considered and documented for full transparency. It is the Appellant’s belief that the presented allegations warrant the Board of Appeals reverse and/or revoke the Planning Commission adoption of the 1441 Lake Lucy Road development proposal rendered on July 19, 2022. Mr. Mozina stated as mentioned above, the Board, City, and Appellant have to keep track of over 30 allegations and answers. He stated it feels important to review several examples of the allegations up front and then examine more closely the inappropriateness of the City Staff’s Recommendation to this Board and the very nature of checks and balances as designed into the U.S. Constitution, Minnesota State Statutes, and City Ordinances. He spoke about Allegation “c”, Allegation “w”, Allegation “g”, and Allegation “o” in his packet of information and said these examples serve to further illustrate why it is wholly inappropriate to adopt the City Staff’s recommendations presented prior to this meeting. The City Staff’s responses to the initial narrative describing the appeal are misplaced, inaccurate, insufficient, and premature. Mr. Mozina stated the City Staff provided their recommendations without notifying Mr. Mozina (although they sent an email, fair enough) he clicked on the agenda and then saw the recommendations. He asked when did that come out? On Thursday. Mr. Mozina worked all day Friday, Saturday, Sunday, and Monday so he was prepared to not waste the Commissioners’ time. He spoke about allegation “c” which states “will not cause depreciation” and said City Staff responded that this is irrelevant to this application. This response is categorically incorrect and as stated in the City Staff’s birthed Findings of Fact on page 22 of the July 19, 2022 agenda packet, it is the City’s statement that the zoning Ordinance directs the Planning Commission. Mr. Mozina showed a slide which he took from the proposal adopted on July 19 where it says the proposed zoning will not tend to add to or actually depreciate the area in which it is proposed. He stated those are adverse findings that they were directed to review. Mr. Mozina spoke about letter f which makes it clear that the Planning Commission must assess whether the proposal meets all traffic and street requirements and said the Appellant alleges that the private street cannot accommodate emergency fire vehicles and that the Applicant did not address that in their proposal. Mr. Mozina stated the tone of City Staff’s response is concerning and the zoning Ordinance directs the Planning Commission to consider adverse effects, so it is clearly relevant. He stated he believes the City’s own words show that the allegation is relevant otherwise why would it be included to begin with? Why put something into the Findings of Fact if it is not relevant? Ms. Aanenson asked to clarify again, that the findings relate to the things that are applicable in Chapter 20 versus Chapter 18. What is in the subdivision Ordinance cannot be before the Planning Commission today because it has not been weighed-in by the City Council. She stated that is the reason those findings are not aligned with what Mr. Mozina is saying and that is still Planning Commission Minutes – September 6, 2022 25 the breakdown of communication here. She stated clearly, they will have to bring things back and clarify that. Mr. Mozina stated he must have missed that completely because he thought there was a rezoning. Chair von Oven clarified there has not yet been anything. Mr. Mozina understands there was a birthing, an adoption, and they have not yet had an approval. He gets that. Chair von Oven noted there was a recommendation from the recommending body and none of this is relevant until City Council weighs in. He understands what Mr. Mozina is saying but clarified they are not there yet. Mr. Mozina stated the Planning Commission is not there yet and that forms the basis of appeal because they are disagreeing on whether the Commission thinks this appeal is timely right now. They are not actually disagreeing with what he is saying, they are disagreeing on whether they think it is timely. Chair von Oven replied the Commission is not in a position to agree or disagree with what Mr. Mozina is saying because it is not timely for what they are here to decide on this issue. Commissioner Schwartz said based on Ms. Aanenson’s repeated statements, he fails to see how any of this is relevant at this time. He is happy to sit here and listen to the allegations but there is nothing the Commission can do about it at this time because if and until the City Council makes a decision on the recommendation to subdivide that lot into two lots, all of this will come back to the Planning Commission at some point in the future. Why they are spending tonight to hear these allegations, as interesting and important as they might be, it is not appropriate at this time to hear them. Mr. Mozina noted the City Attorney already granted him that right. Chair von Oven replied that is correct and they are holding a public hearing right now and Mr. Mozina is free to speak. He noted he will end the public hearing at 10:30 p.m. Mr. Mozina said every single word written in his presentation has meaning. Ms. Aanenson clarified Mr. Mozina is talking about the packet he sent earlier in the day. Mr. Mozina replied in the affirmative. The action the Commission can take is to reverse their adoption and not send it to the City Council. Chair von Oven noted in the earlier presentation the Commissioners were asked not to make a decision and clarified that Mr. Mozina would like the Commission to approve the appeal tonight. Planning Commission Minutes – September 6, 2022 26 Mr. Mozina would like, as Mr. Giacchetti said, to spend the time studying what is here and then render a decision. One of those possible decisions is to withdraw what they are sending to the City Council and instead have the Applicant go back and do what they should have. Mr. Mozina said crucially, City Staff did not address the actual allegations on the merits. The erroneous response from the City is further evidence as to why the Board should not and cannot adopt the appeal recommendation City Staff provided. Instead, the Board will need to thoughtfully consider all of the allegations throughout this appeal and provide its independent written response to each allegation on the merits. Mr. Mozina said the finding that the proposed zoning will not tend to or actually depreciate the area in which it is proposed is simply impossible to prove at this time, both because the building site has not yet been proven to be viable based on the need for accurate geotechnical analysis required by the Applicant, and because there is no actual representation of any kind provided by the Applicant as to the style or image of the home to be built that in turn would allow for a comparative market analysis. Regarding photo- composite images, it is not refuted, it was not provided, and a preliminary plat was sent for adoption and approval. Furthermore, the Appellants request that the Board also consider the likely results of a conditional probability or decision-tree analysis, specifically to determine the probability of success. This means the probability that the site is buildable, finding a builder, that the builder can complete the project profitably without walking away or creating harm, as well as the probability of what could be built would meet the same level of market values as the surrounding homes. Those two things would be methods by which they could determine whether the surrounding area would be depreciated. The above arguments are directly relevant under the zoning Ordinance by the City’s own admission and mandate the Board to accept the appeal and reverse the Planning Commission adoption of the July 19, 2022 Applicant proposal. Mr. Mozina noted an additional allegation not present in the narrative, going forward this will be called item “w”, it is alleged that Commissioner Erik Johnson, a Planning Commissioner, had a potential conflict of interest which he did not disclose, in terms of his prior employment with Haugo Geotechnical Services. By not disclosing that potential conflict of interest the Appellant believes his vote, and the entire vote of the Commission present should be voided. Haugo’s work was clearly deficient as indicated by the Watershed and the Task Force. Mr. Mozina asked Commissioner Johnson if this is humorous. Commissioner Johnson replied in the negative. Mr. Mozina noted he would go to one of the sections that talks about misdemeanors in the enforcement of these odes. Mr. Mozina continued saying according to Mr. Seidl, the geotechnical work is required to prove the viability of the building site. It is also noted by the Appellant that the number of companies in the local area that specialize and provide employment, in the field of geotechnical engineering is limited. The City requires the resumes of all prospective Planning Commissioners; therefore the City knew or should have known that a potential conflict of interest existed. Commissioner Johnson should have recused himself but he did not. It is therefore alleged that the vote is invalid. An excerpt from Commissioner Johnson’s LinkedIn page was shown. Chair von Oven asked Mr. Mozina if he will be adding additional comments to the packet sent to the City or whether he will be reading from the packet the rest of his allowed time. Does Mr. Mozina have anything to add beyond what has already been submitted in the packet? Planning Commission Minutes – September 6, 2022 27 Mr. Mozina does not believe that there is. He continued saying traffic generation by the proposed use within the zoning district is within capabilities of streets serving the property. The Appellant alleges that there are two streets in question but only one was talked about which was the private street. The packet received also described a 7-foot right-of-way that the Applicant was proposing to provide on Lake Lucy Road. The first private street requires and does not currently meet traffic requirements for emergency vehicles as required in section 18.57.U. There appears to be a component of the Applicant’s proposal that related to Lake Lucy Road, which cannot receive collector street designation under Section 20-5 to be designated as a collector street and in certain situations qualify for federal maintenance assistance. The last remaining right-of-way of 7 feet is required fronting the Morin property. Mr. Mozina spoke about process noting overlap between Section 20-5 and Section 18-57: one talks about collector streets, and one talks about the amount of right-of-way required. He asked them to see how the Section 20 zoning and Section 18 integrate with one another and noted it is important to recognize that and that the current Section 20-5 is actually incorrect. Because this right-of-way does not exist on the Morin property stretch of land, City Ordinance as documented right now is incorrect and Lake Lucy Road is not a collector street. That whole process requires investigation and an answer as to the exact motivation with respect to the granting and deeding of that 7-foot right-of-way. Mr. Mozina’s allegation is normally when someone is going to deed something it needs to be accepted and recorded. It is a decision and was included in the packet. In looking at the Minutes and in the video when the Commissioners asked what they were voting on that night, they did not vote on adopting the acceptance of a deed, it was never mentioned, the road was not discussed, the right-of-way was not discussed in the Minutes nor in the video. He asked if the Commissioners realized they were accepting that? Commissioner Schwartz noted it is irrelevant at this point in time. Mr. Mozina continued saying it is alleged that the summary of the requests for the Planning Commission to adopt on July 19, 2022 was incomplete, therefore erroneous and requiring reversal and/or revocation of the adopted 1441 proposal. Specifically, the Appellant alleges that the Applicant’s deeding of a dedicated 7 foot right-of-way to provide for a consistent right-of- way width along Lake Lucy Road, requires an approval to record that deed on behalf of the City. This deeding would directly impact collector streets as reflected in Zoning Ordinance Section 20-5 and it is alleged that the City Ordinance is currently inaccurate because it lists Lake Lucy Road as a collector street when without the deeded right-of-way, the Appellant alleges it is not. Mr. Mozina stated in Section 18-57 for right-of-way measurements they will see that 7 feet is required in order to get the 80 feet required. He spoke about a series of email exchanges between himself and Ms. Aanenson and he asked if the right-of-way deeded by the Morins to the City survives if the City Council denies the subdivision zoning application? He stated, no it does not. Does the City potentially lose out on anything of value now or in the future if the City does not get the right-of-way from the Morins? The response is if the City has to acquire it in the future, they would likely have to pay for it. The Appellant’s concern is that there needs to be consideration, investigation, and a documented response as to why an investor would give something away unless value was received from that, and whose expense was that value created by? Mr. Mozina spoke about the allegation on inaccurate soil report indicating soil conditions. He stated it is simply inappropriate for the City to make this recommendation or suggested Planning Commission Minutes – September 6, 2022 28 action. He stated the actions and activities of the City Staff are what has given rise to this very appeal. They are accepting a recommendation to dismiss this from the very group for which the Appellant believes the birthing of the Findings of Fact created errors. Of course, the City Staff can defend itself, and Mr. Mozina shared they live in a beautiful City and Ms. Aanenson is responsible for that in a large degree over thirty years. That does not mean Mr. Mozina cannot credibly challenge her. It would be wholly inappropriate for this Board to vote on this tonight much less vote on the recommendation from the staff in question as it would be in direct conflict of the purpose and intent of Section 20-5 and the appeal process. It would put in jeopardy any semblance of impartiality of this Board of Appeals which is designed as a check and balance and to act independently in listening to and evaluating the facts of the allegation of this hearing. The Appellant respectfully requests that in all fairness to all stakeholders and in keeping with the intent of Section 20-29 that this Board take a prudent amount of time as allotted to investigate, compose, and render a truly independent response to this appeal. They have 15 days, and the response is in turn appealable to the City Council as mentioned by the Chair at the beginning. The Appellant tonight can appeal to the City Council even before they look at what was adopted on July 19, 2022. The appeal process objectively says that all of this discussion is relevant tonight and the Board can make a decision not to go forward in sending to the City Council something where there was a vote with a potential conflict of interest and where there was a right-of-way granted without true transparency of any conversation whatsoever. Mr. Mozina stated the City Staff nor the Board of Appeals has actually heard the full appeal yet and asked how can they adopt a recommendation based on the narrative of appeal when they have never heard the appeal? The responsibility of the Board is to hear the whole appeal dispassionately but with extreme passion as a trier of fact and a check and balance. Previously they may have mistaken his passion as feelings or emotions. As Mr. Giacchetti stated, this is not about being resistant to change, this is about understanding how change should happen properly in a country that is governed by the rule of law and by Ordinances which are all there for a purpose. The passion comes from the Appellant feeling like they were being ignored. In looking at the responses from Ms. Aanenson answering all pertinent questions; that was not the question. The Appellant sent a document with 130 questions and nobody answered them. Mr. Mozina asked when is the Applicant responsible for holding a public meeting? In the zoning section there are two parts and Ms. Aanenson showed part b. Under the zoning Code the Applicant is required under the Zoning Code and Chapter 18 to hold a meeting with the public prior to the public hearing. He noted they violated that and actually committed a misdemeanor under Section 18 by not holding a public meeting. What did they do afterwards? On July 26, 2022 they called a meeting. Mr. Mozina showed a chart on screen noting he feels this one is important as they keep thinking this check and balance can be something further down the line. He gave an analogy in keeping with building, noting if one puts a foundation down building Code requires an inspection of the foundation before they start framing. He asked should they condition the foundation levelness until the final inspection? Mr. Mozina asked can they condition an accurate soil sample and put it into the final plat section of the process when it is required in the preliminary plat? That is like doing the foundation inspection while the framers are framing. The way the Statues are written, they are risk-averse, they must do things now otherwise they cannot move forward. For engineering people there are requirements to hit a milestone and if one does not hit those they must go back to the beginning. Mr. Mozina also wants to highlight the joint stakeholder analysis noting one person missing is the people that are the checks and balances to the process. The way City Staff, Planning Commission, Board of Appeals, Applicant, and other Planning Commission Minutes – September 6, 2022 29 citizens all have to get involved as stakeholders. He noted they are here appealing tonight because they feel this should not be sent to the City Council because of all the errors they are pointing out right now. He asked to send it back and not send it forward. Mr. Mozina stated once it goes to the City Council everything takes on a different dimension of cost for him as a taxpayer. Appealing to a district court gets expensive quickly and all of a sudden one is out $10,000 just asking an Attorney to read 3,000 pages of information. Mr. Mozina stated this is the time for “us as taxpayers,” for their appeal to be heard. Every step the Board sends it forward costs more money and more time. He is 62 and does not have 30 more Labor Day weekends left. Chairman Chair von Oven closed the public hearing. Chair von Oven thanked them for their passion tonight noting they all may have disagreed on different things and he appreciates people staying patient with the process and staying with it. He asked if any fellow Commissioners have comments to offer up. Commissioner Schwartz thanked the Appellants for their presentation and wants to be sure they do not mistake his position on why they are here tonight as a dismissal of the concerns and allegations. In his mind they are two very distinctly separate issues and he is not dismissive of those concerns and has no intention of minimizing them. Commissioner Schwartz made one correction to a statement that was made noting the Commission did not approve the 1441 Lake Lucy Road proposal as indicated. The other concern regarding a potential conflict of interest, he will not judge that one way or the other, but the vote was unanimous and even if Commissioner Johnson had recused himself it would not have changed the outcome. In his mind, the question is whether any of these allegations relate to or impact the Commission’s recommendation to the City Council to subdivide a single lot into two lots? In Commissioner Schwartz’s view, all these allegations tonight have no bearing on what is before the City Council and until they act on the recommendation, this appeal is inappropriate and ahead of its time. Again, he said that does not mean the concerns aren’t valid and should not be presented. The Commissioners are bound by order and process just as staff and City Council are but until the City Council makes a decision, the recommendation to subdivide one lot into two, the information is interesting, but he does not what bearing it has. Commissioner Alto asked to add in terms of the conflict of interest, they are all volunteers but also took an Oath of Office and swore to uphold the Constitution of the State of Minnesota and the United States. They regularly recuse themselves from cases where they know there is a conflict of interest and that is a practice the Commissioners regularly honor. Chair von Oven noted there is passion and then there is anger. He recognizes this group is passionate and stated Chanhassen has a pretty fantastic City Staff and fellow Commissioners. He stated that was uncalled for and he recognizes that people are angry. There is one debatable allegation presented tonight that is not part of what we are here to decide tonight. Chair von Oven appreciates the appeal to include it in there, however the document, when he signs it at the end of the meetings needs to speak to what he believes about what is on the sheet. This is why he was so very adamant about the Appellant pointing out if there is some new finding in the large packet sent earlier in the evening that is part of what they are here to decide tonight. Then he Planning Commission Minutes – September 6, 2022 30 could stand beside it because he has to put his signature next to it. Chair von Oven has poured through the allegations to see if some of the debatable things brought up tonight are truly in here and he stated they are just not. If they were, the Appellant would have his appeal and he would look at it and say yes, that has something that is either against a finding but he cannot go through the allegations presented to Chair von Oven in the context of this meeting and say he disagrees with the findings of City Staff. Will some of what comes through this packet bubble up through City Council and will there be another appeal very focused on one thing that can then be debated by this body? Chair von Oven thinks very possibly, maybe; however, it is not in here right now for him. He loves the analogy of the foundation, but the foundation does not even get poured until the plan is approved which is one of Chair von Oven’s checks and balances. Until all the things that the Appellant is worried about are proven that the plan has solved the puzzle, the foundation does not get poured. The City does not waste all this money, nor does the developer. The only thing they might waste (although he does not think this is a waste) would be time with the City Council discussing what was shared with them as the recommendation and what else is provided to them in the context of this. Commissioner Noyes stated the first thing he is going to do is stand up for Commissioner Johnson noting he does not have a conflict of interest, he has relevant experience. It is nothing less, nothing more. Commissioner Noyes appreciates all the information put together by the Appellant and appreciates the fact that they took the opportunity to use a public forum to get their information out. He would do the same thing if he had the passion for a project. However, as his fellow Commissioners have stated, much of it is not relevant for where they are in this stage. Commissioner Noyes said the Appellants are kind of ignoring or minimizing what this process is about. They keep going back to new things and their experts and their opinions trying to sway the Commissioners to make a change. He stated if they were talking about some of this stuff down the road, Commissioner Noyes would be asking a lot of really pertinent questions, but it is not relevant to where they are. Commissioner Noyes noted it was a lot of great discussion but cannot stop this process because the Appellant brought all their opinions out and he is supposed to take those as facts. He said they are trying to tell him that what the City has put together is misrepresentation of facts and Commissioner Noyes does not know that the Appellant’s isn’t. That is not the agenda for today and he is okay talking about it but thinks they need to focus on how to move forward. Commissioner Noyes noted the Appellants will get a lot of opportunity to talk about this repeatedly, if things don’t line up, if there are water issues, if there is a holding pond issue; that will not be signed off arbitrarily. There will be more discussion about it and Commissioner Noyes has confidence in this process and has confidence the Appellants’ concerns will be heard. However for this appeal tonight, most of what was talked about is outside the scope of what was decided on July 19, 2022. Commissioner Johnson agrees with Chair von Oven and Commissioner Noyes’ points. Regarding the conflict of interest, Commissioner Johnson strongly disagrees noting it was a company he worked for 10 years ago, he has no affiliation, and this is totally false. Commissioner Alto moved, Commissioner Schwartz seconded that the Planning Commission acting as the Board of Appeals and Adjustments deny the appeal and adopts the attached Findings of Fact and Decision. All voted in favor and the motion carried unanimously with a vote of 5 to 0.